The Prosecutor v. Milutinovic et al. - Case No. IT-99-37-AR73. 2

“Decision on Interlocutory Appeal on Motion for Additional Funds”

13 November 2003
Appeals Chamber (Judges Weinberg de Roca [Presiding], Pocar, Shahabuddeen, Hunt & Güney)

Procedural Background

· Dragoljub Ojdanic (“Accused”) was indicted on 24 May 1999 for war crimes and crimes against humanity allegedly committed in villages and municipalities throughout Kosovo between January and June 1999. He is charged with individual and superior responsibility on the basis of his position of Chief of Staff of the Yugoslavian Army, as well as his membership in a joint criminal enterprise with the then President of the Federal Republic of Yugoslavia (Slobodan Milosevic), the then President of the Republic of Serbia (Milan Milutinovic), the then Vice-Premier of the Federal Republic of Yugoslavia (Nikola Sainovic) and other persons.

· Under the Tribunal’s Legal Aid System (“Legal Aid System”), his case was ranked at level III by the Registrar in consultation with the Trial Chamber on 31 January 2003.¹ Fr the pre-trial phase, the Registrar allocated a maximum of 3,000 working hours for counsel and co-counsel and 4,000 working hours for investigators and legal assistants. Being partially indigent, the Accused bore the costs of 400 hours of investigative work at the pre -trial stage.

· In a letter dated 5 March 2003, the Accused requested the allocation of additional resources. He claimed that further resources were necessary because of the specificity of the case and the anticipated work necessary to prepare the case for trial. His request was rejected by the Registrar on 3 April 2003 who considered that the tasks put forward by the Accused had already been taken into account when ranking the case at level III.

· In a motion dated 15 April 2003, the Accused sought review of the Registrar’s decision by the Trial Chamber. He alleged that the resources provided were insufficient to ensure an effective and competent defence and therefore requested the allocation of additional resources.

· On 8 July 2003, the Trial Chamber rendered its “Decision on Motion for Additional Funds” (“Impugned Decision”). It recognised that the Registrar has the primary responsibility for the determination of matters relating to remuneration of counsel under the Legal Aid System and held that “in the exercise of its powers under Rule 54² of the Rules and the Trial Chamber’s statutory obligation to ensure a fair and expeditious conduct of the proceedings with full respect for the rights of the accused, the Trial Chamber is undoubtedly empowered to review the Registrar’s decision, albeit only upon exceptional circumstances being shown”.³ It accepted as valid “the Registrar’s Comment that while the Registrar is open to certain flexibility in considering requests for additional resources, the Defence should demonstrate exceptional circumstances or circumstances beyond its control if such requests are to be granted”. The Trial Chamber considered that no such circumstances had been shown and accordingly denied the Motion.⁴

· On 11 July 2003, General Ojdanic requested certification to appeal the Impugned Decision.⁵ The Trial Chamber granted certification on 16 July 2003.⁶ On 23 July 2003, Ojdanic (“Appellant”) filed his appeal against the Impugned Decision.⁷

· On 29 August and 3 September 2003 respectively, the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (“ADC-ICTY”) filed an amicus curiae brief in support of the appeal and then submitted an addendum. On 30 September 2003, the Association Internationale des Avocats de la Défense – International Criminal Defence Attorneys Association (“AIAD-ICDAA”) filed a motion to appear as an amicus curiae and to join in the brief of the ADC-ICTY.

Decision

The Appeals Chamber dismissed the Appeal and denied the ADC-ICTY motion for leave to file its amicus curiae brief and addendum as well as the submission of the AIAD-ICDAA.

Reasoning

Amici curiae

The Appeals Chamber considered that the ADC-ICTY and the AIAD-ICDAA submissions related predominantly to the larger issue of the “merits and deficiencies” of the Legal Aid System and therefore found that it was “not desirable for the proper determination of this case” to grant them leave to appear as amicus curiae pursuant to Rule 74 of the Rules of Procedure and Evidence.⁸

Review of a decision by the Registrar on a request for additional funds

The Appeals Chamber found that the Trial Chamber had correctly considered that “the Registrar has the primary responsibility for the determination of matters relating to remuneration of counsel under the Legal Aid System of the International Tribunal ”.⁹ It recalled its previous finding that where the Directive on Assignment of Defence Counsel (“Directive”) expressly provides for a review of the Registrar’s Decision, the Trial Chamber cannot interfere in the Registrar’s decision and has to stay the trial until that procedure has been completed.¹⁰ However it held that, where the Directive does not expressly provide for a review of the Registrar’s decision, the Trial Chamber, pursuant to its statutory obligation to ensure the fairness of the trial, is competent to review the Registrar’s decision in light of its effect upon the fairness of the trial.¹¹ The Appeals Chamber stated that “[t]he exercise of such power should, however, be closely related to the fairness of the trial, and […] should not be used as a substitute for a general power of review which has not been expressly provided for in the Directive ”.¹² It held:

“If there is no effect of the Registrar’s decision upon the fairness of the trial, the accused should be left to pursue the remedy given in Article 31 of the Directive which requires the Registrar, in the event of a disagreement relating to calculation of fees, payment of remuneration, or reimbursement of expenses of Defence Counsel, to make a decision, after consulting the President and, if necessary, the Advisory Panel”.¹³

The Appeals Chamber noted that the Trial Chamber had correctly assessed the elements of the case. It invited the Registrar to comment on the Defence Motion for Additional Funds. “Mindful of its obligations to ensure a fair and expeditious conduct of the proceedings with full respect for the rights of the accused”, it took into account the submissions of both parties and all the relevant factors in reaching the decision that no exceptional circumstances existed for granting additional funds to the Defence.¹⁴ The Appeals Chamber further found that the Appellant had failed to show that the Trial Chamber committed an error in accepting the Registrar’s finding that the Defence had not demonstrated any “ exceptional circumstances or circumstances beyond its control which would warrant additional resources during the pre-trial phase”.¹⁵

Addressing the Appellant’s claim that his assigned counsel may be ethically required to withdraw from representing the Appellant because they do not have adequate resources to defend him, the Appeals Chamber observed that “the assigned counsel agreed to represent the Appellant, aware of the system of remuneration for assigned counsel, and are bound thereby”.¹⁶ It found that there had been “no change in the terms of representation or in the initial agreement, and [that] counsel [were] required to fulfil their obligations to the International Tribunal”.¹⁷

Equality of arms

The Appellant submitted that the Trial Chamber had misdirected itself in law when it failed to consider the impact of the Registrar’s decision on the right of the accused to “equality of arms”. The Appeals Chamber recalled the its findings in the Kayishema and Ruzindana case that “equality of arms between the Defence and the Prosecution does not necessarily amount to the material equality of possessing the same financial and/or personal resources”.¹⁸ It also referred to the Tadic case in which the Appeals Chamber took the view that “equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case”.¹⁹

The Appeals Chamber found that the Appellant had “not shown how the Trial Chamber [had] failed to address the imbalance of resources between the Prosecution and the Defence and in that way violated the principle of equality of arms”.²⁰ It declared that the principle of equality of arms would be violated “only if either party [was] put at a disadvantage when presenting its case”.²¹ In the circumstances of this case, the Appeals Chamber found that the Appellant could not rely on the alleged inadequacy of funds during the pre-trial stage to establish such a disadvantage.

Criteria for the allotment of resources to Defence teams

The Appellant alleged that the Trial Chamber had erred by consulting the Registrar given that he had failed to assess properly the request for additional funds. The Appeals Chamber found, on the face of the language used in Article 22 of the Directive²², that the Registrar had “misdirected himself when he affirmed in his submissions to the Trial Chamber that ‘the actual duration of the pre-trial stage is not a relevant factor’²³ to take into account when allocating a lump sum under the Legal Aid System”.²⁴ However, the Appeals Chamber found that the Registrar was correct in that he found that the amount of resources allocated to each Defence team depends on factors such as the level of complexity of the case and the amount of work required to ensure effective pre-trial preparation.²⁵ The Appeals Chamber held that “it is the amount of work required, rather than the length of the pre-trial stage, which should determine the allotment for each Defence team”.²⁶

Separate Opinion of Judge Shahabuddeen

Judge Shahabudden agreed with the Decision of the Appeals Chamber and proposed to support its “chief proposition that an extension of the duration of the pre-trial stage is not a sufficient reason for paying out additional legal aid funds unless justified by work which was not estimated when the original grant was made” (para. 1).

Judge Shahabuddeen analysed inter alia the relevant part of Article 22(A ) of the Directive which states that “[i]n the event that a stage of the procedure is substantially longer or shorter than estimated, the Registrar may adapt the allotment ”. He held that:

the word “may” does not give a discretionary power to the Registrar: “If […] the phase of the procedure is indeed substantially longer than estimated, the Appellant has a legal right to additional funds and, correspondingly, the Registrar has no discretion in deciding whether to make an adaptation in order to effectuate that legal right” (para. 6);

the word “substantially” qualifies “not only the temporal aspect of an extension but also the material aspect of an extension”. The phase “substantially longer […] than estimated” means that there is “unestimated work which remains to be done in order to bring that phase of the procedure to a close”. Thus “an entitlement to additional funds depends not merely on whether there is an extension of duration but on whether that extension reflects an increase in work over and above the level originally estimated” (para. 7).

As a result, Judge Shahabuddeen found that “if duration is extended but no unestimated work has to be done, the Registrar is entitled to say that the phase of the procedure is not substantially longer than estimated within the meaning of the applicable provision”. He added that “it would be wrong to hold that a shortening of duration mechanically results in a corresponding reduction in funds even where there has been no reduction of work” (para. 8).

Further, Judge Shahabuddeen interpreted the last sentence of Article 22(A) of the Directive²⁷ as “being applicable only if the Registrar decides to adapt the existing allotment and there is a disagreement as to what should be the new maximum” (para. 12).

Separate Opinion of Judge David Hunt

Judge Hunt analysed the background of the appeal as well as the case-law regarding the review of decisions made by the Registrar.²⁸ He examined inter alia the procedure laid down in Article 22(A) of the Directive in cases of disagreement between the Registrar and Defence counsel on to the maximum allotment. He stated that:

- the procedure whereby the Registrar is obliged to consult with the Trial Chamber and, if necessary, the Advisory Panel, is “sufficiently analogous to a review as to require a similar restraint upon the power of the Trial Chamber to act beyond staying the proceedings until that procedure has been carried out” (para. 15);
- if there is a disagreement between the Registrar and the Trial Chamber as a result of that consultation, or if the Accused still challenges the decision of the Registrar after he has consulted with the Trial Chamber, it becomes necessary for the Registrar to consult with the Advisory Panel also (para. 18).²⁹

Judge Hunt considered each ground of appeal separately and found that he would have upheld the third ground and returned the matter to the Registrar for him to reconsider the allotment of additional funds. He considered that the requirements for “exceptional circumstances” or “events beyond the influence of the Defence” in support of a claim for additional funds were “invalid limitations” to the flexibility allowed for by the Legal Aid System.

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1. See Comprehensive Report on the Progress made by the International Criminal Tribunal for the Former Yugoslavia in Reforming its Legal Aid System, Report of the Secretary-General, General Assembly, Fifty-Eighth session, 12 August 2003, A/58/288). Available on the Tribunal’s website at www.un.org/icty (under “Basic Legal Documents/Defence”).
2. Rule 54 (General Rule) At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.
3. Impugned Decision, page 5.
4. Ibid.
5. General Ojdanic’s Request for Certification to Appeal Decision on Motion for Additional Funds, 11 July 2003.
6. Decision on Defence Request for Certification of Appeal against the Decision of the Trial Chamber on Motion for Additional Funds, 16 July 2003.
7. Ex Parte General Ojdanic’s Appeal of Decision on Motion for Additional Funds, 23 July 2003.
8. Rule 74 (Amicus Curiae) A Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to appear before it and make submissions on any issue specified by the Chamber.
9. Para. 19.
10. Blagojevic, IT-02-60-AR73.4, Ex Parte and Confidential Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team, 7 November 2003, para. 7.
11. Para. 19.
12. Para. 20.
13. Ibid. Pursuant to Article 32 of the Directive, the Advisory Panel consists of two members chosen by the President of the Tribunal by ballot from members of the ADC-ICTY who have appeared before the Tribunal, two members proposed by the International Bar Association, two members proposed by the Union Internationale des Avocats, and the President of the Nederlandse Orde van Advokaten or his representative. Each member of the Advisory Panel must have a minimum of 10 years legal experience. The President of the Advisory Panel will be the President of the Nederlandse Orde van Advokaten or his representative. The membership of the Advisory Panel shall come up for appointment every two years on the anniversary date of the entry into force of this Directive.
14. Para. 21
15. Ibid.
16. Para. 22. The Appeals Chamber referred to Article 9(C) of the Code of Professional Conduct for Counsel Appearing Before the International Tribunal, IT/125 REV. 1, as amended on 12 July 2002, which states: “Subject to leave from the Chamber, if representation by counsel is to be terminated or withdrawn, counsel shall not do so until a replacement counsel is engaged by the client or assigned by the Registrar, or the client has notified the Registrar in writing of his intention to conduct his own defence”.
17. Para. 22.
18. Para. 23, Kayishema and Ruzindana, ICTR-95-1-A, Judgement, 1 June 2001, para. 69
19. Ibid..
20. Ibid.
21. Ibid., by reference to Tadic, IT-94-1-A, Judgement, 15 July 1999, para. 48.
22. Article 22 of the Directive (Responsibility for remuneration and expenses) states in relevant part: “ A. (…) The Registrar establishes maximum allotments for each defence at the beginning of every stage of the procedure taking into account his estimate of the duration of the phase” (emphasis added).
23. Impugned Decision, p. 3 citing the “Registry Comments on Defence Motion for Additional Funds”, filed 13 June 2003, paras. 4-5.
24. Para. 25.
25. See Registry Comments on Defence Motion for Additional Funds, 13 June 2003, paras. 4-5.
26. Para. 25
27. It reads: “In the event of disagreement on the maximum allotment, the Registrar shall make a decision, after consulting the Chamber and, if necessary, the Advisory Panel”.
28. Judge Hunt analysed the following decisions: Delalic et al, IT-96-21-A, Order on Esad Landzo’s Motion for Expedited Consideration, 15 September 1999; Hadzihasanovic et al, IT-01-47-PT, Decision on Prosecution’s Motion for Review of the Decision of the Registrar to Assign Mr Rodney Dixon as Co-Counsel to the Accused Kubura, 16 Mar 2002; Halilovic, IT-01-48-PT, Decision on Sefer Halilovic’s Application to Review the Registrar’s Decision of 19 June 2002, 1 August 2002; Martic, IT-95-11-PT, Decision on Appeal Against Decision of Registry, 2 August 2002, Judicial Supplement No. 35; Knezevic, IT-95-4&8/1-PT, Decision on Accused’s Request for Review of Registrar’s Decision as to Assignment of Counsel, 6 September 2002, Judicial Supplement No. 36; Zigic, 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; Hadzihasanovic & Kubura, IT-01-47-PT, Decision on Urgent Motion for Ex Parte Oral Hearing on Allocation of Resources to the Defence and Consequences Thereof for the Rights of the Accused to a Fair Trial, 17 June 2003.
29. Jugde Hunt reasoned by analogy to the procedure whereby the Bureau has to be consulted when the decision of a Presiding Judge on the disqualification of a Judge is contested by the moving party (Galic, IT-98-29-AR54, 13 March 2003, Decision on Appeal from Refusal of Application for Disqualification and Withdrawal of a Judge, Judicial Supplement No. 40.