Case No. IT-02-60-PT


Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Maria Argibay

Mr. Hans Holthuis

Decision of:
9 May 2003







The Office of the Prosecutor:

Mr. Peter McCloskey

Counsel for the Accused:

Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. David Wilson and Mr. Dusan Slijepcevic for Dragan Obrenovic
Mr. Miodrag Stojanovic and Ms. Cynthia Sinatra for Dragan Jokic
Mr. Veselin Londrovic and Mr. Stefan Kirsch for Momir Nikolic


TRIAL CHAMBER I, SECTION A, (“Trial Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”),

HAVING HEARD the accused Vidoje Blagojevic (“Accused”) on the issue of assignment of counsel at the Pre-Trial Conference held on 5 May 2003,

NOTING that Rule 45 of the Rules of Procedure and Evidence of the Tribunal (“Rules”) provides for the appointment of counsel by the Registrar for a suspect or accused who lacks the means to remunerate such counsel “whenever the interests of justice so demand”, pursuant to the Directive of Assignment of Defence Counsel, as amended on 12 July 2002 (“Directive”),

NOTING that Section III of the Directive, and specifically Article 11, provides for the assignment of counsel, and that, pursuant to Article 16(c) of the Directive, “?ign the interests of justice and at the request of the person assigned as counsel,” co-counsel may be assigned by the Registrar,

NOTING that in accordance with the Directive, the Registrar appointed Michael Karnavas as lead counsel for the Accused on 31 August 2001, and Suzana Tomanovic as co-counsel on 25 September 2002,

NOTING that Article 19 (A) of the Directive provides that, in the interests of justice, the Registrar may: (i) at the request of the accused or his counsel, withdraw the assignment of counsel; or (ii) at the request of lead counsel, withdraw the assignment of co-counsel,

NOTING that the Accused first raised complaints about the assignment of his co-counsel before Trial Chamber II at a Status Conference held on 27 November 2002,1 and that the issue was further addressed at a motion hearing held in closed session on 27 November 2002,2

NOTING the “Decision on Oral Motion to Replace Co-Counsel,” issued by Trial Chamber II on 9 December 2002 (“Decision to Replace Co-Counsel”), in which that Trial Chamber found that: (a) both lead counsel and co-counsel were assigned by the Registrar in conformity with the Rules of the Tribunal and the Directive;3 (b) it did not observe an atmosphere of mistrust between the lead counsel and co -counsel, but rather found there to be confidence expressed in co-counsel by lead counsel;4 (c) it cannot find that co -counsel is incompetent and acting in any way contrary to the best interests of her client;5 (d) it is not permissible for an accused to deliberately destroy the atmosphere of trust and to make unsubstantiated claims that no co-operation between himself and co-counsel is possible in order to have new co-counsel appointed;6 (e) the alleged problems between the Accused and the defence team were based on the desire of the Accused to have an unknown third person assigned as co-counsel, and not due to any misconduct, incompetence or any conflict of interest on the part of the co-counsel;7 (f) it cannot identify any ground which 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;8 and (g) no prejudice can be suffered by the Accused by maintaining Ms. Tomanovic as co-counsel, and that to replace co-counsel at this point in the proceedings may cause prejudice to the Accused by causing inter alia a delay in the proceedings and thereby infringe his right to be tried expeditiously,9

NOTING FURTHER that Trial Chamber II found that no good cause had been shown to intervene in the Registrar’s decision to appoint Ms. Tomanovic as co-counsel,10

NOTING that the Accused informed Trial Chamber II at the Status Conference held on 27 March 2003 that he had an issue that was “still pending” related to counsel,11 and that the issue of the assignment of counsel and co-counsel was further addressed at a hearing held in closed session on 27 March 2003 (“Hearing”),

NOTING that at the Hearing the Accused stated his request that his co-counsel be replaced,12 and that the Pre-Trial Judge of Trial Chamber II indicated that the transcript of the Hearing would be forwarded to Registrar “to find out whether a substitution should take place,”13

CONSIDERING that at the Hearing, the Accused answered affirmatively when asked if he did not have trust in his lead counsel based on the fact that the lead counsel did not elect co-counsel on a consensual basis together with him, stating “?igt would be correct should the situation as it is now continue,”14

CONSIDERING that at the Hearing, the Accused answered affirmatively when asked if he would request a replacement of his lead counsel if the Registrar would decide that there is no justification for the replacement of his co-counsel, stating “?tghe answer is yes. I do not hesitate at all,”15

NOTING that, pursuant to the comments of the Accused at the Hearing, the Pre-Trial Judge of Trial Chamber II affirmed his earlier finding that it is “for the Registrar to decide on the merits of this request” and that it was to “first decide on the replacement of Ms. Tomanovic, ?andg in case there is no such replacement, to decide on the replacement of the entire team,”16

NOTING the Decision of the Registrar of 8 April 2003 (“Registrar’s Decision ”), in which he refused to withdraw the assignment of Ms. Tomanovic as co-counsel and the Accused’s concomitant request to replace his entire legal defence team, finding that the Accused “has not shown any substantive grounds relating to the performance or professional ethics of Ms. Tomanovic justifying a replacement; that no change in circumstances has taken place since the Trial Chamber’s Decision ?on Replacement of Co-Counselg; 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,”

NOTING that Article 19 (F) of the Directive provides that, where a request for withdrawal, made pursuant to Article 19 (A), has been denied, the person making the request may seek the President of the Tribunal’s (“President”) review of the decision of the Registrar within two weeks from the notification of the decision to him,

NOTING that the translation of the Registrar’s Decision into the BCS language was completed on 10 April 2003, and that the Registrar’s Decision was received by the Accused on 10 April 2003,

NOTING that a representative of the Registry/Office of Legal Aid and Detention Matters (“OLAD”) met with Accused on 14 April 2003 and explained the Registrar’s Decision to him, including the decision that lead would not be withdrawn, and advised him of his right to seek the President’s review of the decision pursuant to Article 19 (F) of the Directive,

NOTING that no request was made to the President to review the Registrar’s Decision in accordance with Article 19 (F) of the Directive,

NOTING that the Appeals Chamber for the International Criminal Tribunal for Rwanda (“ICTR”) held that:

in principle, the right to free legal assistance of counsel does not confer the right to counsel of one’s own choosing. The right to choose counsel applies only to those accused who can financially bear the costs of counsel.17

The Appeals Chamber further found that:

[t]o be sure, in practice an indigent accused may choose from among counsel including [sic] in the list and the Registrar generally takes into consideration the choice of the accused. Nevertheless, in the opinion of the Appeals Chamber 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.18

NOTING that at the Pre-Trial Conference held on 5 May 2003, after the appearances of defence counsel, including that Mr. Karnavas and Ms. Tomanovic as lead counsel and co-counsel, respectively, for Mr. Blagojevic, the Accused stated that he “did not have a lawyer present here today who would represent [him] as [his] defence counsel,” that the person who introduced himself as the Accused’s lawyer, namely Mr. Karnavas, “has actually been dismissed by [the Accused] and is no longer [his] defence counsel,” and that he therefore asked the Trial Chamber, “as a guarantor and the protector of the rights of the accused” to protect him “in this sense,”19

NOTING that the Accused stated that he “absolutely [has] no longer any confidence in Mr. Karnavas and it would be a catastrophe for him to continue to represent ? the Accusedg in this case,” stating that he did not have any trust in Mr. Karnavas “due to his actions to date,”20

NOTING that the Accused stated that he could provide the “arguments” for the loss of trust, but did not provide any concrete or specific reasons for this loss of confidence or specific actions on the part of Mr. Karnavas that caused the lack of trust,21

NOTING that the Accused has stated that he does not seek to represent himself,22

CONSIDERING that the Accused stated that he has not had any communication with Mr. Karnavas “for more than a month,” 23, that he does not permit Mr. Karnavas to be involved in the case24 and that he “absolutely refuse[s] any further involvement of [his present defence team],”25

CONSIDERING that the issue of whether the Accused has access to filings in this case at this stage is unclear based on his comments at the Pre-Trial Conference,26

NOTING the comments of the Office of the Prosecutor (“Prosecution”) on this issue at the Pre-Trial Conference, and specifically the Prosecution’s concern of a possible conflict of interest between the Accused and his defence counsel on the issue of appealing a decision related to the assignment of counsel,27

NOTING the comments of Mr. Karnavas at the Pre-Trial Conference, in which he stated that he and his co-counsel are prepared for trial, and that he and co- counsel were both prepared to follow any directions from the Trial Chamber including the direction to withdraw from the case,28

CONSIDERING that under the Code of Professional Conduct for Counsel Appearing before the International Tribunal (“Code of Conduct”),29 Article 3 (“Basic Principles”), paragraph (iv) provides that “counsel have a duty of loyalty to their clients consistent with their duty to the Tribunal to act with independence in the administration of justice,”

CONSIDERING that Article 8 of the Code of Conduct provides:

Scope of Representation

(A) Counsel shall advise and represent a client until counsel’s representation is terminated by the client or withdrawn by the Registrar.

(B) When representing a client, counsel shall:

i. Abide by the client’s decisions concerning the objectives of representation;

ii. Consult with the client about the means by which those objectives are to be pursued, but is not bound by the client’s decision; and

iii. Seek or accept only those instructions which emanate from the client and which are not given as the result of inducement from any person, organisation or State.

(C) Counsel shall not advise or assist a client to engage in conduct which counsel knows is criminal or fraudulent, in breach of the Statute, the Rules, this Code or any other applicable law and, where counsel has been assigned to the client, the Directive. However, counsel may discuss legal consequences of any proposed course of conduct with a client and may advise or assist a client in good faith to determine the validity, scope or meaning of the applicable law.

CONSIDERING that Article 9 (“Declining, Terminating or Withdrawing Representation ”) provides, in part:


(B) 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.


CONSIDERING that the basis for action in this matter by a Trial Chamber rests with its inherent power and duty to guarantee a fair trial and the proper administration of justice, as set forth in Articles 20 and 21 of the Statute of the Tribunal,30

CONSIDERING that the Trial Chamber deems that the issue of assignment or replacement of counsel, when raised as a matter of procedural fairness and proper administration of justice, is open to judicial scrutiny; difficulties relating to the defence of an accused will affect the conduct of a case over which a Trial Chamber has not only the power but also the duty to regulate in accordance with the statutory requirements for a fair and expeditious trial; and that these problems, therefore, are justiciable,

CONSIDERING that the Trial Chamber, as Trial Chamber II has done in this case, wishes to emphasise that although it considers that it is vested with the power to review a decision of this type in the interests of justice, it is not obliged to intervene in every complaint regarding the assignment of counsel. It recognises that the Registrar has the primary responsibility in this matter and that, if the Registrar was not properly informed of necessary facts, he would be entitled to reconsider his previous decision on the basis of new information hitherto unavailable to him,

CONSIDERING that the Trial Chamber is responding to the comments made by the Accused at the Pre-Trial Conference, and particularly, the fact that there appears to be a breakdown in communication between the Accused and his defence team based on a lack of trust – for unspecified reasons – on the part of the Accused,

CONSIDERING that such a breakdown in communication, if it in fact exists and continues to exist, may impact the rights of the accused, and particularly the right to prepare ones defence,31

CONSIDERING that at the Pre-Trial Conference, the Trial Chamber indicated that it may be necessary to appoint independent counsel to consult with the Accused on the specific matter of the assignment of counsel and the Accused’s rights in relation to this matter under the Statute, Rules and Directive, and to advise him on further action, if any, that the Accused may take on this matter,32

CONSIDERING FURTHER that at the Pre-Trial Conference, the Trial Chamber indicated that, pursuant to the Registrar’s Decision, the present defence team will continue to work on behalf of the Accused,33

PURSUANT to Articles 20 and 21 of the Statute of the Tribunal, and Rule 54 of the Rules of the Tribunal,

HEREBY REQUESTS that the Registrar appoint independent counsel to advise the Accused, Mr. Vidoje Blagojevic, on his rights in relation to the assignment of counsel, and assist him in preparing documentation, if any, that may follow from their consultations on this issue.


Done in English and French, the English version being authoritative.

Judge Liu Daqun

Dated this ninth day of May 2003,
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - Status Conference, 27 November 2002, Transcript page (“T.”) 46.
2 - Motion Hearing, 27 November 2002, T. 107. (closed session).
3 - Decision to Replace Co-Counsel, p. 4.
4 - Id.
5 - Id., p. 5.
6 - Id.
7 - Id.
8 - Decision to Replace Co-Counsel, p. 6.
9 - Id.
10 - Id.
11 - Status Conference, 27 March 2003, T. 125-26.
12 - Hearing, 27 March 2003, T. 160-62; 167 (closed session).
13 - Id., T. 165 (closed session).
14 - Id., T. 167 (closed session).
15 - Id. T. 172. (closed session).
16 - Id. T. 172-73. (closed session).
17 - Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (“Akayesu Appeal Judgement”), para. 61. The Appeals Chamber further cited the Appeals Judgement in Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-A, 19 October 2000, para. 33: “The Appeals Chamber […] concludes, in the light of a textual and systematic interpretation of the provisions of the Statute and Rules, read in conjunction with relevant decisions from the Human Rights Committee and the organs of the European Convention for the Protection of Human Rights and Fundamental Freedoms, that the right to free legal assistance by counsel does not confer the right to choose one’s counsel.”
18 - Akayesu Appeal Judgement, para. 62. Emphasis added.
19 - Pre-Trial Conference, 5 May 2003, T. 204.
20 - Id. T. 205. See also, T.256-58: …“he [Mr. Karnavas] has betrayed my confidence fully. He has let me down completely and showed that we cannot succeed and he has done that in a very unusual way.”
21 - Id. T. 205-06.
22 - Id., T. 258.
23 - Pre-Trial Conference, 5 May 2003, T. 256.
24 - Id. T. 260.
25 - Id. T.261.
26 - Id. T. 256: “All that is being said here about the – about documents, about the evidence, and it is very important that I have a look at it and read it, and therefore to look at it from my point of view and determine my position towards all that, all that has been blocked. I am completely unaware that it exists and therefore what purpose does it serve?”
27 - Id., T. 254.
28 - Id., T. 255.
29 - IT/125 Rev.1, as amended on 12 July 2002.
30 - See, e.g., Decision to Replace Co-Counsel, p. 3; Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, Case No. IT-96-21-A, Order on Esad Landzo’s Motion for Expedited Consideration, 15 September 1999; Prosecutor v. Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, Case No. 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, 26 March 2002.
31 - See, e.g., Article 21(b). See also, Code of Conduct, Article 12 (“Communication”): 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.”
32 - Pre-Trial Conference, 5 May 2003, T. 261.
33 - Id. T. 261.