The Prosecutor v. Vidoje Blagojevic - Case No. IT-02-60-AR73.4

“Public and Redacted Version for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team”

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

Procedural Background

· At the 27 November 2002 Status Conference, Vidoje Blagojevic (“Accused”) informed the pre-trial Judge of some problems with his Defence. At the ex parte and closed-session hearing held the same day, he explained that his complaint concerned the assignment of co-counsel (Ms. Tomanovic) who, he argued, had not been appointed pursuant to his suggestion and with his consent.

· On 9 December 2002, Trial Chamber II denied the Accused’s motion to have his co-counsel replaced since no good cause had been shown requiring it to intervene in the Registrar’s decision.¹ 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 hearing was held. The pre-trial Judge stated that, were the Registrar to issue a disputed decision, it would be for the Trial Chamber, based on its inherent powers to intervene in exceptional cases, to decide whether or not it had to make a ruling.

· On 8 April 2003, the Registrar issued a decision (“Registrar’s Decision”) in which he refused to replace co-counsel or lead counsel (Mr. Karnavas). 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 Defence team would continue working with him.

· On 23 May 2003, in keeping with an Order of the Trial Chamber of 9 May 2003², 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 Independent Counsel, the Accused asked for assigned counsel to be withdrawn and a new legal team 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 counsel and co-counsel.³ On 11 June 2003, the Registrar filed a confidential and ex parte response to the May Hearing and the Motion.⁴ On 12 June 2003, the Prosecution filed its response on a confidential and ex parte basis.⁵ On 16 June 2003, Counsel⁶ filed their Response to the Motion on a confidential and ex parte basis (“Counsel’s Response”).⁷ Following the filing of Counsel’s Response, the Trial Chamber ordered Independent Counsel to file any reply by 27 June 2003.⁸ It denied Independent Counsel’s request to file a reply on 18 August 2003.

· On 3 July 2003, Trial Chamber I denied the Accused’s Motion and ordered that the Registrar appoint the Accused a legal representative to assist him and his defence team in the preparation of his defence (“Impugned Decision”).⁹

· On 25 July 2003, following an application by the Accused, the Trial Chamber granted him certification to appeal the Impugned Decision.¹⁰ On 1 August 2003, Vidoje Blagojevic (“Appellant”) filed his Appeal Brief.¹¹

Decision

The Appeals Chamber dismissed the Appeal on 15 September 2003. Reasons for the Decision were given on 7 November 2003. The following is a summary of the public and redacted version of the decision which was filed on 15 December 2003.

Reasoning

Applicable law

Article 19 of the Directive of Assignment on Defence Counsel (IT/73, Rev. 9) governs requests for withdrawal of assigned counsel. It reads in relevant parts:

Article 19 (“Suspension and Withdrawal of Counsel”)
(A) 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.

[…]

(F) Where a request for withdrawal, made pursuant to paragraph A, has been denied the person making the request may seek the President’s review of the decision of the Registrar within two weeks from the notification of the decision to him.

Article 19(F) therefore provides that it is for the President to review a refusal to withdraw a counsel or assigned counsel. As noted by the Appeals Chamber, the Directive “does not provide for review of a refusal to be made by a Trial Chamber”.¹²

Impugned Decision

The Trial Chamber recognised that the Registrar has primary responsibility in the matter of assignment of counsel but based itself on previous decisions in which it had been held that a 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 decisions of the Registrar on assignment of counsel.¹³ It determined that the Appellant’s request did not involve merely a consideration of “the appointment of counsel from an administrative perspective, but extend[ed] to the substantive nature of the representation by Counsel, and the proper fulfilment of obligations of legal representation towards the Accused by Counsel”.¹⁴ It viewed the Motion as “one implicating a substantive right of the Accused, namely, the right to a fair and expeditious trial”¹⁵ and therefore ruled that it had the power to review the Registrar’s Decision of 8 April 2003.

Review of Registrar’s Decision on Withdrawal of Counsel

The Appeals Chamber stated in clear terms that the only inherent power that a Trial Chamber has is to ensure that the trial of an accused is fair and that a Trial Chamber cannot appropriate for itself a power which is conferred elsewhere. It held:

“[…] the only option open to a Trial Chamber, where the Registrar has refused the assignment of new Counsel, and an accused appeals to it, is to stay the trial until the President has reviewed the decision of the Registrar”.¹⁶

The Appeals Chamber considered that “it is only by adopting this approach that the Trial Chamber properly respects the power specifically conferred upon the Registrar and the President by the Directive to determine whether an accused’s request for the withdrawal of Counsel should be granted in the interests of justice”.¹⁷

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1. Decision on Oral Motion to Replace Co-Counsel, 9 December 2002 (“Trial Chamber Decision”).
2. Order on the Appointment of Independent Legal Counsel, 9 May 2003.
3. 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.
4. Motion of the Registrar (“Registrar’s Response”). The Trial Chamber lifted the ex parte nature of the Registrar’s Response on 12 June 2003.
5. 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.
6. The Trial Chamber referred to Michael Karnavas as “lead counsel”, to Suzana Tomanovic as “co-counsel” and to both of them together as “Counsel”.
7. Counsel’s and Co-Counsel’s Response to the Motion by Independent Counsel, 16 June 2003.
8. In the same Order, the Trial Chamber lifted the ex parte nature of Counsel’s Response.
9. Blagojevic & Jokic, 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. For a summary of this Decision and a detailed account of the role and the terms of the assignment of the legal representative, see Judicial Supplement No. 43.
10. Decision on Vidoje Blagojevic’s Request for Certification, 25 July 2003.
11. Appeal Brief After Certification by the Trial Chamber Ex Rule 73 to Lodge an Appeal Against its Decision of 3 July 2003 in which it was Denied the Motion to Instruct the Registrar to Appoint new Lead and Co-counsel for Vidoje Blagojevic, 1 August 2003 (“Appeal Brief”).
12. Para. 6.
13. See Blagojevic, IT-02-60-PT, Decision on Oral Motion to Replace Co-Counsel, 9 December 2002, Judicial Supplement No. 38. 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.
14. Impugned Decision, para. 27.
15. Ibid.
16. Para. 7.
17. Ibid.