THE PRESIDENT OF THE TRIBUNAL
Judge Theodor Meron, President
Mr Hans Holthuis
13 August 2003
DECISION ON ASSIGNMENT OF DEFENCE COUNSEL
- Veselin Sljivancanin has appealed against a 9 July 2003 decision by the
Registrar refusing to assign two attorneys, Goran Petronijevic and Momcilo
Bulatovic, to be his Tribunal-paid defence counsel. For the reasons given
below, I find that the appeal is properly directed to the President. I also
find that the decision with respect to both attorneys must be quashed and
the matter remanded to the Registrar for reconsideration in light of this
- Veselin Sljivancanin was transferred into the custody of the Tribunal on
Tuesday, 1 July 2003. His initial appearance was originally scheduled to take
place before Judge Agius on Thursday, 3 July 2003. The initial appearance
was postponed because Mr. Sljivancanin’s preferred lawyers had not been approved
by the Registrar.1 On 7 July 2003, Mr. Sljivancanin
filed a declaration of means, the initial form necessary to establish indigence
for the purpose of having counsel paid by the Tribunal. On 9 July 2003, the
Registrar informed Mr. Sljivancanin that Mr. Petronijevic and Mr. Bulatovic
would not be assigned to defend him.2 On 10 July,
Mr. Sljivancanin had his initial appearance, assisted by temporary counsel
- In his letter decision of 9 July 2003 rejecting assignment of Mr. Sljivancanin’s
preferred counsel, the Registrar indicated that both proposed counsel failed
to meet Rule 44(A)’s requirement that counsel speak at least one of the Tribunal’s
working languages. The Registrar noted that even counsel who do not fulfil
the language requirement may be appointed, pursuant to Rule 44(B), “on an
exceptional basis, where the interests of justice so demand.” The Registrar
declined to appoint Mr. Petronijevic under the Rule 44(B) exception because
his “history raises questions about his suitability for assignment as counsel,
at Tribunal expense.” The Registrar went on to state, “It appears that Mr.
Petronijevic acquired some international notoriety for his handling of the
criminal case against ethnic Albanians Muhedin Zeka et al., while a district
judge in Serbia in 2000. Given the press coverage of that case, which reflected
negatively on the fame and character of Mr. Petronijevic in matters of justice
and human rights, his appointment now could endanger the repute of this Tribunal,
which must at all times be seen to do justice.” Thus, according to the Registrar,
“the ‘interests of justice’ strongly dictate against his appointment.”
- The Registrar did not explain why Mr. Bulatovic was not suitable for appointment
under the Rule 44(B) exception, but he stated that “StChe accused’s right
to choose his own counsel is limited” and that neither Mr. Bulatovic nor Mr.
Petronijevic had “come forward with any other reasons why the interests of
justice require their assignment.”
- On 14 July 2003, Mr. Sljivancanin filed an appeal of the Registrar’s decision.3
He claims that the Registrar’s decision violates the right, enshrined in Article
21 of the Statute, to have counsel of his own choosing. He states that he
“doSesC not know what kind of judge Mr. Petronijevic was or whom he judged,
but I am convinced that he will work successfully on my case.” He also states
that Mr. Petronijevic and Mr. Bulatovic “will conduct themselves extremely
correctly and will adhere to all the rules and regulations of the International
Tribunal.” He contends that Mr. Petronijevic and Mr. Bulatovic will be better
able to contact defence witnesses and the military authorities in Belgrade
for assistance in preparing his defence than will “an attorney from elsewhere.”
He avers that he has asked Mr. Petronijevic and Mr. Bulatovic to find an attorney
from an English-speaking country with whom they can work, but “when the trial
is under way and the conditions are right.” Finally, he asks that, if it is
not possible for both of his preferred attorneys to be appointed, at least
one of them be allowed to assist him in the preparation of his defence.4
- On 8 August 2003, the Registrar filed a “Submission of the Registrar Pursuant
to Rule 33(B),” which I have interpreted as a response to Mr. Sljivancanin’s
appeal brief.5 He argues that the language competence
requirement is consistent with Article 21 of the Statute, and he provides
some useful information on the origins of the “interests of justice” exception.
He now gives as a reason for refusing assignment to Mr. Petronijevic and Mr.
Bulatovic a ground not clearly stated in his 9 July 2003 letter decision,
namely, that “neither counsel submitted any information with respect to their
relationship to the accused that would give the Registry grounds to believe
that there was a special relationship between them and the accused.”6
More generally, with respect to his application of the “interests of justice”
exception in this case, he states:
The Registry is aware that the language requirement has been waived
in other cases in circumstances that might not necessarily meet the requirements
of “exceptional circumstances.” Nonetheless, the Registry does not consider
that the existence of past precedent should in itself constitute a valid
justification to compel a waiver to the language requirement in this case.
Indeed, it has been the experience of the Registry that the assignment
of counsel who does not speak the working language of the Tribunal has
in some occasions resulted in significant delays and adjournments. The
fact that the Registry may have granted exceptions more freely in the
past should not, as a matter of principle, fetter the Registrar’s discretion
in the future, or otherwise compel him to perpetuate the problems encountered.
The exception, indeed, should not be allowed to swallow the Rule. Accordingly,
the onus should be on the accused and the counsel in question to demonstrate
to the Registrar that exceptional circumstances exist that warrant the
granting of an exception.7
A. Relevant Provisions of Law
- Article 21 of the Statute provides, in relevant part, that “[i]n the determination
of any charge against the accused... the accused shall be entitled to the
following minimum guarantees, in full equality:.... (b) to have adequate time
and facilities for the preparation of his defence and to communicate with
counsel of his own choosing;.... (d)... to defend himself in person or through
legal assistance of his own choosing; to be informed, if he does not have
legal assistance, of this right ; 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 such case if he does not have sufficient means to pay for it.”
- Rule 44 of the Rules of Procedure and Evidence, according to its title,
governs the “[a]ppointment, [q]ualifications, and [d]uties” of counsel. Paragraphs
(A)-( C) of Rule 44 provide:
(A) Counsel engaged by a suspect or an accused shall file a power of
attorney with the Registrar at the earliest opportunity. Subject to any
determination by a Chamber pursuant to Rule 46 or 77, a counsel shall
be considered qualified to represent a suspect or accused if the counsel
satisfies the Registrar that the counsel is admitted to the practice of
law in a State, or is a University professor of law, speaks one of the
two working languages of the Tribunal and is a member of an association
of counsel practising at the Tribunal recognised by the Registrar.
(B) At the request of the suspect or accused and where the interests
of justice so demand, the Registrar may 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 accused. The Registrar may impose such
conditions as deemed appropriate. A suspect or accused may appeal a decision
of the Registrar to the President.
(C) In the performance of their duties counsel shall be subject to the
relevant provisions of the Statute, the Rules, the Rules of Detention
and any other rules or regulations adopted by the Tribunal, the Host Country
Agreement, the Code of Professional Conduct for Defence Counsel and the
codes of practice and ethics governing their profession and, if applicable,
the Directive on the Assignment of Defence Counsel set out by the Registrar
and approved by the permanent Judges.
- Rule 45, according to its title, governs the “[a]ssignment of [c]ounsel.”
Paragraphs (A)-(D) of Rule 45 provide:
(A) Whenever the interests of justice so demand, counsel shall be assigned
to suspects or accused who lack the means to remunerate such counsel.
Such assignments shall be treated in accordance with the procedure established
in a Directive set out by the Registrar and approved by the permanent
(B) A list of counsel who, in addition to fulfilling the requirements
of Rule 44, have shown that they possess reasonable experience in criminal
and/or international law and have indicated their willingness to be assigned
by the Tribunal to any person detained under the authority of the Tribunal
lacking the means to remunerate counsel, shall be kept by the Registrar.
(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.
(D) If a request is refused, a further request may be made by a suspect
or an accused to the Registrar.
- The Directive on Assignment of Defence Counsel (IT/73/Rev. 9, 12 July 2002)
sets out the process by which the Registrar determines whether an accused
is entitled to have his counsel paid for by the Tribunal. Article 14 of the
Directive sets out the standards for counsel to qualify to be placed on the
Registrar’s list of legal aid lawyers. It recapitulates the requirements for
a counsel to qualify for assignment contained in Rule 45(B) and, by incorporation,
Rule 44 of the Rules of Procedure and Evidence. It also contains one additional
requirement, the second in the list contained in Article 14(A):
(i) he is admitted to the practice of law in a State, or is a university
professor of law;
(ii) he has not been found guilty in relevant disciplinary proceedings
against him where he is admitted to the practice of law or a university
professor, and has not been found guilty in relevant criminal proceedings
(iii) he speaks one of the two working languages of the Tribunal, except
if the interests of justice do not require this;
(iv) he possesses reasonable experience in criminal and/or international
(v) he agrees to be assigned as counsel by the Tribunal to represent
any indigent suspect or accused;
(vi) he is or is about to become a member of an association of counsel
practising at the Tribunal.
- Article 13 of the Directive authorizes the President to review at least
some decisions by the Registrar denying assignment of counsel to suspects;
it authorizes the Trial Chamber seised of a case to review those same decisions
by the Registrar when they concern counsel for an accused:
(A) The suspect whose request for assignment of counsel has been denied
may, within fifteen days of the date of notification to him, seek the
President’s review of the decision of the Registrar. The President may
either confirm the Registrar’s decision or decide that a counsel should
(B) The accused whose request for assignment of counsel has been denied,
may, within two weeks of the date of notification to him, make a motion
to the Chamber before which he is due to appear for immediate review of
the Registrar’s decision. The Chamber may
(i) confirm the Registrar’s decision; or
(ii) rule that the suspect or accused has means to partially remunerate
counsel, in which case it shall refer the matter again to the Registrar
for determination of which parts shall be borne by the Tribunal; or
(iii) rule that a counsel should be assigned.
B. Who Reviews the Registrar’s Decision?
- Mr. Sljivancanin sent his appeal to me. The Registrar’s decision suggested
that the review should be undertaken by the Trial Chamber hearing Mr. Sljivancanin’s
case. While the question is not free from doubt, I believe the appeal is properly
directed to the President.8
- Rule 44 establishes the standards for qualification of any defence counsel,
whether paid for by the accused or by the Tribunal. It provides, in paragraph
( B), that “[a] suspect or accused may appeal a decision of the Registrar
to the President.” The text of the Rule leaves unclear the exact referent
of “a decision of the Registrar,” but it would seem to include at least decisions
by the Registrar under paragraph (B) of Rule 44 itself, that is, decisions
either i) not to permit appointment of counsel under the “interests of justice”
exception to the working languages requirement or ii) to impose conditions
on such an appointment.
- Rule 45 governs assignment of defence counsel, that is, qualification of
defence counsel who will be paid by the Tribunal. It does not provide directly
for review of decisions of the Registrar. In paragraph (A), it provides generally
that “assignments shall be treated in accordance with the procedure established
in the Directive” on Assignment of Defence Counsel. With respect to the particular
decision to assign counsel whose name does not appear on the Registrar’s list
of legal aid lawyers, it simply provides, in paragraph (D), that “[i]f a request
is refused, a further request may be made by a suspect or an accused to the
- It is Article 13 of the Directive on Assignment of Defence Counsel that
defines the avenues for review of at least some decisions by the Registrar
concerning assignment of defence counsel who are to be paid by the Tribunal.
As noted above, for suspects, that is, individuals who have not had an indictment
against them confirmed, review is by the President. For accused persons, review
is by the Trial Chamber. Because an indictment against Mr. Sljivancanin was
confirmed on 7 November 1995, he is an accused, not a suspect.9
- While the Registrar’s 9 July letter decision indicated that it was subject
to review under Article 13 – and thus should go to the Trial Chamber for review
– the structure of the Directive and the wording of Article 13 suggest that
the right of review established by Article 13 concerns only Registrar’s decisions
as to whether a suspect or an accused meets the criteria for indigence, not
Registrar’s decisions concerning the qualifications of particular counsel.
Article 13 constitutes chapter four of part III of the Directive. Chapter
four is captioned, “Remedy.” Chapter three, which includes Articles 11 and
12, is titled “The decision.” The decision described in those rules is the
decision “how far the suspect or accused lacks means to remunerate counsel.”10
Article 11 assumes that the counsel selected will be from the list of qualified
counsel maintained by the Registrar. The alternative forms of decision on
appeal envisioned in Rule 13 – confirmation of the Registrar’s denial, a ruling
that “ a counsel” (not the counsel) should be assigned, or,
in the case of Article 13(B), that the accused has means partially to remunerate
counsel – all suggest that the decision under review is simply the one concerning
the suspect’s or the accused’s indigence. Similarly, Article 18 of the Directive,
which incorporates the procedures established in Article 13, concerns withdrawal
of legal aid based on circumstances coming to light that lead the suspect
or accused no longer to qualify as indigent. 11
- The Registrar’s action in this case appears to have been taken under Rule
45, paragraph (C), which provides that “SiCn 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.” There seems to be no dispute that Mr.
Sljivancanin appears to lack the means to remunerate counsel and that his
preferred attorneys are not on the list. As noted above, the Rule does not
provide a right of appeal from such decisions. It simply states, in paragraph
(D), that “[i]f a request is refused, a further request may be made by a suspect
or an accused to the Registrar.”
- Because unless they expressly provide to the contrary, the Rules should
normally be read as affording some avenue for judicial review of administrative
decisions, Rule 45(C)’s incorporation of the standards of Rule 44 may be read
as incorporating the provision for Presidential review of decisions under
Rule 44(B) concerning the “interests of justice” exception to the language
competence requirement.12 For that reason, Mr.
Sljivancanin’s appeal may properly be directed to the President.
C. The Merits
1. The Right to Counsel of One’s Own Choosing
- Mr. Sljivancanin claims that the Registrar’s refusal to assign his preferred
attorneys violates Mr. Sljivancanin’s right to counsel of his own choice,
guaranteed by Article 21, paragraph 4 of the Statute. The claim may quickly
- This case concerns assignment of counsel to be paid for by the Tribunal.
Whatever may be the scope of the right to counsel of one’s own choosing when
a defendant hires his own counsel, the right to publicly paid counsel of one’s
own choice is limited. The ICTR Appeals Chamber and several ICTY Trial Chambers
have repeatedly held that, while the Registrar should normally take a defendant’s
preferences into account, a defendant must accept any duly qualified counsel
appointed from the list maintained by the Registrar.13
I fully concur in that view. To the extent Mr. Sljivancanin challenges the
reasonableness of the language competence requirement itself, that challenge
must certainly fail. As far as I am aware, every court requires attorneys
practicing before it, and especially those paid by it, to be able to function
in the court’s working language. The reasonableness of that requirement is
made all the plainer by the availability of the “interests of justice” exception
2. Standard of Review of the Registrar’s Decision
- It must still be determined whether the Registrar’s application of the
language competence requirement and the “interests of justice” exception in
this case was reasonable.
- The Registrar’s decision to permit or deny assignment of counsel based
on the “interests of justice” exception involves questions both of fact and
of law. The Registrar must first make certain factual determinations, either
about the circumstances of the defendant’s case or, as in this case, about
the counsel in question’s past conduct, or about both. Then, given the facts
as he finds them, he must determine what the “interests of justice” require.
The first part of the Registrar’s task involves, as has been said of his determination
to withdraw legal aid, “an administrative fact-finding procedure.”14
His findings need only be established as more probable than not. Judicial
review of those findings should be somewhat deferential in light of the assignment
to the Registrar of principal responsibility for overseeing the assignment
of defence counsel. As the Appeals Chamber has said in reference to judicial
review of the Registrar’s decision to withdraw legal aid,
Judicial review of an administrative decision by the Registrar... is
concerned initially with the propriety of the procedure by which the Registrar
reached the particular decision and the manner in which he reached it.
The administrative decision will be quashed if the Registrar has failed
to comply with the legal requirements of the Directive.... The administrative
decision will also be quashed if the Registrar has failed... to act with
procedural fairness towards the person affected by the decision, or if
he has taken into account irrelevant material or failed to take into account
relevant material, or if he has reached a conclusion which no sensible
person who has properly applied his mind to the issue could have reached....
there can be no interference with the margin of appreciation of the facts
or the merits of that case to which the maker of such an administrative
decision is entitled.15
Whether the Registrar’s determination of what the “interests of justice”
require is entitled to an equal degree of deference is less clear.
3. Mr. Petronijevic and Mr. Bulatovic
- In determining that Mr. Petronijevic and Mr. Bulatovic should not be allowed
to serve as assigned counsel under the “interests of justice” exception to
the language competence requirement, the Registrar relied on a number of newspaper
and magazine articles, judicial documents, and reports by inter-governmental
or non-governmental organizations. According to Registry staff, however, the
Registrar did not afford Mr. Sljivancanin an opportunity to respond to the
(non-confidential) evidence against his preferred attorneys, or at least to
a summary of that evidence. The Registrar’s failure to do so represented “a
failSureC to act with procedural fairness.”16
For this reason, the Registrar’s decision must be quashed and the matter remanded
to him for reconsideration. The Registrar, of course, cannot be required to
conduct a mini-trial each time a defendant seeks assignment of a particular
lawyer. He need not hold a hearing of any kind. But the Registrar must provide
the accused with at least a summary of the evidence upon which the Registrar
intends to rely, and he must take into account whatever materials the accused
(in consultation with his preferred attorney) wishes to submit within some
very short period to be determined by the Registrar so as to avoid undue delay.
It is important to emphasize that the requirement to give the affected accused
an opportunity to respond to at least a summary of the evidence upon which
the Registrar intends to rely does not in any way relieve the accused of the
burden of establishing that the interests of justice demand the assignment
of the preferred attorney. Nor does it restrict the discretion of the Registrar
in defining the bounds of the “interests of justice ” exception.17
- While the Registrar possesses the authority and the responsibility to define
the “interests of justice” exception in the first instance, he must apply
the definition consistently across cases. In at least two recent cases, the
Registrar has indicated that, in the absence of other considerations, the
interests of justice exception would be satisfied if the accused were to demonstrate
that i) his preferred attorney had represented him previously before a national
court in relation to the charges now being brought before the ICTY or related
charges18; ii) the accused (and his preferred
attorney) have identified an individual willing to serve as co-counsel who
speaks one of the working languages as well as the language of the accused
well;19 iii) the proposed co-counsel has sufficient
experience as a criminal defence attorney that he could take over the case
if the lead counsel were to withdraw for any reason; and iv) all expenses
for interpretation and translation beyond those usually provided by the Tribunal
would be borne by the accused or the lead counsel.20
- As noted earlier, the Registrar asserts in his Response that he must be
able to change his interpretation of the “interests of justice” exception
in light of experience and that therefore he cannot be bound to apply the
same interpretation in every case.21 The Registrar
is certainly correct that he has the authority to change the criteria he uses
in giving meaning to the “interests of justice” exception. For example, if
the Registrar determines that allowing assigned counsel who do not speak at
least one of the working languages has led to enormous delays and that therefore
he should restrict the circumstances in which he will grant assignment pursuant
to the “interests of justice” exception, he is free to do so. In doing so,
however, he must observe the following procedural regularities. Those regularities
are intended to ensure fairness to affected parties, to improve the accuracy
of the Registrar’s decisions, and to establish a basis for effective judicial
review of the Registrar’s decisions. First, the Registrar must explain that
he is changing the meaning of the “interests of justice” exception and why
he is doing so. Second, he should do so in a way that does not leave a particular
applicant facing new standards of which he could not reasonably be aware.
He may seek an amendment of the Directive. He may make a general statement
to the Association of Defence Counsel and ask them to publicize it, e.g.,
by posting it on the Association’s website. He may also announce a new
interpretation in the course of ruling on a particular request for assignment
of counsel, so long as he makes clear to the affected parties the standards
upon which the request for assignment will be judged.
- In this case, neither the Registrar’s 9 July letter decision nor his Response
suggests that he was applying a novel interpretation of the “interests of
justice ” exception. The fact that the Registrar handed down his decision
in this case just two weeks after one of the decisions in which he relied
on the four criteria mentioned above and just nine days before the other decision
in which he relied on those criteria makes it hard to imagine that those were
not the criteria upon which the Registrar was acting when he handed down the
decision in this case. It is therefore with those criteria in mind that I
have reviewed the record upon which the Registrar made his decision.
- The materials concerning Mr. Petronijevic do not show whether the four
criteria noted in the previous paragraph are satisfied in his case. They do
suggest that, even if those four criteria were satisfied, a countervailing
consideration may exist that might justify denying assignment under the “interests
of justice” exception. The materials indicate that Mr. Petronijevic may have
acted improperly when he served as a trial judge in Serbia. In particular,
they suggest that in one trial involving 143 ethnic Albanian defendants from
the area of Djakovica in which he served as presiding judge he may have violated
the defendants’ fundamental rights and convicted many of them in the absence
of any evidence of individual guilt. The Registrar understandably found those
claims troubling. If Mr. Petronijevic were the only attorney whose assignment
Mr. Sljivancanin had sought, it would be necessary to determine whether those
claims of judicial impropriety, if found by the Registrar to be more likely
than not true, would suffice by themselves to justify refusing to assign Mr.
Petronijevic. Because Mr. Sljivancanin has indicated that he would be happy
to have either Mr. Petronijevic or Mr. Bulatovic assigned, and because, as
noted below, the record concerning Mr. Bulatovic does not raise the possibility
of any disqualifying consideration of this sort, it is not necessary to reach
that question. It is sufficient to hold that, if the Registrar finds the claims
of Mr. Petronijevic’s past judicial impropriety more likely than not true,
and he finds Mr. Bulatovic to be otherwise qualified for assignment, he should
assign Mr. Bulatovic rather than Mr. Petronijevic as lead counsel.
- The evidence concerning Mr. Bulatovic appears to support the propriety
of his appointment as defence counsel. It shows him to be an experienced defence
lawyer, and one who has represented a controversial Bosnian Muslim client.
It does suggest that, as a political figure, he favors less cooperation with
the Tribunal than does the party in power in Serbia-Montenegro or Serbia,
but that hardly makes him unfit to represent a defendant in a criminal proceeding
here. Those materials do not reveal any countervailing consideration of the
sort identified by the Registrar in Mr. Petronijevic’s case.
- In his Response, the Registrar asserts that both Mr. Petronijevic and Mr.
Bulatovic failed to satisfy the first criterion described in paragraph 24,
that is, having developed a relationship of trust with Mr. Sljivancanin in
the course of representing him before national courts in relation to the charges
he faces before this Tribunal or related charges.22
If so, that would supply a sufficient basis for refusing to invoke the “interests
of justice ” exception and thus for refusing to assign either of them as defence
counsel for Mr. Sljivancanin. The Registrar’s 9 July letter decision, though,
certainly suggests that the Registrar’s refusal to assign Mr. Petronijevic
was based on another ground, namely, his conduct when serving as a judge in
2000. The letter decision is less clear when it comes to Mr. Bulatovic, though
it does refer in general terms to both attorneys’ “failSureC to come forward
with any other reasons why the interests of justice require their assignment.”
The party seeking assignment of counsel bears the burden of convincing the
Registrar that his preferred attorney meets the relevant criteria. The Registrar
bears the responsibility to make clear the basis for his decisions. On remand,
the Registrar should give Mr. Sljivancanin a brief opportunity to establish
that Mr. Petronijevic and Mr. Bulatovic satisfy the four criteria noted above.
If they fail to do so, the Registrar should refuse them assignment. If they
both satisfy those criteria or if Mr. Bulatovic does, the Registrar should
assign Mr. Bulatovic as lead counsel.
- The Registrar’s decision is quashed and the matter is remanded to him for
reconsideration in light of this decision.
Done in English and French, the English text being authoritative.
Dated this 13th day of August 2003,
At The Hague,
Judge Theodor Meron
[Seal of the Tribunal]
1 - See The Prosecutor v. Veselin Sljivancanin,
IT-95-13/1-PT, Tr. 3 July 2003, pp. 95, 99-100, 104-106, 108-109 The Registry
received a faxed power of attorney for Mr. Petronijevic and Mr. Bulatovic, signed
by Mr. Sljivancanin, on 24 June 2003.
2 - The Registrar’s letter decision is dated 9 July 2003. Mr.
Sljivancanin acknowledged at the 10 July initial appearance that he had been informed
of the Registrar’s decision orally on 9 July 2003 and that he had received the
Registrar’s letter decision in English. He stated that he had yet to receive a
B/C/S translation of the letter decision. The Prosecutor v. Veselin Sljivancanin,
IT-95-13/1-PT, Tr. 10 July 2003, p. 119.
3 - On 11 July 2003, Mr. Petronijevic and Mr. Bulatovic had
addressed a letter to me stating, among other things, that they did not make any
statements to two B/C/S-language newspapers published in Frankfurt. I have not
considered this letter in reaching my decision. I would note, however, that the
Registrar did not rely on any articles from those publications in reaching his
4 - On 22 July 2003, Mr. Petronijevic filed a document styled
“Appeal of Mr. Goran Petronijevic on the Registry’s Decision Declining Assignment
of Defence Counsels to the Accused.” Mr. Petronijevic claimed to be filing the
document pursuant to Article 14(D) of the Directive on Assignment of Defence Counsel.
That Article addresses decisions by the Registrar to refuse assignment of counsel
based on the initiation of contempt or disciplinary proceedings against counsel.
The Registrar’s decision reviewed here was not made pursuant to Article 14 of
the Directive (as should have been clear to Mr. Petronijevic), and thus Mr. Petronijevic’s
filing is not relevant to the case at hand. Moreover, as the Registrar points
out, it is the suspect or the accused, not the affected counsel, who has a right
to appeal against decisions concerning assignment of defence counsel made pursuant
to Article 13 of the Directive or Rule 44(B) of the Rules of Procedure and Evidence.
See Submission of the Registrar Pursuant to Rule 33(B) (“Registrar’s Response”),
para 2. While the Judge or Chamber hearing an appeal may decide to permit filings
by persons with an interest in a case other than the parties themselves, I have
not done so here.
5 - Rule 33(B) provides:
(B) The Registrar, in the execution of his or her functions, may make oral and
written representations to the President or Chambers on any issue arising in the
context of a specific case which affects or may affect the discharge of such functions,
including that of implementing judicial decisions, with notice to the parties
Although the relevant portions of neither the Directive on Assignment of Defence
Counsel nor the Rules of Procedure and Evidence provide for the filing of a response
by the Registrar in appeals against his decisions concerning assignment of defence
counsel, I believe the Registrar would be entitled to file such a response even
in the absence of Rule 33(B). Whether a responsive filing by the Registrar in
cases such as this one is properly understood as a submission pursuant to Rule
33 or not, though, it must be made in a timely fashion. Neither Rule 33, nor Rule
44, nor Article 13 of the Directive sets a deadline for the filing of a response.
Article 13(B) gives an accused two weeks to file an appeal. Rule 126 bis
of the Rules provides a default deadline of two weeks for the filing of responses
to motions. In the circumstances, the Registrar could not have reasonably imagined
that he would be allowed more than two weeks to file a response to Mr. Sljivancanin’s
appeal. I therefore consider his filing to have been done out of time. Because
of the uncertainty concerning the relevant deadlines, though, I will excuse the
late filing in this instance. I trust the Registrar will act more expeditiously
in similar appeals in the future.
6 - Registrar’s Response, para. 15.
7 - Id., para. 10. Having weighed the various interests involved,
I have made my decision without waiting to see whether Mr. Sljivancanin would
seek to file a reply.
8 - In his letter decision of 9 July 2003, the Registrar relied
on Rules 44(A) and 44(B) for his decision and informed Mr. Sljivancanin that “[y]ou
are entitled to appeal this decision in accordance with Article 13(B).” That would
have meant appeal to the Trial Chamber. At the initial appearance on 10 July 2003,
David Pimentel, Chief of Court Management, reaffirmed this view (though he misspoke
by referring to Article 13(A), concerning suspects, rather than Article 13(B),
which concerns accused persons). See The Prosecutor v. Veselin Sljivancanin,
IT-95-13/1-I, Tr. 10 July 2003, p. 120. Judge Agius informed Mr. Sljivancanin
that he could appeal the Registrar’s decision to the President. Id.
9 - See The Prosecutor v. Mrksic et al., IT-95-13-I,
Confirmation of the Indictment, 7 November 1995. The indictment was amended in
1996 and 1997. Trial Chamber II is presently considering a prosecution motion
for a further amendment of the indictment. See The Prosecutor v. Mrksic et
al, Prosecution’s Motion for Leave to File a Consolidated Amended Indictment,
filed 21 July 2003.
10 - Article 11(A).
11 - Cf. Prosecutor v. Kvocka et al., IT-98-30/1-A,
Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Zigic,
paras. 1-2 (describing Article 13 and Article 18 as providing a right of review
of Registrar’s decisions to “refuse legal aid” or “withdraw legal aid”) (Kvocka
12 - Rule 45(C) does not define the “particular circumstances”
(beyond counsel’s compliance with the requirements of Rule 44) in which the Registrar
should accede to an indigent suspect or accused person’s request for assignment
of counsel not on the Registrar’s list. Nor does it explain why counsel assigned
in this way apparently needs only to meet the requirements of Rule 44, while those
assigned from the list must meet the additional requirements set out in Rule 45(B).
13 - See, e.g., Kambanda v. The Prosecutor, ICTR-97-23-A,
Appeals Chamber Judgement, 19 October 2000, para. 33; The Prosecutor v. Akayesu,
ICTR-96-4-A, Appeals Chamber Judgement, 1 June 2001, paras. 61-62; Prosecutor
v. Blagojevic and Jokic, IT-02-60-T, Decision on Independent Counsel for Vidoje
Blagojevic’s Motion to Instruct the Registrar to Appoint New Lead and Co-counsel,
3 July 2003, paras. 74-75; Prosecutor v. Kenezevic et al., IT-95-4-PT,
Decision on Accused’s Request for Review of Registrar’s Decision as to Assignment
of Counsel, 6 September 2002, p. 3; cf., e.g., Lagerblom v. Sweden, European
Court of Human Rights, Judgment of 14 January 2003, para. 54; Croissant v.
Germany, European Court of Human Rights, Judgment of 28 August 1992, para.
14 - Kvocka Decision, para. 12.
15 - Id.
16 - Id.
17 - It should also be emphasized that the accused (and thus
his preferred attorney) need not be given an opportunity to respond to all the
materials collected by the Registrar, only to those upon which the Registrar intends
actually to rely in making his decision.
18 - I understand this to include representation of the accused
in the extradition proceedings leading to the accused’s transfer to the Tribunal.
19 - There is some support for that approach in the “legislative
history” of paragraph (B) of Rule 44. That paragraph was added at the December
2000 plenary. Judge May urged that the interests of justice exception be used
sparingly. Judge Robinson contended that it should be used generously to guard
the rights of the accused. Judge Hunt suggested a middle course that he thought
reflected Tribunal practice. He stated:
The real problem that arises, I think, is where for each accused neither counsel
speaks one of the languages. The problem that arises is when the Prosecution attempt
to deal with counsel for the accused as to witnesses to be called and various
matters that arise out of our hearing, and they are having a great problem in
communicating with these particular counsel for the accused.
The Registrar may (and in my view, should) be demanding in ensuring that the working
language competence, in this case competence in English, of the co-counsel is
extremely high. At the same time, Mr. Sljivancanin is mistaken to the extent he
believes, see para. 6 supra, that the co-counsel must come from
an English-speaking country. Mr. Sljivancanin is also mistaken in believing,
see id., that assignment of co-counsel may be postponed until trial. The Registrar
establishes the deadlines for identification and assignment of co-counsel.
20 - The Prosecutor v. Stanisic, IT-03-69-PT, Decision
of the Registrar, 18 July 2003, p. 2; Letter from the Registrar to Mr. Zeljko
Olujic, 25 June 2003. The letter to Mr. Olujic concerns The Prosecutor v. Ivica
Rajic, IT-95-12-PT. The letter to Mr. Olujic is not a formal decision, but
a proposal setting out the criteria upon which the Registrar “may favourably consider”
the request for assignment in that case.
21 - See supra para. 6; Registrar’s Response, para.
22 - See Registrar’s Response, para. 15.