Case No. IT-02-54-T
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
7 December 2004
DECISION ON ASSIGNED COUNSEL’S MOTION FOR WITHDRAWAL
Office of the Prosecutor:
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Slobodan Milosevic
Court Assigned Counsel:
Mr. Steven Kay, QC
Ms. Gillian Higgins
Prof. Timothy McCormack
CONSIDERING that in the present circumstances, the Request raises issues that are specific to the context of the case and that consideration of the matters therein may be more appropriately addressed by the Trial Chamber in view of its Order of 2 September 2004.11
On 2 November 2004, the Trial Chamber issued a Scheduling Order, stating that the assigned counsel’s request to withdraw would be heard on 9 November 2004.12 On 8 November 2004, court assigned counsel filed before the Trial Chamber “Assigned Counsel’s Motion for Withdrawal with Annex A”. The Trial Chamber then heard substantial submissions on the matter from court assigned counsel, the Accused and the Prosecution over three days from 9 to 11 November 2004.
Suspension and Withdrawal of counsel
(A) In the interests of justice, the Registrar may:
(i) at the request of the accused, or his counsel, withdraw the assignment of counsel ;
(ii) at the request of lead counsel withdraw the assignment of co-counsel.
(F) Where a request for withdrawal, made pursuant to paragraph A, has been denied the person making the request may seek the President’s review of the decision of the Registrar within two weeks from the notification of the decision to him.
Declining, Terminating or Withdrawing Representation
(A) Counsel shall not represent a client if:
(i) representation will result in conduct which is criminal, fraudulent or a violation of the Statute, the Rules, this Code or any other applicable law;
(ii) counsel’s physical or mental condition materially impairs counsel’s ability to represent the client; or
(iii) counsel’s representation is terminated by the client or withdrawn by the Registrar.
(B) Counsel may terminate or request, if applicable subject to the provisions of the Directive, withdrawal of his representation of a client if such termination or withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(i) the client has used counsel’s services to perpetrate a crime or fraud, or persists in a course of action involving counsel’s services that counsel reasonably believes is criminal or fraudulent;
(ii) the client insists upon pursuing an objective that counsel considers repugnant or imprudent;
(iii) the client fails to substantially fulfil an obligation to counsel regarding counsel’s services and has been given reasonable warning that counsel will terminate or request withdrawal of his representation unless the obligation is fulfilled; or
(iv) other good cause for termination or withdrawal exists.
(C) Subject to leave from the Chamber, if representation by counsel is to be terminated or withdrawn, counsel shall not do so until a replacement counsel is engaged by the client or assigned by the Registrar, or the client has notified the Registrar in writing of his intention to conduct his own defence.
(D) Upon termination or withdrawal of representation, counsel shall take steps to the extent reasonably practicable to protect the client’s interests, such as giving sufficient notice to the client, surrendering papers and property to which the client or the Tribunal is entitled and refunding any advance payment of fee that has not been earned.
Counsel also rely upon a number of other provisions of the ICTY Code. In particular, Articles 8,14 10,15 11,16 1217 and 1418 of the ICTY Code are cited as requiring counsel to secure the instructions of the client, failing which counsel will be in breach of the ICTY Code.
(a) In the absence of instructions from, and communication with, the Accused (whom counsel also refer to as their client), they are unable: (i) to know or abide by the Accused’s “objective of representation”; (ii) to fulfil counsel’s duty to communicate with the Accused; (iii) to know and thereafter protect the best interests of the Accused ; and thus to meet significant requirements of the ICTY Code.19 They had anticipated that there was a chance of the Accused cooperating with them, but the Trial Chamber’s Order on Modalities, requiring counsel to lead witnesses first and providing for the Accused to apply to ask questions thereafter, ruined any prospect of a cooperative relationship emerging;20
(b) In light of the Accused’s expressed desire to represent himself, there is a conflict of interest between the Accused’s instructions as made known by him and the order assigning counsel; acting against the expressed wishes of the Accused, and without instructions from him, would be disloyal to their client and detrimental to the interests of justice, in breach of Article 14 of the ICTY Code21;
(c) The Order of the Trial Chamber to assign Counsel to an unwilling and uncooperative Accused imposes an external pressure upon court assigned counsel that compromises their professional integrity, and is contrary to Article 10 of the ICTY Code, as well as provisions of the Code of Conduct of the Bar of England and Wales. What has occurred since the time of their assignment has led to a complete and irrevocable breakdown in the relationship between them and the Accused.22 Their professional conduct has been impugned. Their professionalism and their conduct of the defence case have been criticised by the Accused,23 who has also made a complaint to the Dutch Bar against lead counsel; and
(d) Should their application for leave to withdraw be refused, counsel may in any event unilaterally terminate their assignment as defence counsel on the basis that good cause exists for them to do so.
For the aforementioned reasons, in particular (i) the Accused’s refusal to communicate with Assigned Counsel, (ii) the inability of Assigned Counsel to advise the Accused in relation to his case and provide him with effective representation, (iii) the inability of Assigned Counsel to know and thereafter protect the Accused’s best interests and (iv) the criticism of the professionalism of Assigned Counsel by the Accused, it is submitted that there is “good cause” for Assigned Counsel to be allowed to withdraw. Assigned Counsel hereby request withdrawal from their current position under the provisions of Article 19 of the Directive on Assignment of Defence Counsel.24
The only inherent power that a Trial Chamber has is to ensure that the trial of an accused is fair; it cannot appropriate for itself a power which is conferred elsewhere. As such, the only option open to a Trial Chamber, where the Registrar has refused the assignment of new Counsel, and an accused appeals to it, is to stay the trial until the President has reviewed the decision of the Registrar. The Appeals Chamber considers that it is only by adopting this approach that the Trial Chamber properly respects the power specifically conferred upon the Registrar and the President by the Directive to determine whether an accused’s request for withdrawal of Counsel should be granted in the interests of justice.37
The Trial Chamber understands the Appeals Chamber to be saying that, unless an application normally falling within the competence of the Registrar goes to the fairness of the trial, a Trial Chamber should not determine the matter.38
The Chamber has considered the Statute, the Rules, and the jurisprudence of the Tribunal and has concluded that it does have jurisdiction to hear the application.41
The Trial Chamber is…entirely satisfied that, on the proper interpretation of Articles 20 and 21, it is competent, in appropriate circumstances, to insist upon an accused being represented by counsel in spite of his wish to represent himself. If the Accused refuses to appoint his own counsel, then it is open to the Trial Chamber to assign counsel to conduct the defence case.43
The Appeals Chamber held that determination to be correct.44 Since the initial decision that counsel should be assigned was made to ensure the fairness of the trial,45 it follows that an application which effectively and fundamentally challenges that decision is subject to the jurisdiction of the Trial Chamber.
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 Appearing Before the International Tribunal and the codes of practice and ethics governing their profession and, if applicable, the Directive on the Assignment of Defence Counsel adopted by the Registrar and approved by the permanent Judges.
The relevant provisions of the Statute are Articles 20 and 21, which require a Trial Chamber to ensure that the proceedings are fair and expeditious.
The Appeals Chamber rejects the argument of the Appellant that his “subjective” views about how his trial should proceed may override the professional obligation of Counsel to act in the best interests of the Appellant. Counsel has an obligation to consult with the Appellant but he is not bound by the Appellant’s views as to what are the best means to achieve the objects of the Appellant’s defence.58
This position is consistent with the terms of Article 8 of the ICTY Code. When counsel is assigned and acts in accordance with a court order, the obligations inherent in the normal counsel-client relationship must be modified to the extent necessary to give effect to the order appointing counsel. In this regard, the Trial Chamber notes the submission of the Prosecution that in the circumstances of this case “ there was never the relationship of client”.59
C. Termination of assignment
(Submission set out in paragraph 5 (d) above)
On remand, the Trial Chamber should craft a working regime that minimizes the practical impact of the formal assignment of counsel, except to the extent required by the interests of justice. At a minimum, this regime must be rooted in the default presumption that, when he is physically capable of doing so, Milosevic will take the lead in presenting his case – choosing which witnesses to present, questioning those witnesses before Assigned Counsel has an opportunity to do so, arguing any proper motions he desires to present to the court, giving a closing statement when the defense rests, and making the basic strategic decisions about the presentation of his defense …The Appeals Chamber can hardly anticipate, however, the myriad health-related difficulties that may arise in the future, or use this occasion to calibrate an appropriate set of responses to every possible eventuality. It is therefore left to the wise discretion of the Trial Chamber to steer a careful course between allowing Milosevic to exercise his fundamental right of self-representation and safeguarding the Tribunal’s basic interest in a reasonably expeditious resolution of the cases before it.
The Appeals Chamber stresses the following point: in practice, if all goes well, the trial should continue much as it did when Milosevic was healthy…If Milosevic’s health problems resurface with sufficient gravity, however, the presence of Assigned Counsel will enable the trial to continue even if Milosevic is temporarily unable to participate. The precise point at which that reshuffling of trial roles should occur will be up to the Trial Chamber.74
Done in both English and French, the English text being authoritative.
Dated this seventh day of December 2004
At The Hague
[Seal of the Tribunal]
(a) represent the Accused by preparing and examining those witnesses court assigned counsel deem it appropriate to call;
(b) make all submissions on fact and law that they deem it appropriate to make;
(c) seek from the Trial Chamber such orders as they consider necessary to enable them to present the Accused’s case properly, including the issuance of subpoenas;
(d) discuss with the Accused the conduct of the case, endeavour to obtain his instructions thereon and take account of views expressed by the Accused, while retaining the right to determine what course to follow; and
(e) act throughout in the best interests of the Accused;
(2) The Accused may, with the leave of the Trial Chamber, continue
to participate actively in the conduct of his case, including, where appropriate,
examining witnesses, following examination by court assigned counsel;
(3) The Accused has the right, at any time, to make a reasonable request to the Trial Chamber to consider allowing him to appoint counsel; and
(4) Court assigned counsel is authorised to seek from the Trial Chamber such further orders as they deem necessary to enable them to conduct the case for the Accused .
5. For the particular approach of the Appeals Chamber to the modalities, see paragraph 31 of this Decision.
6. For a description of the witnesses and dates of testimony, see “Assigned Counsel’s Motion for Withdrawal with Annex A”, 8 November 2004, paras. 7-13.
7. Ibid, para. 14; see also, hearing of 9 November 2004, T. 33198.
8. See, for example, hearing of 15 September 2004.
9. See transcript of the appeals hearing, 21 October 2004, T. 26, where Mr. Kay stated: “The high number of refusals of witnesses to cooperate, the antagonism of those witnesses towards me, their disapproval of me, the accusation that I’m really prosecuting him rather than defending him, all those issues are completely unsatisfactory for a counsel to stand here and say he is defending the accused”.
10. “Re: The Prosecutor v. Slobodan Milosevic IT-02-54-T – Withdrawal of Assigned Counsel”, 27 October 2004; Directive on Assignment of Defence Counsel, IT/73/Rev. 10, 28 July 2004 (“Directive”).
11. “Referral of Request to Withdraw ”, Deputy Registrar, 27 October 2004.
12. “Scheduling Order for Hearings on 9 to 11 November 2004,” 2 November 2004.
13. “Code of Professional Conduct for Counsel Appearing Before the International Tribunal”, IT/125/Rev.1, 12 July 2002 (“ICTY Code”).
14. (A) Counsel shall advise and represent a client until counsel’s representation is terminated by the client or withdrawn by the Registrar.
(B)When representing a client, counsel shall:
(i) abide by the client’s decisions concerning the objectives of representation;
(ii) consult with the client about the means by which those objectives are to be pursued , but is not bound by the client’s decision; and
(iii) seek or accept only those instructions which emanate from the client and which are not given as the result of an inducement from any person, organisation or State.
15. In the course of providing representation to a client, counsel shall:
(i) act with competence, skill, care, honesty and loyalty;
(ii) exercise independent professional judgement and render open and honest advice;
(iii) never be influenced in the matter of his representation;
(iv) preserve their own integrity and that of the legal profession as a whole;
(v) never permit their independence, integrity and standards to be compromised by external pressures.
16. Counsel shall represent a client diligently and promptly in order to protect the client’s best interests. Unless the representation is terminated or withdrawn, counsel shall carry through to conclusion all matters undertaken for a client within the scope of his legal representation .
17. Counsel shall keep a client informed about the status of a matter before the Tribunal in which the client is an interested party and must promptly comply with all reasonable requests for information.
18. “(A) Counsel owes a duty of loyalty to a client. Counsel also has a duty to the Tribunal to act with independence in the interests of justice and shall put those interests before his own interests or those of any other person, organisation or State; (B) Counsel shall exercise all care to ensure that no conflict of interest arises.”
19. “Assigned Counsel’s Motion for Withdrawal with Annex A”, 8 November 2004, para. 31.
20. “Assigned Counsel’s Motion for Withdrawal with Annex A”, 8 November 2004, para. 34; see also, hearing of 10 November 2004, for example, pp. 33242-244.
21. Ibid, paras. 34, 37-38.
22. See, for example, hearing of 9 November 2004, T. 33199.
23. Ibid, paras. 7-13, 19, 21. Counsel put their point during the hearing on this matter as follows: “The problem that came about, in my view, was the modalities and the extreme form. That is what caused a breakdown in relations, and we feel caused us eventually to be at the stage where we are in conflict with the client, as assigned counsel, and why we have had to make the application to withdraw. This arises from the conduct he has engaged in , which has been to criticise our professionalism, to play the trick with the witness Kanelli, to encourage a report to the Dutch Bar against our conduct of his case. We have had to, in our own position, continue to fight to his -- for his rights to represent himself, and in doing so in the Appeals Chamber have had to say this is his case, we don't know it. This is his Defence, this is something that only he can present, and refer, in fact, to once, as I cite in our text, once what was a cordial relationship has deteriorated and that we are unable to function with him.”
24. Ibid, para. 56.
25. Hearing of 10 November 2004, T. 33281.
26. Hearing of 10 November 2004, T. 33229.
27. Ibid, T. 33283.
28. Ibid, T. 33290.
29. Ibid, T. 33286.
30. Ibid, T. 33291-33292.
31. Ibid, T. 33293-33295.
32. Ibid, T. 33304.
33. Ibid, T. 33301. The relevant jurisprudence will be discussed below.
34. Prosecutor v. Delalic et al , “Order on Esad Landzo’s Motion for Expedited Consideration”, Case No. IT-96-21 -A, 15 September 1999, cited by the Appeals Chamber in Prosecutor v. Blagojevi c, “Public and Redacted Reason for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team”, Case No. IT-02-60-AR73.4, 7 November 2004.
35. Prosecutor v. Blagojevic, “Public and Redacted Reason for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team”, Case No. IT-02-60-AR73.4, 7 November 2003, para. 6.
36. Ibid, para. 7.
38. The Appeals Chamber nevertheless decided to entertain the matter on appeal from the Trial Chamber’s decision.: “Without prejudice to the restriction indicated in paragraph 7 and as the Trial Chamber has considered the matter on the basis it was competent to review the Registrar’s decision the Appeals Chamber in the circumstances of this case will consider all the grounds of appeal put forward by the appeal”. Ibid, para. 8.
39. Hearing of 9 November 2004, T. 33192.
40. “Decision”, 3 September 2004.
41. Hearing of 9 November 2004, T. 33192.
42. See, for example, hearing of 10 November 2004, T. 33250.
43. Assignment Decision, para. 34.
44. “Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel”, Case No. IT-02-54-AR73.7, 1 November 2004, para. 15.
45. See “Reasons for Decision on Assignment of Defence Counsel”, 22 September 2004 (“Assignment Decision”),para. 34.
46. See, Preamble to the Directive: “CONSIDERING the Statute of the Tribunal as adopted by the Security Council under resolution 827 (1993) of 25 May 1993, as subsequently amended, and in particular Articles 18 and 21 thereof”; and the ICTY Code: “Considering the Statute of the Tribunal adopted by Security Council under Resolution 827 of 25 May 1993, as subsequently amended, and in particular Article 21 thereof”.
47. Article 51 (4) of the ICC Statute provides that “the Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute”, and in Article 51 (5) that “in the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail”.
48. See Annex A of “Assigned Counsel’s Motion for Withdrawal With Annex A”, 8 November 2004, in which reference is made to Code of Conduct of the Bar of England and Wales; the Dutch Code of Conduct of Advocates (1992); the Code of Conduct for Lawyers in the European Union; the Draft Code of Conduct for Counsel before the ICC; Union Internationale des Avocats: International Charter of Defence Rights, Statement of Aims; Recommendation 21 of the Council of Europe Committee of Ministers to member states on the freedom of exercise of the profession of lawyer (adopted by the Committee of Ministers on 25 October 2000 at the 727th Meeting of the Ministers’ Deputies);Basic Principles on the Role of Lawyers , Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990; the Draft Principles on the Independence of the Legal Profession (“NOTO PRINCIPLES”; the Draft Universal Declaration on The Independence of Justice (“SINGHVI DECLARATION”). At the hearing on10 November 2004, reference was also made by counsel to the International Bar Association Code of Ethics (1988 edition).
49. See Annex A of “Assigned Counsel’s Motion for Withdrawal with Annex A”, 8 November 2004, Registry page 39428.
50. Article 2 refers to certain fundamental principles in Part III of the Code, and the Trial Chamber notes that none of the provisions of the ICTY Code are inconsistent with any of them: See Annex A of “Assigned Counsel’s Motion for Withdrawal with Annex A”, 8 November 2004, Registry page 39425 .
51. See, “Assigned Counsel’s Motion for Withdrawal with Annex A”, 8 November 2004, para. 29.
52. The practice of interpreting the Statute and the Rules as a treaty should be equally applicable to the ICTY Code and Directive as instruments made under the Statute. In that context, it is a general rule of treaty interpretation that in interpreting a treaty the context includes any relevant rule of international law. Article 31 (3) (c) of the Vienna Convention on the Law of Treaties provides: “There shall be taken into account, together with the context:…(c) any relevant rules of international law applicable in the relations between the parties.”
53. “Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel”, Case No. IT-02-54-AR73.7, 1 November 2004, para. 15.
54. Prosecutor v. Blagojevic, “Public and Redacted Reason for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team”, Case No. IT-02-60-AR73.4, 7 November 2003, para. 51.
56. Ibid, para. 54.
57. “Assigned Counsel’s Motion for Withdrawal with Annex A”, 8 November 2004, para. 35.
58. Prosecutor v. Blagojevic, “Public and Redacted Reason for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team”, Case No. IT-02-60-AR73.4, 7 November 2003, para. 27. (footnotes omitted)
59. Hearing of 10 November 2004, T. 33286.
60. Youth Justice and Criminal Evidence Act (England) 1999, secs. 34-35. Protected witnesses in the Act include complainants , witnesses to the crime and children.
61. Ibid, sec. 36.
62. Ibid, sec. 38.
63. See, “Reasons for Decision on Assignment of Defence Counsel”, 22 Sept. 2004 (“Assignment Decision”), para. 46.
65. Criminal Procedure (Scotland) Act 1995, sec. 288C(1).
66. Criminal Procedure (Scotland) Act 1995, sec. 288D(4). “Subject to subsection (3) above, it is the duty of a solicitor so appointed – (a) to ascertain and act upon the instructions of the accused; and (b) where the accused gives no instructions or inadequate or perverse instructions , to act in the best interests of the accused.” An executive pre-legislative paper explaining the provisions stated that it “would intend that the court-appointed lawyer should try to obtain instructions from the accused, with a view possibly to conducting the whole of the defence case, if the accused could be persuaded to agree. But clearly any responsibility the lawyer has to the accused must be severely limited in cases where the accused has not co-operated with the lawyer or has even tried to obstruct or mislead him”, thus clearly anticipating counsel acting in circumstances not dissimilar to this case: Executive, “REDRESSING THE BALANCE: Cross-Examination in Rape and Sexual Offence Trials”, 1991, para. 68.
67. See, hearing of 11 November 2004 , T. 33341-33344.
68. See, hearing of 9 November 2004 , T. 33207-33210.
70. See, hearing of 11 November 2004, T. 33337-33346.
71. Ibid, T. 33339-33340.
72. The reference at the end of that provision to an accused notifying the Registrar in writing of his intention to represent himself is not of relevance to the circumstances of this case.
73. See, hearing of 11 November 2004, T. 33346.
74. “Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel”, Case No. IT-02-54-AR73.7, 1 November 2004, paras. 19-20.
75. See, “Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel”, Case No. IT-02-54-AR73.7, 1 November 2004, para. 7.