Trial Chambers
The Prosecutor v. Isak Musliu - Case No. IT-03-66-PT

“Decision on Assignment of Defence Counsel”

21 October 2003
Judge Theodor Meron, President

Appeal by Counsel against the decision of the Registrar to remove him from the Rule 45(B) list for failure to satisfy the language requirements - Exceptions to the language requirement in the “interests of justice” 

Appeal by Counsel against the decision of the Registrar to remove him from the Rule 45(B) list for failure to satisfy the language requirements: Article 14 of the Directive does not grant Counsel a right of appeal to the President from a decision of the Registrar to remove Counsel from the list where the basis of the removal is the Counsel’s failure to satisfy the requirements of Article 14(A).

Exceptions to the language requirement in the “interests of justice”: the “interests of justice” requirement of Article 14(A) cannot be satisfied in any case where Counsel does not speak the native language of the accused.

Procedural Background

Mr Klaus W. Kirchner sought to appeal against the Registrar’s decision to remove him from the list of Counsel under Rule 45(B)1 of the Rules of Procedure and Evidence (“Rules”) and against the Registrar’s refusal to assign him as lead Counsel to Isak Musliu (“the Accused”).2 The basis of the Registrar’s decision was that he could not be satisfied that Mr Kirchner met the language requirement under Article 14(A)(iii) of the Directive on Assignment of Defence Counsel (“Directive”)3 and Rule 44(A).4

The Decision

The President determined that, under Article 14 of the Directive, Counsel has no right of appeal to the President against the decision of the Registrar to remove him from the Rule 45(B) list for failure to satisfy the language requirements, and that an appeal pursuant to Rule 44(B)5 must fail as Counsel does not speak the language of the Accused. He dismissed the appeal.

The Reasoning

Exceptions to the language requirement “in the interests of justice”

Rule 44(A) of the Rules and Article 14(A) of the Directive require that a Counsel speak one of the two languages of the Tribunal (English or French) in order to be included on the Rule 45(B) list. There are however two exceptions to the requirement: Article 14(A)(iii)) which envisages such an exception “in the interests of justice” and Rule 44(B) which permits such an exception “where the interests of justice so demand” and when Counsel “speaks the native language of the suspect or accused”.

The President held that “the interests of justice requirement of Article 14(A) could not be satisfied in any case where Counsel did not speak the native language of the accused”.6

Appeal by Counsel against the decision of the Registrar to remove him from the Rule 45(B) list for failure to satisfy the language requirements

Based upon Mr Kirchner’s communications with the Registry, the Registrar determined that he was not sufficiently proficient in English to satisfy the language requirement and accordingly removed him from the Rule 45(B) list pursuant to Article 14(C).7 Following that removal, Counsel appealed to the President.

The President held that “Article 14 of the Directive does not grant Counsel a right of appeal to the President from a decision of the Registrar to remove Counsel from the list where the basis of the removal is the Counsel’s failure to satisfy the requirements of Article 14(A)”. He confirmed, however, that there is a right of appeal to the President under Rule 44(B).8

As Counsel in this case neither had sufficient proficiency in either English or French nor speaks the language of the Accused, the President dismissed the appeal. He nevertheless expressed his concern that the Registrar’s decision to remove Counsel was made without Counsel being granted the opportunity to be heard.He held that if Counsel could establish to the satisfaction of the Registrar that he did meet the language requirements for inclusion on the Rule 45(B) list, the proper course for him to follow was to provide the necessary evidence establishing this fact and to request the Registrar to consider his request based on such supporting evidence.

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1. Rule 45(B) states: “(B) A list of Counsel who, in addition to fulfilling the requirements of Rule 44, have shown that they possess reasonable experience in criminal and/or international law and have indicated their willingness to be assigned by the Tribunal to any person detained under the authority of the Tribunal lacking the means to remunerate Counsel, shall be kept by the Registrar”.
2 - In a decision dated 8 September 2003, the Registrar decided to withdraw the assignment of Mr Bajram Krasniqi as lead-Counsel to the Accused. Mr Krasniqi was not on the Rule 45 list as he did not speak one of the two working languages of the Tribunal. He had however been assigned on 25 March 2003 under the Rule 44(B) exception, i.e. “in the interests of justice” as he spoke the language of the Accused. In the withdrawal decision, the Registrar noted that “the replacement Counsel should […] be fully proficient in one of the working languages of the Tribunal in order to avoid delays”.
3 - Article 14(A)(iii) states: “(A) Any person may be assigned as Counsel if the Registrar is satisfied that he is admitted to the list of Counsel envisaged in Rule 45 (B) of the Rules. A person is eligible for admission to the list if: iii. he speaks one of the two working languages of the Tribunal, except if the interests of justice do not require this; […].”
4 - Rule 44(A) states: “(A) 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.”
5 - Rule 44(B) states: “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.”
6 - Para. 2.
7 - Article 14(C) states: “The Registrar must remove the name of Counsel from the list referred to in Rule 45 (B) where Counsel no longer satisfies the requirements of Article 14 (A).”
8 - See Veselin Sljivancanin, IT-95-13/1-PT, Decision on Assignment of Counsel (“Sljivancanin Decision”), 20 August 2003, in which the President held that “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” (para. 18). See Judicial Supplement No. 43.
9 - In the Sljivancanin Decision, the President held that a Registrar’s decision to permit or deny assignment of Counsel based on the “interests of justice” exception involves questions of both fact and law and that the factual determination was “an administrative fact-finding procedure” which had to meet the “standards for judicial review of administrative decisions” as set by the Appeals Chamber in the Kvocka Decision (Kvocka et al., IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Zigic, 7 February 2003, Judicial Supplement No. 40). One of the standards is that: “the administrative decision will […] 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”. In the Sljivancanin Decision, the President found that 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 and that such failure amounted to “a failure to act with procedural fairness”. He decided to quash the Registrar’s decision and to remand the matter to him.