IN THE TRIAL CHAMBER
Before: Judge Gabrielle Kirk McDonald, Presiding
Judge Rustam S. Sidhwa
Judge Lal C. Vohrah
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 24 June 1996
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON REQUEST BY ACCUSED MUCIC
FOR ASSIGNMENT OF NEW COUNSEL
Office of the Prosecutor:
Mr. Eric Ostberg
Ms. Teresa McHenry
Counsel for the Accused:
Mr. Robert Rhodes, Q.C., for Zdravko Mucic
I. INTRODUCTION AND PROCEDURAL BACKGROUND
Pending before the Trial Chamber is a request by Zdravko Mucic, a person accused before this International Tribunal and currently detained in the United Nations Detention Unit in The Hague, The Netherlands, for assignment of another counsel.
The request is made pursuant to Article 20(A) of the Directive on the Assignment of Defence Counsel (IT/73/Rev. 2) ("the Directive"), which requires the Trial Chamber to determine whether to grant the request of an accused to be assigned a counsel other than that originally assigned to him by the Registrar of the International Tribunal.
On 5 April 1996, Zdravko Mucic requested the Registrar of the International Tribunal 1996 to assign defence counsel to him on grounds of indigency. On 9 April 1996 the Registrar assigned Mr. Robert Rhodes, Q.C., as defence counsel for Zdravko Mucic. Zdravko Mucic wrote to the Registrar on 14 May 1996 seeking assignment of an alternative counsel for reasons set out in that letter, which do not reflect upon the competence or qualifications of counsel currently assigned.
Both the Registrar and the Deputy Registrar have spoken with Zdravko Mucic at the Detention Unit as to the basis for his desire to have another counsel, and have communicated these reasons to the Trial Chamber. Mr. Robert Rhodes, Q.C., is willing to continue to represent Zdravko Mucic and does not request to be heard in person on this matter, having also set forth his position in writing and in conversations with members of the Registry,
THE TRIAL CHAMBER, HAVING CONSIDERED the submissions of Zdravko Mucic and of Mr. Robert Rhodes Q.C.,
HEREBY ISSUES ITS DECISION.
II. REASONS FOR DECISION
1. The right of an accused to counsel of his own choosing is enshrined in the Statute of the International Tribunal ("the Statute"). Article 21(4)(d) sets out the following minimum guarantee of an accused:
to be tried in his presence, and 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 a any case where the interests of justice so require, and without payment by him in a any such case if he does not have sufficient means to pay for it.
This guarantee of legal assistance is set out in more detail in the Directive adopted by the International Tribunal pursuant to Rule 45 of the Rules of Procedure and Evidence.
2. The Statute does not specifically state that the right to assigned counsel is also a right to assigned counsel of the accuseds own choosing. Indeed, the right to assigned counsel under the Directive is not totally without limit - counsel may only be assigned if they are on a list maintained by the Registrar of the International Tribunal. Counsel seeking inclusion on this list need only indicate: (1) that he is willing to be assigned to indigent suspects or accused; (2) that he is admitted to the practice of law in a State, or is a university Professor of law; and (3) that he speaks one or both of the working languages of the International Tribunal or, in exceptional cases, the language of the accused. However, the practice of the Registry of the International Tribunal has been to permit the accused to select any available counsel from this list and to add counsel to the list if selected by an accused, provided that such counsel meets the necessary criteria. The Trial Chamber supports this practice, within practical limits.
3. Even though an accused has a right to counsel of his own choosing, the overriding interest of the administration of justice means that he should not be permitted to seek withdrawal of his assigned counsel without establishing good cause. The Trial Chamber therefore has a responsibility to examine the reasons for the accuseds dissatisfaction with the counsel assigned and to determine whether those reasons constitute good cause. The Trial Chamber must be satisfied that the reasons are genuine and that the request is not being made for frivolous reasons or in a desire to pervert the course of justice, e.g., by causing additional delay.
4. The attorney-client relationship is based on trust and confidence. Having considered the communications between Zdravko Mucic and the Registry, the Trial Chamber finds that, while no fault attaches, there has occurred a complete breakdown of communication between the accused and his counsel and that such breakdown could adversely affect the rights of the accused. In these circumstances, it would be unfair to both the accused and assigned counsel to require them to continue in a professional relationship.
5. Finally, the Trial Chamber notes that the proceedings in this matter are at an early stage and that the assignment of another counsel will not unduly delay the proceedings.
For the foregoing reasons, THE TRIAL CHAMBER, being seized of the request by the accused, Zdravko Mucic, and
PURSUANT TO Article 21 of the Statute of the International Tribunal, Rule 45 of the Rules of Procedure and Evidence and Article 20(A) of the Directive on the Assignment of Defence Counsel,
HEREBY GRANTS the request of Zdravko Mucic and DIRECTS the Registrar of the International Tribunal to withdraw the assignment of Mr. Robert Rhodes, Q.C. and to assign a new counsel to Zdravko Mucic without delay.
Done in English and French, the English text being authoritative.
Gabrielle Kirk McDonald
Dated this twenty-fourth day of June 1996
At The Hague
[Seal of the Tribunal]