The Prosecutor v. Milan Martic - Case No. IT- 95 -11 -PT

"Decision on Appeal against Decision of the Registry"

2 August 2002
Trial Chamber I (Judges Liu [Presiding], El Mahdi and Orie)

Procedural Background

· In its Decision ("first Registry Decision") of 31 May 2002, the Deputy Registrar temporarily assigned Mr. Kastratovic ("Counsel of choice") to the accused Milan Martic ("the accused") until 13 June 2002, pending further clarification of a potential conflict of interest.

· In another Decision dated 14 June 2002 ("second Registry Decision"), the Deputy Registrar assigned Mr. Knoops ("assigned Counsel") as counsel for the accused for a period of 100 days, stating that "an assignment of Mr. Kastratovic to the accused could, under the circumstances, lead to adverse impacts on the rights of the accused and the suspect [Mr. Simatovic] Mr. Kastratovic previously represented" and that "while he was assigned to the accused, Mr. Kastratovic has not taken any further steps to clarify or neutralise the potential conflict of interest".

· On 26 June 2002 Mr. Kastratovic seized the Trial Chamber, submitting that the second Registry Decision was "legally unsustainable".

· In an Order issued on 3 July 2002, the Chamber considered itself properly seized of the Appeal and requested the accused, assigned Counsel, Counsel of choice and the Registry to provide "further information and clarification of their respective position on the alleged conflict of interest". It also ordered the Prosecution to submit "all relevant information on the factual background of the alleged conflict of interest".

The Decision

The Trial Chamber remitted the matter to the Registry and directed it to revisit the second Registry Decision and to issue a new Decision on Assignment of Counsel.1

The Reasoning

The Right to a counsel of the accused's own choosing

The Trial Chamber considered that Article 21(4)(b) of the Statute provides that the accused shall be entitled inter alia to "have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing" and that Article 21(4)(d) provides that the accused shall be entitled inter alia 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 any case where the interests of justice so require…".2

The Trial Chamber further referred to the jurisprudence of the International Tribunal3 and of the International Criminal Tribunal for Rwanda4 as indicating that "the right of the indigent accused to counsel of his own choosing may not be unlimited but that, in general, the choice of any accused regarding his Defence Counsel in proceedings before the Tribunals shall be respected". Furthermore it expressed the view that "the choice of all accused should be respected unless there exist well-founded reasons not to assign Counsel of choice".

It considered Rule 45(C) of the Rules of Procedure and Evidence5 pursuant to which the Registrar may assign a counsel whose name does not appear on the list in particular circumstances and upon request of a person lacking the means to remunerate counsel. It also considered Article 14(B) of the Directive on Assignment of Counsel6 pursuant to which the Registrar may assign counsel who does not speak either of the two working languages of the Tribunal but speaks the language of the accused.

Conflict of interest

The Registry claimed that, with regard to the assignment of choice to the accused, there may exist a conflict of interest pursuant to Article 9 of the Code of Conduct7 and that this conflict had not been resolved through valid waivers of the accused and the suspect pursuant to Article 9(5) of the Code of Conduct.

Sharing the view of Trial Chamber II as expressed in its Decision on Prosecution's Motion for review of the Registrar to assign Mr. Rodney Dixon as Co-Counsel to the Accused Kubura, dated 26 March 2002,8 the Trial Chamber declared that the Registry was authorised to consider and decide on the potential conflict of interest. It found, however, that the second Registry Decision did not provide any information about the nature of the said conflict, as the Decision did not explain the nature and scope of the "current circumstances" to which it referred and did not expand on the alleged "adverse impacts" on the rights of the accused.

As regards the uncontested claim of Mr. Kastratovic that Mr. Simatovic was his former client, the Trial Chamber expressed the view that a conflict of interest could exist only as provided in Article 9(3)(c)(iii) of Code of Conduct, namely that "the matter is the same or substantially related to another matter in which Counsel had formerly represented another client ("the former client"), and the interests of the Client are materially adverse to the interests of the former client, unless the former client consents after consultation".

The Trial Chamber considered Article 9(5) of the Code of Conduct which requires the full and informed consent of all potentially affected clients to remove the conflict of interest. It also considered Article 16(E) of the Directive on Assignment of Counsel,9 which "does not exclude the constellation that Counsel may be assigned to more than one suspect at a time". The Trial Chamber concluded that "the fact that the accused and the suspect are charged as co-accused in the same case does not necessarily create a conflict of interest".

In addition the Trial Chamber found that the Registry had not put forward information about any other obstacles which might prevent Counsel of choice from fulfilling all other obligations under the Code as set out in Article 9(5)(b)(ii). The Trial Chamber was not satisfied, on the face of the information submitted by the parties, that there were "well-founded reasons" that would prevent Counsel of Choice to be assigned to the accused.

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1. On 16 August 2002 the Registry decided to withdraw the assignment of Mr. Knoops as counsel and assigned Mr. Kastratovic as counsel to the accused (Decision D611-D610).
2.Emphasis added by the Trial Chamber "for the purpose of the Decision".
3. See The Prosecutor v. Simic et al. ("Bosanski Samac"), Case No. IT-95-9-PT, Trial Chamber III, Decision on the Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarevic, 25 March 1999 (summarised in Judicial Supplement No. 3).
4. See among other references The Prosecutor v. Kambanda, Case No. ICTR-97-23-A, Appeals Chamber, Judgement, 19 October 2000. See also The Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Appeals Chamber, Judgement, 1 June 2001.
5. Rule 45 (Assignment of Counsel)
(C) In particular circumstances, upon the request of a person lacking the means to remunerate counsel, the Registrar may assign counsel whose name does not appear on the list but who otherwise fulfils the requirements of Rule 44.
6. Article 14 (Pre-requisites for the assignment of counsel)
(B) In particular circumstances, a Judge or the Trial Chamber seized of the case may, upon the request of an indigent suspect or accused, authorise the Registrar to assign counsel who speaks the language of the suspect or the accused but does not speak either of the two working languages of the Tribunal.
7. Article 9 (Conflict of Interest)
(1) Counsel owes a duty of loyalty to his or her Client. Counsel must at all times act in the best interests of the Client and must put those interests before their own interests or those of any other person.
(2) In the course of representing a Client, Counsel must exercise all care to ensure that no conflict of interest arises.
(3) Without limiting the generality of sub-articles (1) and (2), Counsel must not represent a Client with respect to a matter if:

(a) such representation will be or is likely to be adversely affected by representation of another Client;
(b) representation of another Client will be or is likely to be adversely affected by such representation;
(c) the Counsel's professional judgement on behalf of the Client will be, or may reasonably be expected to be, adversely affected by:

(i) the Counsel's responsibilities to, or interests in, a third party; or
(ii) the Counsel's own financial, business, property or personal interests; or
(iii) the matter is the same or substantially related to another matter in which Counsel had formerly represented another client ("the former client"), and the interests of the Client are materially adverse to the interests of the former client, unless the former client consents after consultation.

(4) Counsel must not accept compensation for representing a Client from a source other than that Client or, if assigned by the Tribunal, from a source other than the Tribunal, unless:

(a) that Client consents after consultation; and
(b) there is no interference thereby with the Counsel's independence of professional judgement nor with the Client-Counsel relationship.

(a) promptly and fully inform each potentially affected Client of the nature and extent of the conflict; and
(b) either:

(i) take all steps necessary to remove the conflict; or
(ii) obtain the full and informed consent of all potentially affected Clients to continue the representation, so long as Counsel is able to fulfil all other obligations under this Code.

8. The Prosecutor v. Hadzihasanovic et al. ("Central Bosnia"), Case No. IT-01-47, Decision on Prosecution's Motion for review of the Registrar to assign Mr. Rodney Dixon as Co-Counsel to the Accused Kubura, 26 March 2002 (summarised in Judicial Supplement No. 31 bis).
9. Article 16 (Basic principles)
(E) No counsel shall be assigned to more than one suspect or accused at a time, unless an assignment to more than one suspect or accused would neither cause prejudice to the defence of either accused, nor a potential conflict of interest.