THE PRESIDENT OF THE TRIBUNAL
Judge Theodor Meron, President
Mr Hans Holthuis
5 November 2003
DECISION ON APPEAL AGAINST DISCIPLINARY PANEL DECISON
- Mr Slavisa Prodanovic has filed an appeal against the decision of the Disciplinary
Panel suspending him from practice at the Tribunal in accordance with Article 45
(C) of the Code of Conduct.1 Mr Prodanovic argues
that the Disciplinary Panel erred in holding that the Code of Professional
Conduct of 2002 was applicable to his case. He also argues that the time period
to bring disciplinary proceedings against him had expired.
- The Disciplinary Panel was established under the amended Code of Professional
Conduct of 2002 (“2002 Code”). At the time when the misconduct took place
the Code of Professional Conduct of 1997 applied (“1997 Code”). The Disciplinary
Panel found that the 2002 Code could be applied to Mr Prodanovic on the basis
of the 1997 Code . Mr Prodanovic argues that this finding is erroneous. He
says that the 1997 Code does not make explicit reference to enforcement and
disciplinary procedures by a Disciplinary Panel and as such it cannot be the
basis for the application of the 2002 Code.2 He
says that the panel erred in finding that Article 22 of the 1997 Code, which
provides that Counsel must abide by and submit to any enforcement and disciplinary
procedures as may be established by the Tribunal in accordance with the Rules,
permits the application of the 2002 Code.3 He
claims that Article 1(4) of the 1997 Code4, considered
in relation to Article 22 of the same Code5, indicates
that proceedings in accordance with that Code can only be applied in accordance
with the Tribunal’s Rules of Procedure and Evidence (“Rules”).6
Mr Prodanovic claims that under the Tribunal’s Rules at the time his misconduct
occurred the only body authorised to conduct a proceeding against him was
the Attorney Bar Association with competence for the territory of Foca/Srbinje
pursuant to Rule 46(B).7
- Mr Prodanovic made similar objections before the Disciplinary Panel and
his arguments were rejected. That decision was correct. As the Disciplinary
Panel noted, all defence counsel appearing before the Tribunal are bound by
the Code of Professional Conduct of Counsel as provided in Rule 44.8
Article 22 of the 1997 Code explicitly stated: “Counsel must abide and voluntarily
submit to any enforcement and disciplinary procedures as may be established
by the Tribunal in accordance with the Rules”.9
As such, the 1997 Code explicitly foresaw the possibility of an enforcement
and disciplinary procedure being established in the future. The fact that
that mechanism was not established until the amended 2002 Code does not preclude
its application to misconduct that took place prior to its establishment.
- Mr Prodanovic also objects to the Disciplinary Panel conclusion that the
commencement of disciplinary proceedings against him filed on 18 August 2003
was timely because his misconduct only came to the attention of the complainant
on 30 August 2002. Article 41(3) of the 2002 Code provides: “The complaint
shall be submitted within twelve months after the alleged misconduct is brought
to the attention of the complainant or within twelve months after the complainant
should have reasonably known about the existence or occurrence of the alleged
misconduct”. Mr Prodanovic argued that the Registrar should have been aware
of his alleged misconduct on 27 July 2002 when the OLAD Financial Investigator
had information from Mr Goran Jovanovic that he had not performed any investigative
works in the case of Prosecutor v Kunarac et al. The Disciplinary Panel,
however, found that this fact was insufficient to establish a reasonable knowledge
on the part of the complainant of the misconduct of Mr Prodanovic and that
“[a] process of determining the reasonableness of an allegation cannot be
said to be completed without undergoing a procedure of further verification
upon becoming aware of the said allegation”.10
This finding was reasonable. The information obtained by the OLAD Financial
Investigator was not of itself sufficient to establish reasonable knowledge
on the part of the complainant. It was, however, sufficient to put the complainant
on notice that additional investigation was needed. This additional investigation
resulted in a statement of the Legal Adviser of 30 August 2002. The panel
was reasonable to conclude that this additional statement was sufficient to
establish reasonable knowledge on the part of the complainant and that for
the purposes of Article 41(3) time began to run from that date.11
Accordingly, the complaint against Mr Prodanovic was timely filed because
it was filed on 18 August 2003, less than twelve months after 30 August 2002.
- Mr Prodanovic’s last argument, that the time limit for the completion of
disciplinary proceedings against him had also expired, is likewise rejected.12
The 2002 Code places no time limit upon the completion of disciplinary proceedings
against Counsel, and there is no merit in the arguments advanced by Mr Prodanovic
to the contrary. In any event, as reasonable knowledge of the misconduct by
Mr Prodanovic did not come to the attention of the Registrar until 30 August
2002, the completion of that procedure in the issuing of the decision of the
Disciplinary Panel on 6 October 2003 did not constitute an unreasonable or
prejudical delay to Mr Prodanovic.
Done in English and French, the English text being authoritative.
Dated this 5th day of November 2003,
At The Hague,
Judge Theodor Meron
[Seal of the Tribunal]
1 - Decision by the Disciplinary Panel on
Case DP-2-3, 6 October 2003 (“Decision”).
2 - Appeal of Mr Slavsia Prodanovic to Disclipinary Decision
against him for Professional Misconduct, 16 Oct 2003 (“Appeal Brief”), paras 9-11.
3 - Appeal Brief, para 13.
4 - Article 1(4) of the 1997 Code states: While Counsel is
bound by this Code, it is not, and should not be read as if it were, a complete
or detailed code of conduct for counsel. Other standards and requirements may
be imposed on the conduct of Counsel by virtue of the Tribunal’s inherent jurisdiction
and the code of conduct of any national body to which counsel belongs.
5 - Article 22 provides that: Counsel must abide by and voluntarily
submit to any enforcement and disciplinary procedures as may be established by
the Tribunal in accordance with the Rules.
6 - Appeal Brief, paras 18-19.
7 - Ibid, paras 23-24.
8 - Decision, para 10.
9 - Decision, paras 11-12.
10 - Decision, para 22.
11 - Decision, paras 20-23.
12 - Appeal Brief, para 31.