IN THE APPEALS CHAMBER
Before: Judge David Hunt, Pre-Appeal Judge
Registrar: Mrs Dorothee de Sampayo Garrido-Nijgh
Order of: 16 December 1999
Zejnil DELALIC, Zdravko MUCIC (aka PAVO), Hazim DELIC
and Esad LANDZO (aka ZENGA)
DECISION ON MOTION BY ESAD LANDZO
FOR CLARIFICATION OF ORDER OF 7 DECEMBER 1999
Office of the Prosecutor:
Mr Upawansa Yapa
Mr Christopher Staker
Mr Norman Farrell
Mr Rodney Dixon
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 Lando
1. The appellant Esad Lando (Lando) seeks clarification of the Order on Motion of the Appellant, Esad Lando, for Permission to Obtain and Adduce Further Evidence on Appeal, made on 7 December 1999.1
2. The motion by Lando to which that Order related concerned a ground of appeal filed by him complaining that his right to a fair trial had been violated because the Presiding Judge of the Trial Chamber "was permitted to sleep through much of the proceedings" ("Fourth Ground of Appeal"). That motion sought to have the Appeals Chamber
(i) order or request the appropriate official to waive any privilege or immunity in respect of the former President (Judge Cassese), the Registrar, and the Senior Legal Officer of the Trial Chamber ("proposed witnesses"),
(ii) order or request the proposed witnesses to testify by deposition, and
(iii) order or request the former President and the Registrar to produce documents
concerning discussions which they were alleged to have had with counsel appearing for Lando at the trial. Such evidence is said to be relevant to an issue raised by the prosecution that, by reason of his failure to raise the alleged violation at the trial, Lando had waived his right to complain of that violation on appeal.
3. The Appeals Chamber dismissed that motion upon various bases, but relevant to at least two of those bases was a conclusion by the Appeals Chamber that the evidence of the proposed witnesses was unnecessary because:
(a) the prosecution was prepared to accept certain undertakings in relation to a substantial part of the evidence which, it was said, those proposed witnesses could give, and
(b) counsel who had appeared for Lando at the trial could give evidence of the remaining matters not covered by the undertakings which the prosecution was prepared to accept.
(In relation to at least one of the matters which Lando wished to prove, evidence could only have come from counsel.)2
4. As counsel who appeared for Lando at the trial was also, at his request, assigned as one of the two counsel appearing for him at the appeal, an issue arose as to the effect of Article 16 of theCode of Professional Conduct for Defence Counsel Appearing Before the International Tribunal, which provides:
Article 16 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, therefore, to say:
NOTING Article 16 of the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal, which provides that counsel must not act as advocate in a matter in which they are likely to be a witness except where the testimony relates to an uncontested issue or where substantial hardship would be caused to the client ("Article 16");
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;
5. It is in relation to these three paragraphs of the Order that Lando seeks clarification. In the light of the terms of Article 16, it is (with respect) difficult to see what clarification is needed.
6. The Appeals Chamber expressed the conclusion in the Order that the prosecution had already raised the issue of waiver.3 The prosecution had done so when Lando first sought access to the daily videotapes taken of the trial in support of his assertion that the judge had been asleep, by submitting that the ground of appeal directed to that assertion should be dismissed in limine because Lando had failed to object to such conduct at the trial.4 In reply, Lando stated that counsel then appearing for him had informally brought the matter to the attention of the then President of the Tribunal (Judge Cassese) and the Senior Legal Officer of the Trial Chamber.5 When disposing of that motion, the Appeals Chamber ruled that the issue raised as to waiver was one to be determined in the appeal. The application was dismissed in the absence of any evidence that access to the tapes would materially assist in the presentation of the appeal.6 Lando made a second application supported by evidence (including an affidavit by counsel who had appeared for him at the trial) that the judge had appeared to be asleep at times during the trial.7 The prosecution stated that, in deference to the previous decision of the Appeals Chamber, it "will" still argue in the appeal that this ground of appeal should be rejected, inter alia, on the basis of waiver.8 The Appeals Chamber granted access to the videotapes.9
7. If it had not been apparent before, by that time (June 1999) it was clear beyond any doubt that counsel appearing for Lando in the appeal was likely to be a necessary witness in the appeal within the meaning of Article 16. But counsel remained assigned to appear for Lando in that appeal, and no action was taken by or on behalf of Lando to obtain fresh counsel to replace her. In those circumstances, it could hardly be said that the operation of Article 16 preventing counsel from acting as an advocate in the appeal (which will not be heard until some time early next year) would cause substantial hardship to Lando as the client.
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 Lando in the appeal for all grounds of appeal other than the Fourth Ground of Appeal. Co-counsel already assigned to Lando will be able to argue that ground. That situation will continue whilst counsel remains "likely" to be a witness, and (at least in my own view) she will continue to remain so. The issue of waiver having already become apparent, it is open to the Appeals Chamber to consider that issue whatever attitude the prosecution may now decide to take in relation to it.
9. In those circumstances, it is strictly unnecessary to deal with the significance to Article 16 of the affidavits by counsel which have already been filed in support of various motions in the appeal, but in my view they do not by themselves render counsel "likely" to be a necessary witness in the appeal.
Done in English and French, the English text being authoritative.
Dated this 16th day of December 1999,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]