"Order Inviting Designation of Amicus Curiĉ"

31 August 2001
Trial Chamber III (Judges May [Presiding], Robinson and Fassi Fihri)

Procedural Background

• On 2 July 2001, the accused Slobodan Milosevic informed the Registrar in writing that he did not intend to engage Counsel to represent him.
  

The Order

The Trial Chamber invited "the Registrar to designate Counsel to appear before it as amicus curiĉ", in order to assist it by:

(1) making any submissions properly open to the accused by way of preliminary or other pre-trial Motion1;

(2) making any submissions or objections to evidence properly open to the accused during the trial proceedings and cross-examining witnesses as appropriate;

(3) drawing to the attention of the Trial Chamber any exculpatory or mitigating evidence; and

(4) acting in any other way which designated Counsel considers appropriate in order to secure a fair trial.

The Trial Chamber extended the time for designated Counsel to file preliminary Motions pursuant to Rule 72 of the Rules2 until 30 days after designation by the Registrar. It also directed the Registrar to provide designated Counsel with all such material as was or had been provided to the accused.

The Reasoning

The Trial Chamber considered the fact that the accused was entitled to defend himself in person3 and that he had not appointed Defence Counsel to act on his behalf. It recalled that Article 20(1) of the Statute4 "requires the Trial Chamber to ensure that a trial is fair and that it is conducted with full respect for the rights of the accused"5.

Trial Chamber III considered "it desirable and in the interests of securing a fair trial that an amicus curiĉ be appointed as permitted by the Rules of Procedure and Evidence, not to represent the accused but to assist in the proper determination of the case, and pursuant to Rule 74"6.

Latest Development

On 6 September 2001, the Registrar appointed Mr. Steven Kay QC, Mr. G. Branislav Tapuskovic and Professor Mischa Wladimiroff to act as amici curiĉ.

The Registrar pointed out that the three amici curiĉ will be subject to the provisions of the Code of Professional Conduct for Defence Counsel Appearing before the International Tribunal dated 12 June 19977.

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1. See Information Concerning the Submission of Amicus Curiĉ Briefs, 27 March 1997, IT/122.
2. "(A) Preliminary motions, being motions which

(i) challenge jurisdiction;
(ii) allege defects in the form of the indictment;
(iii) seek the severance of counts joined in one indictment under Rule 49 or seek separate trials under Rule 82 (B); or
(iv) raise objections based on the refusal of a request for assignment of counsel made under Rule 45 (C)

shall be in writing and be brought not later than thirty days after disclosure by the Prosecutor to the defence of all material and statements referred to in Rule 66(A)(i) and shall be disposed of not later than sixty days after they were filed and before the commencement of the opening statements provided for in Rule 84.

(B) Decisions on preliminary motions are without interlocutory appeal save

(i) in the case of motions challenging jurisdiction, where an appeal by either party lies as of right;
(ii) in other cases where leave to appeal is, upon good cause being shown, granted by a bench of three Judges of the Appeals Chamber.

(C) Appeals under paragraph (B)(i) shall be filed within fifteen days and applications for leave to appeal under paragraph (B)(ii) shall be filed within seven days of filing of the impugned decision. Where such decision is rendered orally, this time-limit shall run from the date of the oral decision, unless

(i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or
(ii) the Trial Chamber has indicated that a written decision will follow, in which case, the time-limit shall run from filing of the written decision.

(D) For the purpose of paragraphs (A)(i) and (B)(i), a motion challenging jurisdiction refers exclusively to a motion which challenges an indictment on the ground that it does not relate to:

(i) any of the persons indicated in Articles 1, 6, 7 and 9 of the Statute;
(ii) the territories indicated in Articles 1, 8 and 9 of the Statute;
(iii) the period indicated in Articles 1, 8 and 9 of the Statute;
(iv) any of the violations indicated in Articles 2, 3, 4, 5 and 7 of the Statute.

(E) An appeal brought under paragraph (B)(i) may not be proceeded with if a bench of three Judges, assigned by the President, decides that the appeal is not capable of satisfying the requirement of paragraph (D), in which case the appeal shall be dismissed."
3. Article 21(4)(d) of the Statute provides that "[i]n the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: […] to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing." (Emphasis added)
See The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Appeals Chamber, Judgement, 1 June 2001, paras. 58-59, 65-66 and 391-399.
4. "The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses."
5. The Prosecutor v. Jean-Bosco Barayagwiza, Case No. ICTR-97-19-T, Trial Chamber I, Decision on Defence Counsel Motion to Withdraw, 2 November 2000, in which the Trial Chamber drew a distinction between assignment and appointment of Counsel. It considered that "Counsel is assigned, not appointed" and expressed the view "that he represents the interest of the Tribunal to ensure that the Accused receives a fair trial." (Para. 21) See also Concurring and Separate Opinion of Judge Gunawardana in which the Judge considered that since Mr. Barayagwiza had instructed "his assigned Counsel not to represent him in Court, it would be difficult to force the Counsel to appear for Mr. Barayagwiza, as assigned Counsel. However, this may not prevent the same or different Counsel to appear for the Defence, even against the wishes of Mr. Barayagwiza, as the standby counsel, appointed by the Court, in the interests of justice. In such case, Counsel would act, not only to protect the interests of the accused, but also the due administration of justice", on the basis of Article 20(4)(d) of the ICTR Statute, identical to Article 21(4)(d) of the ICTY Statute, and of the inherent power of the Court to control its own proceedings. Judge Gunawardana therefore expressed the view that the two Defence Counsel "should be appointed as standby counsel for the Defence."
See also the oral Decision of 6 February 2001, in which Trial Chamber I directed the Registrar to withdraw the assignment of the two Defence counsel and to appoint immediately another counsel to provide legal assistance for Barayagwiza (transcripts, page 3, line 4-page 12, line 19).
See also The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Trial Chamber II, Decision on Ntahobali’s Motion for Withdrawal of Counsel, 22 June 2001, in which "by virtue of its inherent powers to control its own proceedings", the Trial Chamber decided proprio motu that it was "in the interest of justice that a Duty Counsel be immediately appointed so as to ensure that the Accused [wa]s assisted in the conduct of his defence pursuant to [ICTR] Rule 44 bis (D)" (para. 20). Rule 44 bis (D) of the ICTR Rules provides that "[i]f an accused, or suspect transferred under Rule 40 bis, is unrepresented at any time after being transferred to the Tribunal, the Registrar shall as soon as practicable summon duty counsel to represent the accused or suspect until counsel is engaged by the accused or suspect, or assigned under Rule 45." The Trial Chamber stated that "Counsel is independent of the Accused" and as a matter of principle, found "that an accused is mistaken when saying that counsel must consult with him, whereas there are matters of professional judgement for which Counsel alone is liable." The Trial Chamber further stated that "[w]hile Counsel should take full instructions about facts surrounding the case, this does not imply that Counsel have to consult with the accused whenever any step in his defence is taken by the Counsel." Nevertheless, it added that "Counsel have to keep the Accused informed of the steps taken to protect his interests and provide the Accused with a reasoned explanation as to why they took such steps." (Para. 23) Pending the replacement of Counsel and in the interest of the proper administration of justice, the Trial Chamber instructed "the Registry to appoint a Duty Counsel with immediate effect pursuant to Rule 44 bis of the Rules to assist the Accused in the conduct of his defence".
6. "A Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to appear before it and make submissions on any issue specified by the Chamber."
7. IT/125.