The Prosecutor v. Veselin Sljivancanin - Case No. IT-95-13/1-PT

“Decision on Assignment of Counsel”

20 August 2003
Judge Theodor Meron, President

Procedural Background

· On 1 July 2003, Veselin Sljivancanin was transferred to the Detention Unit of the Tribunal. His initial appearance was scheduled to take place on 3 July 2003 but was postponed because the lawyers of his own choosing, Mr. Petronijevic and Mr. Bulatovic, had not been approved by the Registrar.¹

· On 9 July 2003, the Registrar informed Mr. Sljivancanin by a letter decision (“Registrar’s Decision”) that the lawyers of his choice would not be assigned to him as they both failed to meet the requirement of Rule 44(A) of the Rules of Procedure and Evidence (“Rules”) that counsel speak at least one of the Tribunal’s working languages (English and French).² The Registrar noted that even counsel who do not fulfil the language requirement may be appointed pursuant to Rule 44(B)³ “on an exceptional basis , where the interests of justice so demand”. He declined to appoint Mr. Petronijevic under the Rule 44(B) exception because his “history raises questions about his suitability for assignment as counsel, at the Tribunal’s expense”.⁴ The Registrar stated that the right of the accused to choose their own counsel was limited⁵ and that neither Mr. Bulatovic nor Mr. Petronijevic had “come forward with any other reasons why the interests of justice require[d] their assignment”.

· On 10 July 2003, Mr. Sljivancanin made his initial appearance, assisted by temporary counsel Stephen Solley.⁶

· On 14 July 2003, Mr. Sljivancanin appealed the Registrar’s Decision to the President .⁷ He claimed that the Registrar’s Decision violated his right under Article 21(4)⁸ of the Statute to have counsel of his own choosing. He stated that he was confident that his preferred lawyers would work successfully on his case and that he had asked them to find an attorney from an English speaking country to work on his case when the trial got under way. Should the appointment of the two lawyers of his own choice not be possible, he requested that at least one of them be allowed to assist him in the preparation of his defence.

· On 8 August 2003, the Registrar filed a “Submission of the Registrar Pursuant to Rule 33(B)⁹” which the President of the Tribunal Theodor Meron (“President”) interpreted as a response to Mr. Sljivancanin’s appeal. In his submission, the Registrar expressed his view that the language requirement is consistent with the rights of the accused (Article 21 of the Statute) and provided information on the content of the “interests of justice exception”. The Registrar gave his reason for refusing the appointment of Mr. Petronijevic and Mr. Bulatovic : “neither counsel submitted any information with respect to their relationship to the accused that would give the Registry grounds to believe that there was a special relationship between them and the accused”.

The Decision

The President quashed the Registrar’s Decision and remanded the matter to him for reconsideration in light of the present Decision.

The Reasoning

The review of Registrar’s decisions on assignment of counsel

Rule 44 establishes the standards for qualification of any Defence counsel and states in its paragraph (B) that “[a] suspect or accused may appeal a decision of the Registrar to the President”. Article 13 of the Directive on Assignment of Defence Counsel (“Directive”) provides that the President is competent for a review of Registrar’s decisions on assignment of counsel with respect to “suspects” and that the Trial Chamber is competent to carry out such reviews with respect to “accused”.¹⁰ Rule 45, which governs the assignment of counsel paid by the Tribunal, does not provide directly for a review of Registrar’s decisions, and solely states in its paragraph (D) that if a request is refused a further request may be made by a suspect or an accused to the Registrar.

The Registrar’s Decision suggested that the review should be undertaken by the Trial Chamber hearing Mr. Sljivancanin’s case. The President declared that while the question was not “free from doubt”, he believed the appeal was properly directed to him. He considered that “the structure of the Directive [on Assignment of Counsel ] and the wording of Article 13 suggest that the right of review established by Article 13 concerns only Registrar’s decisions as to whether a suspect or an accused meets the criteria for indigence, not Registrar’s decisions concerning the qualifications of a particular counsel”.¹¹

The President noted that it was not in dispute that Mr. Sljivancanin lacked the means to remunerate counsel, that his preferred attorneys were not on the list, and that the Registrar’s Decision “appear[ed] to have been taken”¹² under Rule 45(C), which provides that “[i]n 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”. He recalled that Rule 45 does not provide for a right of appeal from such Registrar’s decisions and declared: “[b]ecause unless they expressly provide to the contrary, the Rules should normally be read as affording some avenue for judicial review of administrative decisions, Rule 45(C)’s incorporation of the standards of Rule 44 may be read as incorporating the provision for Presidential review of decisions under Rule 44(B) concerning the ‘interests of justice’ exception to the language competence requirement. For that reason, Mr. Sljivancanin’s appeal may properly be directed to the President”.¹³

The right to counsel of one’s own choosing

The President rejected Mr. Sljivancanin’s claim that the refusal of the Registrar to assign his preferred lawyers violated his right to counsel of his own choice under Article 21 of the Statute. This matter has already been addressed by the Appeals Chamber of the International Criminal Tribunal for Rwanda (“ICTR”) and by Trial Chambers of the International Criminal Tribunal for the former Yugoslavia (“ICTY ”): while the wishes of an accused when selecting which lawyer will represent him may be relevant, the right of an indigent accused to choose his counsel is a limited right; the Registrar is not necessarily bound by the wishes of an indigent accused , he has wide discretion which he exercises in the interests of justice.¹⁴

The President further found that a challenge to the reasonableness of the language competence requirement itself¹⁵ must fail as “every court requires attorneys practising before it, and especially those paid by it, to be able to function in the court’s working language”.¹⁶ He held that “[t]he reasonableness of that requirement is made all the plainer by the availability of the ‘interest of justice’ exception to it”.¹⁷

The standard of review of Registrar’s decisions

According to the President, a Registrar’s decision to permit or deny assignment of counsel based on the “interest of justice” exception involves questions of both fact and law: (1) the Registrar must first make certain factual determinations, either about the circumstances of the defendant’s case or, as in this case, about the counsel in question’s past conduct, or about both; (2) given the facts as he finds them, he must then determine what the “interests of justice” require.¹⁸ By analogy to the procedure whereby the Registrar determines whether legal aid can be granted, the President found that the first part of the Registrar’s task was “an administrative fact-finding procedure” and held that the Registrar’s findings “need only be established as more probable than not”.¹⁹

In the Kvocka Decision, the Appeals Chamber set “standards for judicial review of administrative decisions” based on “general principles of law derived from the principal legal systems”:

“A judicial review of an administrative decision made by the Registrar [in relation to legal aid] is concerned initially with the propriety of the procedure by which Registrar reached the particular decision and the manner in which he reached it . The administrative decision will be quashed if the Registrar has failed to comply with the legal requirements of the Directive. This issue may in the particular case involve a consideration of the proper interpretation of the Directive. The administrative decision will also be quashed if the Registrar has failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision, or if he has taken into account irrelevant material or failed to take into account relevant material, or if he has reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test). These issues may in the particular case involve, at least in part, a consideration of the sufficiency of the material before the Registrar, but (in the absence of established unreasonableness) there can be no interference with the margin of appreciation of the facts or merits of that case to which the maker of such an administrative decision is entitled”.²⁰

In the present case, the Registrar failed to afford Mr. Sljivancanin an opportunity to respond to the evidence in support of the dismissal of his request to have his preferred attorney assigned. The President found that this amounted to “a failure to act with procedural fairness” and, for this reason, held that “the Registrar’s decision must be quashed and the matter remanded to him for reconsideration”.²¹

The procedure to follow as regards assignment of counsel

The President stated that the Registrar “cannot be required to conduct a mini-trial each time a defendant seeks assignment of a particular lawyer” and that he “need not hold a hearing of any kind”, but that he “must provide the accused with at least a summary of the evidence upon which [he] intends to rely, and […] must take into account whatever materials the accused (in consultation with his preferred attorney ) wishes to submit within some very short period to be determined by the Registrar so as to avoid undue delay”.²² The President made it clear that such obligation of the Registrar “does not in any way relieve the accused of the burden of establishing that the interests of justice demand the assignment of the preferred attorney” and does not “restrict the discretion of the Registrar in defining the bounds of the ‘interests of justice’ exception”.²³ He further emphasised that “the accused (and thus his preferred attorney) need not be given an opportunity to respond to all materials collected by the Registrar, only to those upon which the Registrar intends actually to rely in making his decision ”.²⁴

The discretion of the Registrar in defining the bounds of the “interests of justice ” exception

The President held that “[w]hile the Registrar possesses the authority and the responsibility to define the ‘interests of justice’ exception in the first instance , he must apply the definition consistently across cases”.²⁵ With respect to the bounds themselves, the President found from two recent cases that the Registrar had indicated that, in the absence of other considerations, the interests of justice exception would be satisfied if the accused were to demonstrate the following criteria:

“i) his preferred attorney had represented him previously before a national court in relation to the charges now being brought before the ICTY or related charges ²⁶; ii) the accused (and his preferred attorney) have identified an individual willing to serve as co-counsel who speaks one of the working languages as well as the language of the accused well; iii) the proposed co-counsel has sufficient experience as a criminal defence attorney that he could take over the case if the lead counsel were to withdraw for any reason ; and iv) all expenses for interpretation and translation beyond those usually provided by the Tribunal would be borne by the accused or the lead counsel²⁷”.²⁸

The President held that the Registrar “has the authority to change the criteria he uses in giving meaning to the ‘interests of justice’ exception” but that, in doing so, he must observe “regularities […] intended to ensure fairness to affected parties, to improve the accuracy of the Registrar’s decisions, and to establish a basis for effective judicial review of the Registrar’s decisions”.²⁹ Those regularities are:

“First, the Registrar must explain that he is changing the meaning of the ‘interests of justice’ exception and why he is doing so. Second, he should do so in a way that does not leave a particular applicant facing new standards of which he could not reasonably be aware. He may seek an amendment of the Directive. He may make a general statement to the Association of Defence Counsel and ask them to publicize it, e.g., by posting it on the Association’s website. He may also announce a new interpretation in the course of ruling on a particular request for assignment of counsel, so long as he makes clear to the affected parties the standards upon which the request for assignment will be judged”.³⁰

The President found nothing in the filings of the Registrar suggesting that he was applying a novel interpretation of those criteria and therefore reviewed the record upon which the Registrar made his decision using those criteria. He found that the materials concerning Mr. Petronijevic did not show whether the four above -mentioned criteria were satisfied in the present case. However he found that the evidence concerning Mr. Bulatovic appeared to support the propriety of his appointment as Defence counsel. The President held that the Registrar’s argument that both lawyers did not meet the first criterion would be a sufficient basis for refusing to invoke the “interest of justice”. He found, however, that the refusal to assign Mr. Petronijevic was based on another ground (his conduct when a district Judge in Serbia).³¹

The President remanded the matter to the Registrar and held that he should give Mr. Sljivancanin a brief opportunity to establish that Mr. Petronijevic and Mr. Bulatovic satisfy the four criteria. He further stated that if they fail to do so the Registrar should refuse to assign them but that if they both satisfy those criteria or if Mr. Bulatovic alone does, then the Registrar should assign Mr. Bulatovic as lead counsel.

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1. Sljivancanin, IT-95-13/1-PT, Transcripts (“T”) 3 July 2003, pages 95, 99-100, 104-106 and 108-109. The Registry received by fax a power of attorney for Mr. Petronijevic and Mr. Bulatovic signed by Mr. Sljivancanin on 24 June 2003.
2. Rule 44(A) states that “Counsel engaged by a suspect or an accused shall file a power of attorney with the Registrar at the earliest opportunity. Subject to any determination by a Chamber pursuant to Rule 46 or 77, a counsel shall be considered qualified to represent a suspect or accused if the counsel satisfies the Registrar that the counsel is admitted to the practice of law in a State, or is a University professor of law, speaks one of the two working languages of the Tribunal, and is a member of an association of counsel practising at the Tribunal recognised by the Registrar”.
3. Rule 44(B) states that “At the request of the suspect or accused and where the interests of justice so demand, the Registrar may admit a counsel who does not speak either of the two working languages of the Tribunal but who speaks the native language of the suspect or accused. The Registrar may impose such conditions as deemed appropriate. A suspect or accused may appeal a decision of the Registrar to the President”.
4. The Registrar stated that Mr. Petronijevic had acquired negative international notoriety in matters of human rights and justice for his handling of the criminal case against ethnic Albanians while a district judge in Serbia. The Registrar considered that the past conduct of Mr. Petronijevic could endanger the reputation of the ICTY and that therefore the “interests of justice strongly dictate against his appointment”.
5. See infra “The right to counsel of one’s own choosing”.
6. Mr. Sljivancanin pleaded “not guilty” to all counts.
7. See infra “The review of Registrar’s Decisions on assignment of counsel”.
8. Article 21(4) of the Statute (“Rights of the Accused”) provides in relevant part that: “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: (..) (b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (…) (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; (…)”.
9. Rule 33 (B) reads as follows: “The Registrar, in the execution of his or her functions, may make oral and written representations to the President or Chambers on any issue arising in the context of a specific case which affects or may affect the discharge of such functions, including that of implementing judicial decisions, with notice to the parties where necessary”.
10. Article 13 (Remedy against the Registrar’s decision) reads as follows: “(A) The suspect whose request for assignment of counsel has been denied may, within fifteen days of the date of notification to him, seek the President’s review of the decision of the Registrar. The President may either confirm the Registrar’s decision or decide that a counsel should be assigned. (B) The accused whose request for assignment of counsel has been denied, may, within two weeks of the date of notification to him, make a motion to the Chamber before which he is due to appear for immediate review of the Registrar’s decision. The Chamber may (i) confirm the Registrar’s decision; or (ii) rule that the suspect or accused has means to partially remunerate counsel, in which case it shall refer the matter again to the Registrar for determination of which parts shall be borne by the Tribunal; or (iii) rule that a counsel should be assigned”.
11. Para. 16.
12. Para. 17.
13. Para. 22.
14. See inter alia Kambanda, ICTR-97-23-A, Appeals Chamber Judgement, 19 October 2000, para. 33; Akayesu, ICTR-96-4-A, Appeals Chamber Judgement, 1 June 2001, paras. 61-62; Blagojevic & Jokic, IT-02-60-T, Decision on Independent Counsel for Vidoje Blagojevic’s Motion to Instruct the Registrar to Appoint New Lead and Co-counsel, 3 July 2003, paras. 74-75, summarised in the present issue of the Judicial Supplement; Knezevic et al., IT-95-4-PT, Decision on Accused’s Request for Review of Registrar’s Decision as to Assignment of Counsel, 6 September 2002, Judicial Supplement No. 36.
15. Mr. Sljivancanin did not challenge the reasonableness of the language competence requirement.
16. Para. 20.
17. Ibid.
18. Para. 22.
19. Ibid. See Kvocka et al., IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Zigic (“Kvocka Decision”), 7 February 2003, Judicial Supplement No. 40: the burden of proof of the Registrar “is not satisfaction beyond reasonable doubt, as in a criminal trial, but merely satisfaction that, more probably than not, what is asserted is true, or (as it is sometimes described) satisfaction on the balance of probabilities” (para. 12).
20. Kvocka Decision, para. 13.
21. Para. 23, in keeping with the standards set forth in the Kvocka Decision.
22. Para. 23.
23. Ibid. In paragraph 29, the President further held that “[t]he party seeking assignment of counsel bears the burden of convincing the Registrar that his preferred attorney meets the relevant criteria” and that “[t]he Registrar bears the responsibility to make clear the basis for his decisions”.
24. Footnote 17 of the Decision.
25. Para. 24.
26. In the view of the President, this includes representation of the accused in the extradition proceedings leading to the accused’s transfer to the Tribunal (footnote 18 of the Decision).
27. Stanisic, IT-03-69-PT, Decision of the Registrar, 18 July 2003, page 2; Letter from the Registrar to Mr. Zeljko Olujic, 25 June 2003. The letter to Mr. Olujic concerns Ivica Rajic, IT-95-12-PT. The letter to Mr. Olujic is not a formal decision but a proposal setting out the criteria upon which the Registrar “may favourably consider” the request for assignment (footnote adapted from footnote 19 of the Decision).
28. Para. 24.
29. Para. 25
30. Ibid.
31. See footnote 4 and text accompanying note.