Background
- This Trial Chamber of the International Tribunal
for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed
in the Territory of the Former Yugoslavia since
1991 (“Tribunal”) is seized of an “
Appeal of the Registry’s Decision Regarding the Assignment
of Co-counsel” filed
on 2 June 2005 by Radivoje Miletic” (“Appeal”).1
By the contested decision, communicated to Radivoje
Miletic (“Accused”) in a letter
of 27 May 2005 (“Decision”), the Registrar, acting
by the Deputy Head of the Office for Legal Aid and
Detention Matters (OLAD), refused the Accused’s request
for the assignment of Mr Nenad Petrusic as co-counsel
for his trial. On 14 June 2005 the Defence submitted
an “Addendum to the Appeal of 2 June 2005”.2
On 27 June 2005, at the request of the Trial Chamber,
the Registrar filed a confidential
3 “Registry
Submission Pursuant to Rule 33 of the Rules of Procedure
and Evidence Regarding Radivoje Miletic’s Motion
for Review of the Registry Decision on the Assignment
of Co-counsel” (“Registry
Submission”). On 29 June 2005 the Prosecution filed
under seal its “Response to
the Trial Chamber’s Request for Comments from the Prosecution
on the Issue Raised in the Registrar’s Decision of
27 June 2005 Regarding Assignment of Co-counsel for
the Accused Radivoje Miletic” (“Prosecution Response”).
On 30 June 2005 the Defence filed a partially confidential “Request
for Leave to Reply and Reply to the Submission by
the Registry Concerning the Assignment of Co-counsel” (“Reply”).4
The Trial Chamber grants leave to reply and takes note
of the contents of this Reply.
- On 8 April 2005 the Accused had informed the Registry
that he wished to have Ms Natacha Fauveau-Ivanovic
assigned as his Defence Counsel. Ms Fauveau satisfied
the criteria provided by the Rules of Procedure
and Evidence (“Rules”) and the Directive
on Assignment of Defence Counsel (“Directive”) and
she was assigned as the Accused’s
Defence Counsel on 14 April 2005. The Accused had
earlier sought to have Mr Nenad
Petrusic assigned as his (Lead) Defence Counsel, but
by letter of 4 April 2005 he was formally advised
by the Registry that this was refused because Mr Petrusic
did not meet the language qualification i.e., he was
not proficient in one of the two working languages
of the Tribunal.
- On 20 April 2005, Ms Fauveau, having been duly
assigned as (Lead) Defence Counsel for the Accused,
requested the assignment of Mr Petrusic as co-counsel
pursuant to Article 16(C) (ii) of the Directive.
The Directive had been adopted by the Registrar
Pursuant to Rule 44(C) of the Rules and approved
by the Permanent Judges of the Tribunal. This was
refused by the Decision of the Registrar (“Decision”),
acting by the Deputy Head of OLAD, and was communicated
by the letter dated 27 May 2005. On 2 June 2005 the Motion for Review of the Registrar’s
Refusal was filed.
The Decision
- In the Decision, after reciting briefly the
history of discussions and requests between the
Accused and OLAD concerning the representation of
the Accused, it was said that the Registry
“… is unable to grant your request for the assignment
of Mr Petrusic as co-counsel. The Registry believes that Mr. Petrusic’s representation
of General Militic would conflict with his former
representation of General Krstic and, as such, would
be contrary to the interests of Justice”
- In the two paragraphs of the letter that followed,
the factual basis for the conclusion about a conflict
of interest is detailed. This drew on the circumstances
alleged in the indictment and findings made in the
earlier trial of General Krstic and in other proceedings
in this Tribunal in connection with the same events.
The focus was on the relationship between the Main
Staff of the VRS of which the Accused is alleged
to have been the most senior Operations Officer holding
the post of Chief of Operations and Training, and
the Drina Corps which was directly subordinated
to the Main Staff at the relevant time and of which
General Krstic was the Commander. It is alleged
by the prosecution inter alia that the Drina
Corps and General Krstic implemented orders and
directives of the Main Staff in pursuing, in particular, an alleged Joint Criminal Enterprise to force the
Muslim population out of the Srebrenica and Zepa
enclaves. It is the prosecution case that the Accused
was also a participant in this Joint Criminal Enterprise.
- General Krstic was convicted after trial, and
remains so after appeal, of offences, which, in
part, are the same as those with which the Accused
is charged. He was represented at his trial by Mr Petrusic.
- The decision continues:
“…The nexus between the Main Staff and the Drina Corps
and the positions held by General’s Militic and Krstic
during the relevant period demonstrate that there is
a real possibility that your client’s interests require
him to take a position that would be adverse to the
interests of General Krstic. If this were to happen,
Mr
Petrusic would be placed in a conflict of interest
situation.”
The decision continues a little later:
“In this case, based on the facts outlined above, the
Registry has assessed that the likelihood of a conflict
of interest arising is reasonably high. “
- The Decision then analyses the likely effects
on the trial and on the Defence of the Accused should
an actual conflict situation arise, notes that withdrawal
of co-counsel would harm the Accused’s Defence and
disrupt the proceedings and may prejudice the administration
of justice, and observes, from experience in other
cases, that a withdrawal of co-counsel can create
significant delays in proceedings. For these reasons,
rather than an-assignment of Mr Petrusic as co-counsel
being in the interests of justice, as required
by the Rules and the Directive for the Registrar
to exercise his discretion to allow the assignment
of Mr Petrusic, it
was the conclusion of the Registrar that an assignment
of Mr Petrusic would be contrary
to the interests of justice.
The Decision concludes that:
“In light of above, the waiver by General Krstic on
9 February 2005 cannot have the effect of validating
the assignment of Mr Petrusic.”
Assignment of Counsel
- By Article 21(4)(D) of the Statute of the Tribunal
an Accused has the right to “Defend himself in person
or through legal assistance of his own choosing”.
Necessarily, of course, the right of an Accused
to choose his or her counsel is limited to counsel
qualified to appear before the Tribunal. Rule 44
sets out the required qualifications. They are extensive
and deal in particular with the legal qualification,
good standing and professional conduct of the counsel.
There is a specific requirement that counsel has
written and oral proficiency in one of the two working
languages of the Tribunal, although, it is also provided
that where the Registrar deems it to be in the interests
of justice to waive this requirement, he may do
so. In such an exceptional case, however, by Rule 44(D)
he may impose conditions inter alia respecting
the costs of translation and interpretation, and
requiring an undertaking from counsel not to seek
any extension of time by virtue of his lack of proficiency
in one of the working languages of the Tribunal.
- The present is not such a case, however, as
the Accused hasn’t the means to
remunerate counsel of his choice. Instead, he sought
the assignment of a counsel by the Registrar pursuant
to the legal aid scheme of the Tribunal. This is
administered pursuant to Rule 45 and the Directive;
see Rules 44(C) and 45(A). For this purpose
the Registrar maintains a list of counsel, who possesses
additional specific competence related to the jurisdiction
of the Tribunal, have at least 7 years relevant experience, and have indicated their availability and willingness
to be assigned to represent persons.
Legal basis for review
- By Rule 44(B) an Accused may seek a review by
the President of a Decision of the Registrar to
refuse to admit counsel of an accused’s choice who
has been retained by the Accused, but who does not
meet the language requirement. In the case of the
assignment of counsel to an Accused under the legal
aid scheme (Rule 45), however, there is no provision for such a review by the President.
- As the jurisprudence of the Tribunal has recognised,
however, it does not follow that the Registrar’s
decision to refuse a requested assignment of co-counsel
is altogether final. In a number of decisions in
this Tribunal it has been recognised that it is
inherent in the judicial function of the Tribunal
that a decision of the Registrar which affects,
or is likely to affect, the right of an Accused to
a fair and expeditious trial or the integrity of
the proceedings, may be reviewed by the Trial Chamber
before which the trial is to be held, or is being
held.5
- It has been made clear, that this jurisdiction
is limited to cases which meet those jurisdictional
conditions. Even then, it is not the role of the
Trial Chamber to intervene in every complaint, recognising
that the Registrar has primary responsibility in
the matter of the assignment of counsel and co-counsel.6
Indeed in the Knezevic case, it was observed
that a Chamber should only exercise its power relating
to the assignment of counsel “in exceptional cases”. 7
- In a case where a jurisdictional basis exists
for a Trial Chamber to entertain a motion to review
the refusal of the Registrar to assign a requested
co-counsel, some guidance as to the approach to
a review of the merits by the Trial Chamber and
the standard to be applied in determining whether
to interfere with a decision of the Registrar, may
be found in the Appeals Chamber’s decision in Kvocka
et al where it was said
“The administrative decision will be quashed if the
Registrar has failed to comply with the legal requirements
of the Directive. This issue may in the particular
case involve a consideration of the proper interpretation
of the Directive. The administrative decision will
also be quashed if the Registrar has failed to observe
any basic rules of natural justice or to act with
procedural fairness towards the person affected by
the decision or if he has 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 (the “unreasonableness” test).
These issues may in the particular case involved,
at least in part, a consideration of the sufficiency
of the material before the Registrar, but (in the absence
of unreasonableness) there can be no interference
with the margin of appreciation of the facts or merits
of that case to which the maker of such an administrative
decision is entitled.” 8
- As the Chamber understands the submissions
of the Accused their effect is that the decision
of the Registrar should be quashed, and Mr Petrusic
should be assigned as co-counsel by the Chamber,
on two bases each of which is within the principles
enunciated in the Kvocka et al decision.
First, it is contented the Registrar’s
decision involves a rejection of the Accused’s legal
right to conduct his defence by counsel of his own
choosing and, secondly, it is argued he reached wrong
conclusions about the existence and significance of
the conflict of interest identified by the Registrar
and therefore failed properly to determine whether
the interests of justice would be served by the assignment
of Mr Petrusic.
- The first of these contentions is based on
a misconception of the legal position. As has been
indicated, the Accused has not the financial means
to retain his own counsel. The counsel he selected
to conduct his defence from the list of qualified
counsel who were prepared to act under the legal
aid scheme at the Tribunal has been assigned to
him. In this case, the Registrar, in the exercise
of his discretionary power to assign counsel to
the Accused under the legal aid scheme, not only
took into account the Accused’s expressed preference
to be assigned Ms Fauveau as his
(lead) defence counsel, but gave full effect to Accused’s
expressed preference and assigned Ms Fauveau. Strictly,
the legal position with respect to the assignment
of Ms Fauveau as (lead) defence counsel is that described
in the Sljivancanin
decision where it was said by the President of
the Tribunal:
“19. 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, para 4 of the Statute.
The claim may be quickly rejected.
20. This case concerns the assignment of counsel
to be paid for by the Tribunal. Whatever may be
the scope of the right to counsel of ones own choosing
when a defendant hires his own counsel, the right
to publicly paid counsel of ones 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. I fully concur in that view.”9
- Thus, while it is not a matter of legal right,
well founded notions of fairness are reflected in
the view expressed in the Sljivancanin decision,
and in the earlier Trial Chamber decision. In Martic it
is suggested that the Registrar in the exercise
of his discretionary power to assign counsel should
respect the choice of an accused unless there are
well-founded reasons not to assign the chosen counsel.10
- It is to be noted that this concern for fairness
appears to be in general keeping with the approach
of the European Court of Human Rights, in respect
of Article 6
(3)(c) of the European Convention of Human Rights,
as expressed in Croissant
v Germany, where it was said
“It is true that Article 6(3)(c) entitles ‘everyone
charged with a criminal offence’
to be defended by counsel of his own choosing. Nevertheless,
and not withstanding the importance of a relationship
of confidence between the lawyer and client, this
right cannot be considered to be absolute. It is necessarily
subject to certain limitations where free legal aid
is concerned and also where, as in the present case,
it is for the courts to decide whether the interests
of justice require that the Accused be defended by
counsel appointed by them. When appointing defence
counsel the National Courts must certainly have regard
to the defendant’s wishes; indeed, German Law contemplates such course. However, they
can override those wishes when there are relevant
and sufficient grounds for holding that this is necessary
in the interests of justice”.11
- It is to be emphasised, however, that the issue
in this case concerns the assignment of co-counsel,
not the (lead), defence counsel. Under the terms
of Article 16 of
the Directive, it is the lead counsel, rather than
the Accused, who seeks the assignment of a co-counsel.
There is a different emphasis in the case of the
appointment of co-counsel. The primary focus is
on the needs of the Accused’s lead counsel for
suitable assistance by counsel chosen by the lead counsel,
rather than on the preferences of the Accused. Indeed,
it has been held by the Appeals Chamber in Blagojevic
that lead counsel may seek the appointment of a
nominated co-counsel without the Accused’s agreement
to the choice of co-counsel. It was said by the Appeals
Chamber:
“As already stated, the appointment of co-counsel is
a decision to be made by Counsel pursuant to Article 16
of the Directive. In this respect, provided the Registrar
is satisfied that the nominated person meets the requirements
of Article 14 of the
Directive, the propriety of Counsel seeking the appointment
of a particular person does not turn upon the awareness
of an Accused of the likelihood of such an appointment
or upon the agreement of an Accused to that appointment.”
- It was further said
“Further, while the selection of Co-counsel is a matter
which falls to lead Counsel under Article 16 of the
Directive, the selection of lead Counsel is a matter
which falls to the Registrar under Article 14 of the
Directive. The Registrar may take into account an
Accused’s preferences, as he did in the appointment
of lead counsel in this case, but it is within the
Registrar’s discretion to override that preference
if he considers that it is in the interests of justice
to do so.” 12
- The apparent effect of these decisions is that
the assignment of co-counsel is not a matter involving
the legal right of the Accused to be represented
by counsel of his own choosing. Nevertheless, as
they also indicate, considerations of fairness emphasise
the desirability of the Registrar also taking into
account any preference expressed by the Accused,
as to the co-counsel to be assigned. In a case such
as the present in which in fact the lead counsel
and the Accused each favour the assignment of Mr Petrusic,
the Registrar would normally be expected to take
into account the Accused’s preference and would
no doubt give effect to it unless, in the view of
the Registrar, there was good reason for not doing
so. This statement of the position is subject, however,
to a further material consideration in a case in
which, as in this case, the preferred co-counsel
is not qualified to act as counsel before the Tribunal.
Language qualification
- In the present case the assignment of co-counsel
requested by Ms Fauveau is
also most materially affected by the language qualification
requirement of Rule
44(B) which is incorporated into the legal aid scheme
by Rule 45(B). This is also
reflected in the Directive. It is open to the Registrar
under Rule 44(B) 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 Accused, but the Registrar may only
do so at the request of the Accused and where
the interests of justice so
demand. Necessarily, the interests of justice
must be viewed in light of the particular case.
- In this case, while Mr. Petrusic is not proficient
in either of the working languages of the Tribunal,
he is proficient in the Accused’s native language,
as also is the assigned lead counsel, Ms Fauveau.
Thus, this is not a case in which, as has at times
been the case, the assignment of a co-counsel who
speaks the native language of the Accused has the
desirable advantage of facilitating adequate communication
between the Accused and lead counsel. The Chamber
notes that Mr Petrusic has been
placed on the list of counsel maintained by the Registrar
pursuant to Article 14
(C) of the Directive. This is possible because Mr Petrusic
speaks “a language spoken
in the territory over which the Tribunal has jurisdiction”.
However, in order for counsel on that list to be assigned
as co-counsel in a particular case, the counsel must
speak the “native language” of the Accused as required
by Article 16(C) (ii
) of the Directive and Rule 44(B), however, under each
of those provisions of the Rules and the Directive,
this can only occur where the Registrar is persuaded
that it is in the interests of justice to do so. Unless
the Registrar is so persuaded and excercises his discretion
to waive the language qualification in this case,
Mr Petrusic is not qualified to appear before the Tribunal.
Discussion of merits
- In the present case the factors principally
relied in the appellant’s submissions
as justifying the conclusion that the assignment of
Mr Petrusic is in the interests
of justice are first, the “Counsel of Choice” contention
which, as discussed earlier, is founded on a mistaken
appreciation of the legal position as developed in
the decisions of this Tribunal. Even so, it remains
of relevance as indicated by the decisions, although,
as discussed later, in this case that relevance is
only potential because of the language qualification
issue. Secondly, it is submitted that because Mr Petrusic
has had the experience of representing General Krstic
on the trial of charges some of which were the same
or similar to those facing the Accused, he has a familiarity
with the geographic region and many of the relevant
facts and background circumstances. While this second
submission is factually correct, it does not appear
to the Chamber to be of significant weight, as these
are matters with which experienced counsel will readily
cope during routine preparation of a case. It has not
been shown that there will be any significant ongoing
advantage for the conduct of the trial, or that there
would be any significant saving of time by the defence
team, by virtue of Mr Petrusic’s earlier representation
of General Krstic.
- It is also submitted that Mr Petrusic’s ability
to speak the native language of the Accused would
facilitate communication with the defence team. In
this regard it is also submitted that this is a
relevant consideration that was not specifically
mentioned in the Registrar’s decision. While it
may be of some convenience for a co-counsel to
be able to speak the Accused’s language, it is not
apparent that this is a consideration of significant
force, given that the lead counsel Ms Fauveau
also speaks the native language of the Accused. Clearly
this would be of much greater significance if lead
counsel did not speak the Accused’s language.
In the Chamber’s view, however, the Registrar appears
to have been in error in one respect, which in
itself satisfies the jurisdictional requirement
identified earlier, in his consideration of the
relevance of this issue to the exercise of the discretion
to waive the language qualification. Given the
legislative history of Rules 44
and 45, and of the Directive, especially the significant
changes in July 2004, it appears correct to say,
as the Registrar noted, that a significant reason
for the continued presence of the exception is
to enable the Registrar to assign a co-counsel
who speaks the language of an Accused in a case
where the lead counsel does not. However, the Chamber
does not consider that there is justification to
be found in the Rules or the Directive, or their
history, for the further view that this is
the only circumstance in which the discretion
to waive the language qualification is justified.
That appears to be the view taken by the Registrar.
This appears to be too narrow an understanding of
the discretion. The submissions of counsel for the
Accused in this respect are well founded. It does not
necessarily follow, of course, that there are circumstances
in the present case which satisfy the interests of
justice exception so as to enable the Registrar to
waive the language qualification to allow the assignment
of Mr Petrusic. That is the issue the Chamber
will focus on as it considers the other issues relevant
to this review of the Registrar’s
decision.
- The significant countervailing consideration
to Mr Petrusic’s ability to speak
the Accused’s language remains that Mr Petrusic is
not proficient in either of the working languages
of the Tribunal. Hence, while he may speak to the Accused,
and while he may be able to follow aspects of the
proceedings by virtue of the interpretation into the
language of the Accused, Mr Petrusic is unable to follow
other significant aspects of the proceedings e.g.,
live transcripts in court, pleadings, motions, written
submissions etc., and will be dependent on lead counsel
in these respects. Indeed, where a co-counsel is not
able to perform the full range of the functions of
counsel because of lack of proficiency in one of the
working languages of the Tribunal, it is rather inevitable
that there may be unnecessary disruption or delay
to the trial in the event that lead counsel is not
able to continue (whether permanently or temporarily).
The Chamber is not persuaded that the interests of
justice, in so far as the language proficiency of
Mr. Petrusic is concerned, tell positively
in favour of the assignment of Mr Petrusic.
- Rather than seeing advantage to the interests
of justice in the earlier representation of General
Krstic, the Registrar, in the Decision, was persuaded
that it presented a risk that was reasonably high
of a conflict of interest. This led the Registrar
to the conclusion that the assignment of Mr. Petrusic
would in fact be contrary to those interests.
- Guidance is provided to counsel concerning
conflicts of interest in the Code of Professional
Conduct for Counsel Appearing before the International
Tribunal (“Code of Conduct”). Among other cases
of such conflict, the Code deals with a situation
where “the matter is the same or substantially related
to another matter in which counsel had formerly
represented another client (“former client”), and
the interests of the client are materially adverse
to the interests of the former client” (Article
14(D)(iii)). Pursuant to that provision, the counsel
concerned shall not represent the client with respect
to the matter.
- The Registrar’s concern arose in particular because
of the similarity of the charges against the Accused
and General Krstic and because they relate to the
same events. Further, the Accused is alleged to
have participated in the same joint criminal enterprise.
It was found in the Krstic case that there
was co-operation between the Main Staff, in which
the Accused held a senior position,13
and the Drina Corps, commanded by General Krstic.14
The identity of much of the factual basis to which
the Indictment against the Accused refers, and the
facts underlying the conviction of General Krstic,
are factors which, in the view of the Chamber, do
clearly give rise to a potential conflict of interest.
- Contrary to submissions to this Chamber, the
Registrar’s decision appears to
set out in reasonable detail the factual basis which
persuaded the Registrar of a clear potential for
a conflict of interest in this case. It is true,
as the defence submits that Operation Krivaja 95
referred to by the Registrar is not expressly referred
to in the present indictment. Given the nature of
the prosecution case, however, it is not apparent
that the Registrar’s reliance inter alia on
this has led the Registrar to have regard to an
irrelevant consideration. As it was said in the
Decision, the Registrar was persuaded that the nexus
between the Main Staff and the Drina Corps and by
the positions held by the present Accused and General
Krstic at the time relevant to the indictment, give
rise to a “real
possibility” of a conflict of interest. In the circumstances,
and having a regard also to matters discussed later
in this decision, the Chamber is not persuaded that
the Registrar, in reaching this conclusion, took into
account irrelevant material, or that the conclusion
he reached was one which no sensible person who had
properly applied his mind to the circumstances could
have reached. Hence, the Chamber is not persuaded
that in this respect the Registrar fell into a factual
error.
- There are matters, however, which have not
been expressly referred to in the Decision of the
Registrar, which appear to the Chamber to be relevant
to the question of the degree of risk of a conflict
arising. First, the case against General Krstic
in this Tribunal has been concluded. It may not be
tried again in respect of those same offences. This,
of course, in some respects lessens the prospect
of the interests of General Krstic being now adversely
affected by the present proceedings, especially
as there is little practical prospect of any further
indictment against General Krstic being dealt with
by this Tribunal. However, given the nature of the
factual basis of the charges for which General Krstic
was tried, it cannot be said that the indictment
against General Krstic has by any means exhausted
charges that might be brought against him in respect
of this episode. It must be borne in mind that there
are other national jurisdictions, in which prosecutions
are being pursued for war crimes and crimes against
humanity arising from this tragic period of history
in the Balkans. It cannot be said, therefore, that
General Krstic can no longer be at risk of prosecution.
- There is also a consent by General Krstic to
Mr. Petrusic acting for the Accused. The Registrar
did consider this, but was persuaded that if a conflict
of interest did arise, the potential effect on the
Accused’s defence, and the proceedings and
the administration of justice, was such that the consent
should not prevail.15
It is noted that it was held in the Prlic Appeals
Decision that consent of a former client to his counsel
for representation of an Accused is not conclusive
of there being no conflict of interest. 16
- In further support of this Motion for the Review
of the Registrar’s decision, the Accused provided to this Chamber a consent of
the present Accused to Mr Petrusic
being assigned. This consent was given in the knowledge
that Mr Petrusic acted
for General Krstic. Also provided was a declaration
of Mr Petrusic to the effect
that there is no information he had from General Krstic
which “did not come to light
” in the Krstic trial. These declarations were not
provided to the Registrar so they did not form part
of the material considered in his decision. Even so,
consent of the present Accused is of no relevance
to the present issue as the point of concern is whether,
by participating in the defence of the Accused, Mr Petrusic
will be led into conflict with his professional responsibilities
to his former client General Krstic. With regard to
the declaration of Mr Petrusic we would assume that
he would not be agreeable to being assigned as co-counsel
if he was aware of a conflict because of confidential
information he had from General Krstic that could be
relevant to the defence of the Accused. Such confidential
information is not, however, the only basis on which
a conflict of interest can be reasonably anticipated
in the present circumstances, even if it were fair
and reasonable to expect that Mr Petrusic
would be in a position to anticipate reliably all that
might arise in the pending trial and the possible
relevance to it of confidential information he gathered
from any source of defending General Krstic.
- The submissions of the Parties have sought
to anticipate some situations that might give rise
to actual conflict of interest in the pending trial.
It is apparent from these that there is a prospect
that General Krstic himself may be called as a Prosecution
witness, at least if there is a joinder of two other
accused with General Miletic as is to be sought
by the prosecution. There is also a prospect that
Mr Petrusic may be called as a witness to establish
the provenance of certain documents he tendered
in the trial of General Krstic and which are considered
relevant to the Prosecution case against General
Miletic. There are a number of uncertainties affecting
each of these prospects but, had they been known
to the Registrar, they would each properly have
counted as demonstrating the potential for a conflict
of interest and is increasing the prospect of a
conflict arising. There was also much advanced by
way of submission about the possibility of an agreement
with Prosecution leading to a plea of guilty by
General Miletic. The Prosecution observed that normally, in such a case, a condition required in such an agreement
is cooperation with the Prosecution including, where
appropriate, giving evidence in other cases. What
General Miletic might be able to say with respect
to General Krstic is, of course, presently unknown
to Mr Petrusic. The Chamber would also observe that
a submission was advanced in relation to these possible
scenarios that Mr Petrusic, if assigned
as co-counsel, need not be involved in the cross-examination
of General Krstic or in any plea agreement negotiations.
This submission appears to the Chamber to involve
too limited an understanding of the obligations
of counsel to an accused whom he or she represents
or has represented, whether as co-counsel or counsel.
The conduct of the defence cannot be compartmentalised,
as is suggested, to get around a conflict situation.
- In the Chamber’s view the most that can be said,
as a consequence of a consideration of the matters
that were before the Registrar but not expressly
considered in the Decision, and also, the matters
that have since been placed before this Trial Chamber, is that while there remains a clear potential for
a conflict of interest should Mr Petrusic be assigned
as co-counsel, the assessment by the Registrar that
the likelihood of such a conflict arising is reasonably
high would appear to overvalue that likelihood.
The potential consequences nevertheless remain significant,
should conflict actually arise.
- It is important to recall that it is only if
the Registrar is satisfied that it is in the interests
of justice to waive the language requirement that
it is possible, pursuant to the Rules and the Directive,
for the Registrar to assign Mr Petrusic
as co-counsel. In this case, even if the potential
for a conflict of interest to arise was over-valued
in the assessment of the Registrar, it appears to
the Chamber that nothing considered in the Registrar’s
decision, or that was placed before the Registrar,
or that is now submitted to this Chamber, demonstrates
any factor or combination of factors of persuasive
force for concluding that the assignment of Mr Petrusic
as co-counsel would further the interests of justice
in this particular case. Unless the Registrar,
or this Chamber on review, is persuaded that it
is in the interest of justice to waive the language
requirement, Mr Petrusic is not
qualified to be assigned as co-counsel.
- This Chamber is not persuaded by anything that
was before the Registrar, or by the additional matters
that have been raised before it, that the interests
of justice would be served by waiving the normal
language qualification in this case.
Disposition
- For these reasons the Trial Chamber dismisses
the Motion for Review of the Registrar’s Decision.