The Prosecutor v. Vidoje Blagojevic - Case No. IT-02-60-PT

"Decision on Oral Motion to Replace Co-Counsel"

9 December 2002
Trial Chamber II (Judges Schomburg [Presiding], Mumba and Agius)

Procedural Background

· In accordance with the Directive on Assignment of Defence Counsel (hereinafter “the Directive”), the Registrar appointed Michael Karnavas as lead Counsel for the Accused on 31 August 2001, and Suzana Tomanovic as Co-counsel on 25 September 2002 .

· At the Status Conference on 27 November 2002, Vidoje Blagojevic (hereinafter “the Accused”) stated that he was not satisfied with his appointed Counsel. That same day during a closed Motion Hearing (hereinafter “Motion Hearing”), the Accused further submitted that his complaint was limited to the assignment of his Co-counsel who, he believes, “ha[s] to be elected and assigned in accordance with the request and the interests of the client, which was not done in [this] case”.¹

The Decision

The Trial Chamber dismissed the Motion.

The Reasoning

The power of a Trial Chamber to review a Registrar’s Decision on assignment of Counsel

The Trial Chamber stated that “the basis for action in this matter by a Trial Chamber rests with its inherent power and duty to guarantee a fair trial and the proper administration of justice, as set forth in Articles 20² and 21³ of the Statute of the Tribunal”.⁴

It ruled that “difficulties relating to the defence of an Accused will affect the conduct of a case over which a Trial Chamber has not only the power but also the duty to regulate in accordance with the statutory requirements for a fair and expeditious trial”. The Trial Chamber found that “it is vested with the power to review a decision of this type in the interest of justice”. It recognised that the Registrar has the primary responsibility in the matter and considered that “if the Registrar was not properly informed of necessary facts, he would be entitled to reconsider his previous decision on the basis of new information hitherto unavailable to him”.⁵

The dismissal of the Motion

The Trial Chamber noted that, pursuant to Article 16(c) of the Directive on Assignment of Defence Counsel,⁶ it is for the Counsel to request Co-counsel. The Trial Chamber noted that it had not observed distrust between them and that the Accused was only stating that the assignment of the Co-counsel was not carried out pursuant to his suggestions and with his consent.

The Trial Chamber could not find that the Co-counsel was incompetent or acting in a way contrary to the best interests of her client.⁷ It found that “the alleged problems were based on a desire of the Accused to have an unknown third person assigned as Co-counsel, and not due to any misconduct, incompetence or any conflict of interest on the part of the Co-counsel”. Furthermore it did not identify any ground which “would amount to an insufficient atmosphere of trust between the Accused and the Defence team or which would otherwise show that co-operation between the Accused and his team [was] no longer possible”.

The Trial Chamber considered that no prejudice could be suffered by the Accused by retaining Ms. Tomanovic as Co-counsel and that to replace Co-counsel at this point in the proceedings would cause prejudice to the Accused by causing inter alia a delay in the proceedings that would infringe on his right to an expeditious trial.

It found no good cause to “intervene” in the Registrar’s Decision and dismissed the Motion.

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1. Motion Hearing, 27 November 2002, T.107 (closed session).
2. Article 20 (Commencement and conduct of trial proceedings)
1. 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.
2. A person against whom an indictment has been confirmed shall, pursuant to an order or an arrest warrant of the International Tribunal, be taken into custody, immediately informed of the charges against him and transferred to the International Tribunal.
3. The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea. The Trial Chamber shall then set the date for trial.
4. The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.
3. Article 21 (Rights of the accused)
1. All persons shall be equal before the International Tribunal.
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.
3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.
4. In 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:
(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) to be tried without undue delay;
(d) to be tried in his presence, and 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, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;
(g) not to be compelled to testify against himself or to confess guilt.
4. Referring to the Decision of the same Trial Chamber in Hadzihasanovic et al., IT-01-47-PT, Decision on the Prosecution’ Motion for review of the Decision of the Registrar to Assign Mr. Rodney Dixon as co-Counsel to the Accused Kubura, 26 March 2002, Judicial Supplement No. 31bis. In Knezevic, IT-95-4-PT & IT-95-8/1-PT, Decision on Accused’s Request for Review of the Registrar’s Decision as to Assignment of Counsel, 6 September 2002, Judicial Supplement No. 36, Trial Chamber III based its power to review a Registrar’s Decision in this matter on Rule 54 (General Rule).
5. In the present case the Registry had informed the Trial Chamber, at the Motion Hearing, that co-counsel had been appointed “according to the policy […] of the Registry”, that she was qualified and had worked previously on this case as a legal assistant. It also informed the Trial Chamber that it was aware of the disagreement between the Accused and his Counsel as regards the appointment of Suzana Tomanovic, which problem in the understanding of the Registry had been solved.
6. Article 16 (Basic principles)
(C) In the interests of justice and at the request of the person assigned as counsel, the Registrar may, in accordance with Article 14 above, assign a second counsel to assist the lead counsel. The counsel first assigned shall be called the lead counsel.
7. Referring to Barayagwiza, ICTR-97-19-T, Decision on Defence Counsel Motion to Withdraw, 2 November 2000, in which the Trial Chamber found that the Accused in that case did not lack confidence in his lawyers and that he did not argue that they were incompetent to be relevant factors in deciding upon the Motion for withdrawal of Counsel.