IN THE APPEALS CHAMBER
Before: Judge David Hunt, Pre-Appeal Judge
Registrar: Ms Dorothee de Sampayo Garrido-Nijgh
Order of: 10 May 2000
Zejnil DELALIC, Zdravko MUCIC (aka "PAVO"), Hazim
and Esad LANDZO (aka "ZENGA")
DECISION ON PROSECUTION MOTION FOR FURTHER CLARIFICATION
OF ORDER OF 7 DECEMBER 1999
Office of the Prosecutor:
Mr Upawansa Yapa
Mr Christopher Staker
Mr Norman Farrell
Mr Roeland Bos
Counsel for the Defence:
Mr John Ackerman for Zejnil Delalic
Mr Tomislav Kuzmanovic and Mr Howard Morrison for Zdravko Mucic
Mr Salih Karabdic and Mr Tom Moran for Hazim Delic
Ms Cynthia Sinatra and Mr Peter Murphy for Esad Landzo
1. On 7 December last, the Appeals Chamber made an order which concerned, inter alia, the status of lead counsel for Esad Landzo ("Landzo") in the hearing of his appeal against his conviction.1 The issue as to her status as counsel arose from her need to give evidence in that appeal concerning his Fourth Ground of Appeal.
2. That order ("Order of 7 December 1999") noted Article 16 of the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal, which provides:
Counsel as witness
Counsel must not act as advocate in a trial in which the Counsel is likely to be a necessary witness except where the testimony relates to an uncontested issue or where substantial hardship would be caused to the Client if that Counsel does not so act.
The order went on to state:
CONSIDERING that the effects of Article 16 have been a necessary consideration ever since counsel appearing for the Appellant in the trial was, at his request, assigned as one of two counsel for the Appellant in the hearing of his appeal;
AND CONSIDERING that the operation of Article 16 would cause no hardship to the Appellant, as the co-counsel for the Appellant can present any argument on the Fourth Ground of Appeal;
3. On 16 December, as pre-appeal judge, I gave a decision on a motion by Landzo for clarification of that order.2 It was pointed out that it had been clear beyond any doubt since June 1999 that lead counsel was "likely" to be a necessary witness in the appeal within the meaning of Article 16, and that, as no action had been taken by or on behalf of Landzo to replace her as his counsel for the appeal, it could hardly be said that the operation of Article 16 preventing her from acting as an advocate in the appeal (which was not due to be heard until this year) would cause substantial hardship to Landzo as the client.3 The decision continued:
8. The Appeals Chamber nevertheless felt that, in the circumstances of this case (where there are a large number of diverse issues to be argued in the appeal), the operation of Article 16 could fairly be modified by permitting counsel to act as advocate for Landzo in the appeal for all grounds of appeal other than the Fourth Ground of Appeal. Co-counsel already assigned to Landzo will be able to argue that ground.
4. The prosecution has now sought further clarification of the Order of 7 December 1999.4 It has done so because, it is alleged, notwithstanding that order and the clarification given, lead counsel has continued to sign (and presumably prepare) written submissions, motions and correspondence in relation to the Fourth Ground of Appeal. These documents are identified by the prosecution in its motion.5 At least two of the documents so identified have nothing to do with the Fourth Ground of Appeal,6 but the point is nevertheless well made that lead counsel has continued to act as counsel in the appeal in relation to the Fourth Ground of Appeal.
5. Counsel for Landzo has responded that the only mischief to which Article 16 is directed is that of counsel who has or will become a witness acting as an advocate at the actual hearing of the trial or the appeal, as the case may be.7 That is self-evidently not so. The mischief is that any counsel who is likely to become a witness should not be seen as pleading the case in which he or she is to be such a witness. Advocacy is not restricted to oral submissions. It includes written submissions which, in the practice of the Tribunal, are included in the motions and responses which are filed.
6. Lead counsel should not have continued to act as counsel in relation to the Fourth Ground of Appeal, although no issue has been raised as to her good faith in doing so. Nevertheless, her action in doing something which she had no right to do is a matter which the Registrar will no doubt take into account in relation to the fees submitted by her. Only lead counsel signed the correspondence to which reference is made, but this correspondence has already been acted upon. Insofar as the filed documents are concerned, they are also signed by or on behalf of co-counsel, and are therefore validly filed. No further action need be taken in relation to them.
Done in English and French, the English text being authoritative.
Dated this 10th day of May 2000,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]
1. Order on Motion of the Appellant,
Esad Landzo, for Permission to Obtain and Adduce Further Evidence on Appeal
("Order of 7 December 1999").
2. Decision on Motion by Esad Landzo for Further Clarification of Order of 7 December 1999, 16 Dec 1999.
3. 1Ibid, par 7.
4. Prosecution Response to Esad Landzos Motion for Permission to Allow Expert Witness to View Extracts Tapes and to Admit Expert Opinion as to Sleep Disorders, and Prosecution Motion for Clarification, 3 May 2000 ("Prosecution Motion").
5. Ibid, par 28.
6. Motion of Appellant, Esad Landzo, to Admit as Additional Evidence the Expert Opinion of Francisco Villalobs [sic] Brenes, an Expert on the Law of Costa Rica, 24 Jan 2000, and Response of Appellant, Esad Landzo, to Prosecutors Request to File Supplemental Brief, and, if Necessary, to Supplemental Brief, 7 Mar 2000.
7. Response of Appellant, Esad Landzo, to Motion of Prosecution for Clarification, 8 May 2000, par 5.