The Prosecutor v. Vidoje Blagojevic & Dragan Jokic - Case No. IT-02-60-T

“Decision on Independent Counsel for Vidoje Blagojevic’s Motion to Instruct the Registrar to Appoint New Lead Counsel and co-counsel”

3 July 2003
Trial Chamber I (Judges Liu [Presiding], Vassylenko & Argibay)

Procedural Background

· On 10 August 2001, Vidoje Blagojevic (“the Accused”) was transferred to the United Nations Detention Unit.

· On 31 August 2001, in accordance with a request from the Accused, Michael Karnavas was appointed lead counsel for the Accused.¹

· On 25 September 2002, in accordance with a request from Mr. Karnavas, the Registrar appointed Suzana Tomanovic co-counsel for the Accused.²

· At the 27 November 2002 Status Conference, the Accused informed the pre-trial Judge of some problems with his Defence. At the ex parte³ and closed-session hearing held the same day (“November Hearing”), the Accused explained that his complaint concerned the assignment of co-counsel which he stated “was not carried out pursuant to my suggestion and with my consent”. He declared that this would have “serious consequences”.⁴ He expressed his belief that lead counsel and co-counsel “have to be elected and assigned in accordance with the request and the interests of the client”. He informed the pre-trial Judge that he had sent a letter to the Registry on 16 September 2002 in which he had recommended another person (“Third Person”) as co-counsel. He asked the Registry to explain him in writing why his suggestion had been refused.⁵ A representative of OLAD informed the Trial Chamber that she had met with the Accused to explain to him that the Third Person did not fulfil the criteria for appointment and that Suzana Tomanovic’s appointment did conform with the Directive on Assignment of Defence Counsel (“Directive”) as amended on 12 July 2002⁶, as it is for lead counsel to select co-counsel.

· On 9 December 2002, Trial Chamber II denied the Accused’s motion to have his co-counsel replaced as no good cause had been shown requiring it to intervene in the Registrar’s decision.⁷ It found that both Lead counsel and co-counsel had been appointed in conformity with the Rules of the Tribunal and the Directive⁸ and that the Accused’s request to have his co-counsel removed stemmed from his desire to have the Third Person assigned and was “not due to any misconduct, incompetence or any conflict of interest on the part of the co-counsel”.⁹ The Trial Chamber found that no grounds had been identified that 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 is no longer possible”.¹⁰ No appeal or motion for certification to appeal from the Trial Chamber Decision was lodged by the Accused.

· At the 27 March 2003 Status Conference, the Accused again raised the issue. After the Status Conference, an ex parte hearing¹¹ was held (“March Hearing”), at which the Accused asserted that while the matter of the assignment of his counsel had been resolved in accordance with the Rules, it had not been resolved in accordance with his rights, as he understood them to be. The pre-trial Judge heard all the parties and held that it was for the Registrar to make a decision on the merits. The pre-trial Judge further stated that, after the decision by the Registrar, it would be for the Trial Chamber, based on its inherent powers to intervene in exceptional cases, to decide on whether or not it was had to come to a conclusion based on the submissions.

· On 8 April 2003, the Registrar issued a decision (“Registrar’s Decision”) in which he refused to replace co-counsel or Lead counsel. He found that the Accused “ha[ d] not shown any substantive grounds relating to the performance or professional ethics of Ms. Tomanovic justifying a replacement; that no change in circumstances had taken place since the Trial Chamber’s Decision of 9 December 2002; and that to replace co-counsel at this point in the proceedings may cause prejudice to the Accused by having the potential to cause, inter alia, a delay in the proceedings and thereby adversely affect his right to be tried expeditiously”. No appeal of the Registrar’s Decision was lodged by the Accused.

· At the Pre-Trial Conference held on 5 May 2003, the Accused contended that he did not have a lawyer present, as he had dismissed Mr. Karnavas. The Trial Chamber informed him that it had, to date, found no reason to change his Defence team and that it would ask the Registrar to assign to him an independent counsel to consult on the matter and assist him in drafting a motion should he wish to do so. The Trial Chamber also notified him that his present Counsel would continue working with him.

· On 23 May 2003, in keeping with an Order of the Trial Chamber of 9 May 2003¹², the Registrar appointed Mr. Jan Sjöcrona independent legal counsel (“Independent Counsel”) for the Accused. That same day, the Trial Chamber ordered that an ex parte and closed session hearing be held on 29 May 2003 in order to discuss the matter, with the Accused represented by Independent Counsel.

· At the 29 May 2003 hearing (“May Hearing”), through the Independent Counsel, the Accused asked for current counsel to be withdrawn and a new legal team to be appointed. He alleged inter alia a lack of trust in his Defence and a subsequent breakdown in communication.

· On 5 June 2003, Independent Counsel filed an ex parte and confidential Motion for the Registrar to appoint a new lead and co-counsel.¹³

· On 11 June 2003, the Registrar filed a confidential and ex parte response to the May Hearing and the Motion.¹⁴

· On 12 June 2003, the Prosecution filed its response on a confidential and ex parte basis.¹⁵

· On 16 June 2003, Counsel¹⁶ filed their Response to the Motion on a confidential and ex parte basis (“Counsel’s Response ”).¹⁷ Following the filing of Counsel’s Response, the Trial Chamber ordered Independent Counsel, if he wished to do so, to file a reply by 27 June 2003.¹⁸ It denied Independent Counsel’s request to file a reply on 18 August 2003.

The Decision

The Trial Chamber denied the Motion.¹⁹ It ordered that:

1. the Registrar shall appoint, in consultation with the Accused, a legal representative to assist the Accused and his defence team in the preparation of his defence before the Tribunal in accordance with the terms specified below no later than 10 days after the issuance of this Decision;

2. the legal representative, who shall not fall under the lead counsel’s authority or be remunerated from the resources currently granted to Counsel, must share Counsel’s objectives in ensuring that the Accused receives a fair and expeditious trial and a competent, effective and zealous defence; towards that end, the legal representative shall work with the Accused and Counsel, not simply as a “bridge” or interlocutor, but as a temporary addition to the Accused’s defence team, to contribute as the Accused, primarily, and Counsel, see fit to ensure the proper working and effective presentation of the Accused’s defence. It is primarily, therefore, for the Accused, through his actions, to assess how effective his Counsel can be in ensuring that his rights are protected and interests are promoted; and

3. the terms of the assignment of the legal representative are:

- the legal representative shall be a person who meets the qualifications of counsel pursuant to Rule 44 and Rule 45 of the Rules, and is currently on the list of counsel maintained by the Registrar pursuant to Rule 45 of the Rules;

- the legal representative shall be assigned for a period of up to three months;

- the legal representative is a compliment to the defence team and is not a replacement ; the Accused must work with his Counsel, through whatever means he finds most appropriate, while recognising that the legal representative’s appointment is a temporary and extraordinary measure to normalise the situation;

- the legal representative has the right to appear in court;

- the legal representative is bound by lawyer-client privilege;

- in the event that the Accused has a specific issue he would like to raise before the Trial Chamber, he may do so through Counsel or, upon being granted leave, through the legal representative;

- the legal representative will not have the right to examine and cross-examine witnesses; and

- the legal representative shall be paid at a rate between legal assistant and co- counsel, to be determined by the Registry.

The Reasoning

The admissibility of the Motion

The Trial Chamber recognised that the Registrar has primary responsibility in the matter of assignment of counsel²⁰ but recalled that the Trial Chamber, pursuant to its inherent power and its duty to guarantee a fair trial and the proper administration of justice as set forth in the Statute, may review Registrar’s decisions on assignment of counsel.²¹ It therefore found itself competent to review the Registrar’s Decision of 8 April 2003.

Assignment of co-counsel

The relevant provision is Article 16 of the Directive on Assignment of Counsel (“Directive”) which states that an accused “shall be entitled to have one counsel assigned to him and that counsel shall handle all stages of the procedure and all matters arising out of the conduct of the […] accused’s defence, including where two or more crimes are joined in one indictment” (Article 16(A)); that “[i ]n the interests of justice and at the request of the person assigned as counsel, the Registrar may […] assign a second counsel to assist the lead counsel. The counsel first assigned shall be called the lead counsel” (Article 16(C)); that “[u]nder the authority of lead counsel, who is responsible for the defence, co-counsel may deal with all stages of the procedure and all matters arising out of the representation of the accused or of the conduct of his defence […]” (Article 16(D)).²²

The Trial Chamber explained that the provision on assignment of co-counsel was written to the Directive upon a proposal by the Registry during the June 1996 Plenary. It referred to the Registry’s memorandum which explained why such a provision was necessary (“Registry’s Memorandum”).²³ According to the memorandum, co-counsel was clearly seen as a resource and assistant for lead counsel²⁴ and not intended to be a “second counsel” for the accused.²⁵ The Registry submitted that by inserting the amendment in Article 16 instead of creating a new article, it was clear that it was “not for the Accused to apply for a second counsel, but for Lead Counsel to do so” and that “once appointed, co-counsel is firmly under the supervision and authority of Lead Counsel, who has the responsibility for the defence team”.²⁶

The Trial Chamber held that “[a]s evident from the Statute, Rules and the Directive, and recently affirmed in a decision by the President of the Tribunal, there is no right for the Accused to have co-counsel; it falls within the discretion of the Registrar to appoint a co-counsel in the interests of justice and upon a request by the Lead Counsel”.²⁷ It found that the appointment of Ms. Tomanovic did conform with the requirements of the Rules and the Directive and that Lead Counsel had acted in a manner consistent with his obligations under the Code of Professional Conduct for Defence Counsel Appearing before the International Tribunal (“Code”).²⁸ In reaching this finding, the Trial Chamber attached particular significance to the fact that Mr. Karnavas had “communicated his proposal to appoint Ms. Tomanovic as co-counsel from the time he was under consideration as lead counsel and informed the Accused of the status of his defence team”.²⁹

The Trial Chamber held that “[w]hile it certainly is a more favourable situation when lead counsel and an accused can agree on the selection of co-counsel, barring evidence that the Accused had a conflict of interest with the proposed co-counsel or that she was manifestly unqualified or incompetent, or, that through her performance as legal assistant, proposed co-counsel demonstrated that she was ineffective or uninterested in being a zealous advocate for the Accused, lead counsel’s choice will be considered as a valid one”.³⁰ It found that the Accused had failed to present evidence of such factors and, consequently, that the selection and appointment of Ms. Tomanovic as co-counsel had to stand.

Withdrawal of counsel

Article 19(A) of the Directive (Suspension and Withdrawal of Counsel) states that 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”. The Trial Chamber held that the Registrar “is vested with the discretion to withdraw the assignment of counsel upon the request of an accused; if such withdrawal is not seen to be interests of justice, the Registrar has the discretion to refuse to withdraw counsel”.³¹ The Registrar has granted such request by accused either when it found that “exceptional circumstances” existed³² or when assigned counsel had agreed that to his or her withdrawal was justified and in the interests of justice.³³ In some other cases, the Registrars as well as Trial and Appeals Chambers of both the ICTY and the International Criminal Tribunal for Rwanda (“ICTR”), have refused accused’s requests to withdraw counsel.³⁴ The Trial Chamber inferred from these cases that “the burden of proof is squarely on the person requesting the withdrawal of assigned counsel to demonstrate good cause for the withdrawal of assigned counsel”.³⁵

In the present case, the Registrar denied the request as the Accused had not provided grounds for the withdrawal of Counsel. The Trial Chamber did not find that there were factors which the Registrar had failed to take into consideration when determining whether sufficient grounds for the disqualification or dismissal of counsel existed.³⁶

Decisions of counsel against the wishes of an accused

While rejecting the alleged breakdown in communication between the Accused and his Counsel, the Trial Chamber held that “in what circumstances a given counsel decides to take a decision that may be against the wishes of his or her client because that counsel, being competent and under professional obligations, genuinely believes that the decision is in the best interests of the client is largely a question for counsel, and only counsel to answer. The Trial Chamber must satisfy itself ‘only’ that the counsel made this decision in light of his obligations under the Rules, the Directive and the Code, namely the duty of loyalty, honesty, competency, skill and care, with open communication, and the over arching duty to act in the best interests of the client”.³⁷

The Trial Chamber denied the Motion and decided that Mr. Karnavas would remain Mr. Blagojevic’s Lead Counsel and that Ms. Tomanovic would continue to act as co -counsel. Nevertheless, given “the reality that the Accused’s right to a fair trial may be compromised due to his refusal to meet with, instruct and make use of the counsel that have been assigned to him”³⁸, the Trial Chamber decided to order a “somewhat extraordinary measure”.³⁹ In an effort to “promote better communication between the accused and counsel”⁴⁰, it instructed the Registrar to appoint, in consultation with the Accused, a legal representative to assist him and his defence team in the preparation of his case.

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1. Decision by the Registrar Assigning Counsel as of 31 August 2001, dated 3 September 2001 and filed 5 September 2001. The initial appointment of Mr. Karnavas was for 120 days, pending the review of Mr. Blagojevic’s financial status. The appointment of Mr. Karnavas was renewed on 24 December 2001.
2. Decision by the Registrar Assigning Counsel as of 25 September 2002, dated 2 October 2002 and filed 3 October 2002. The Decision states: “Considering that on the basis of Article 16 (C) of the Directive, the Registrar may upon a request of the lead counsel, assign a second counsel in the interests of justice.”
3. At the hearing, defence counsel for Mr. Blagojevic, the Prosecution and representatives of the Registry/Office of Legal Aid and Detention Matters section (“OLAD”) were present.
4. November Hearing, Transcripts (“T.”) 107.
5. Ibid., T. 110.
6. IT-73/Rev.9.
7. Decision on Oral Motion to Replace Co-Counsel, 9 December 2002 (“Trial Chamber Decision”).
8. Trial Chamber Decision, page 4.
9. Ibid., pages 4-5.
10. Ibid., page 6.
11. Present at the hearing were the Accused, Counsel and representatives of the Prosecution.
12. Order on the Appointment of Independent Legal Counsel (“Appointment Order of Independent Counsel”), 9 May 2003.
13. Independent Counsel for Vidoje Blagojevic’s Motion to Instruct Registrar to Appoint New Lead and co-counsel (“Motion”). On 6 June 2003, the Trial Chamber lifted the confidentiality of the Motion.
14. Motion of the Registrar (“Registrar’s Response”). The Trial Chamber lifted the ex parte nature of the Registrar’s Response on 12 June 2003.
15. Prosecution’s Response to Independent Counsel for Vidoje Blagojevic’s Motion to Instruct Registrar to Appoint New Lead and Co-Counsel (“Prosecution’s Response”). The Trial Chamber lifted the ex parte nature of the Prosecution’s Response in relation to the Accused, Independent Counsel, and Counsel on 13 June 2003.
16. The Trial Chamber refers to Michael Karnavas as “lead counsel”, to Suzana Tomanovic as “co-counsel” and to both of them together as “Counsel”.
17. Counsel’s and Co-Counsel’s Response to the Motion by Independent Counsel, 16 June 2003.
18. In the same Order, the Trial Chamber lifted the ex parte nature of Counsel’s Response.
19. On 25 July 2003, the Accused filed a confidential and ex parte request for certification to appeal the Decision pursuant to Rule 73 of the Rules of Procedure and Evidence (“Rules”). His request was granted by Trial Chamber I that same day (Decision on Vidoje Blagojevic’s Request for Certification). On 15 September 2003, the Appeals Chamber dismissed the Appeal (IT-02-60-AR73.4, Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team). It considered that the Appellant has failed to demonstrate any error of the Trial Chamber in the Impugned Decision that would warrant the interference of the Appeals Chamber and that it was in the interests of justice that the Appellant retain his assigned Counsel.
20. See inter alia Blagojevic, IT-02-60-PT, Decision on Oral Motion to Replace Co-Counsel, 9 December 2002, Judicial Supplement No. 38.
21. Ibid. See also Hadzihasanovic et al., IT-01-47-PT, Decision on the Prosecution’s 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. 31 bis.
22. Emphasis in the original.
23. Memorandum from the Deputy Registrar to the President of the Tribunal and the Registrar entitled “Proposed amendments to the Directive on the Assignment of Defence Counsel”, 21 June 1996.
24. Ibid., page 4: “Conceptually, the co-counsel should be considered as a resource to the Lead Counsel, rather than as a second counsel assigned to the Accused.”
25. Ibid., pages 3-4: “In the situation where assigned counsel needs the assistance of a co-counsel, this amendment allow [for] him to apply to the Registrar for one to be appointed”.
26. Ibid., page 4.
27. Para. 79 (emphasis in the original). The Trial Chamber relied on Brdjanin, IT-99-36-T, Confidential Order Relating to Lead Counsel’s Appeal from Registrar’s Confidential Decision of 7 March 2003, 1 April 2003 and Krajisnik, Decision by the Registrar, 23 January 2003 (the appointment of co-counsel to assist lead counsel, upon his request, was justified due to “the increase of work resulting from the preparation of the hearing”).
28. IT/125/Rev.1, 12 July 2002. See for example Article 12 (Communication) which states that “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”.
29. Para. 84 (emphasis in the original).
30. Para. 85.
31. Para. 86.
32. Martinovic, IT-98-34-A, Decision by the Registrar, 19 May 2003.
33. Delalic et al., IT-96-21-T, Decision on Request by Accused Mucic for Assignment of New Counsel, 24 June 1996.
34. The Trial Chamber took note of Barayagwiza Decision, in which the Trial Chamber considered the fact that the accused did not lack confidence in his lawyers and that he did not argue that they were incompetent to be relevant in deciding upon the motion for withdrawal of counsel (Barayagwiza, ICTR-97-19-T, Decision of Defence Counsel Motion to Withdraw, 2 November 2000). It also referred to Delalic et al., IT-96-21-A, Order Regarding Esad Landzo’s Request for Removal of John Ackerman as Counsel on Appeal for Zejnil Delalic, 6 May 1999, in which the Accused requested that lead counsel for a co-accused be withdrawn on the basis of a potential conflict of interest.
35. Para. 86.
36. In paragraph 92 of the Decision, the Trial Chamber emphasised that “what is relevant to its consideration of all counsel appearing before the Tribunal are their legal qualifications, as reflected in Rule 44 and Rule 45 of the Rules, including reasonable experience in criminal or international law”. In relation to claims of ineffective assistance of counsel, it recalled that what must be demonstrated is that inter alia “Counsel failed to act with competence, skill, care, honesty and loyalty; Counsel failed to diligently and promptly protect the client’s best interests; and failed to keep the client informed about the status of his case”, as stated in Articles 10-12 of the Code (para. 93).
37. Para. 104.
38. Para. 112.
39. Para. 114.
40. Ibid.