Case No. IT-04-83-PT

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Hans Holthuis

Decision:
10 May 2005

PROSECUTOR

v.

RASIM DELIC

__________________________________________

DECISION ON MOTION SEEKING REVIEW OF THE REGISTRY DECISION STATING THAT MR. STÉPHANE BOURGON CANNOT BE ASSIGNED TO REPRESENT RASIM DELIC

__________________________________________

The Office of the Prosecutor:

Mr. Daryl Mundis
Ms. Tecla Henry-Benjamin
Ms. Marie Tuma

Counsel for the Accused:

Mr. Stéphane Bourgon

 

THIS 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 ("International Tribunal"),

BEING SEISED OF a confidential and partially ex parte "Motion seeking review of the Registry Decision stating that Mr. Stéphane Bourgon cannot be assigned to represent Rasim Delic pursuant to Article 16(E) of the Directive on Assignment of Defence Counsel and Request for stay of the Decision of the Registry inviting the Accused to select new counsel no later than 27 April 2005" filed by Rasim Delic (“Accused”) on 26 April 2005 ("Motion"), whereby the Accused seeks (1) review of the Registry’s Decision refusing to appoint Mr. Stéphane Bourgon as Counsel to represent him, (2) a stay of the decision of the Registrar inviting the Accused to select new counsel no later that 27 April 2005, and (3) a ruling that Mr. Bourgon can be assigned to represent the Accused,

NOTING the "Prosecution Response Concerning Motion Seeking Review of Registry Decision on Assignment of Counsel" filed by the Office of the Prosecutor ("Prosecution") on 5 May 2005 ("Prosecution Response") in which it submits that, in light of the overlap between the Hadžihasanovic case and the Delic case as well as the nature of the responsibility alleged, the Registry determination that the requirements of Article 16(E) of the Directive are not met is correct and the Motion should be dismissed,

NOTING that, on 22 April 2005, this Trial Chamber dismissed a request by the Accused seeking review of a Registry’s decision refusing to assign his first preferred lawyer, Mr. Asim Crnalic, as Lead Counsel to represent him, finding that the power of review in that case was specifically conferred upon the President by the Rules, the Accused subsequently filed a motion before the President for appropriate relief,

NOTING that, on 5 April 2005, the Registry informed the Accused that his second preferred lawyer, Mr. Stéphane Bourgon, attorney at law from Canada (already assigned to a case before the Tribunal) cannot be assigned as counsel to him since the Registry was not satisfied that the requirements of Article 16(E) of the Directive on Assignment of Defence Counsel ("the Directive") had been met and that Mr. Bourgon’s dual representation is justified ("Impugned Decision"), and, on 18 April 2005, the Registry invited the Accused to select, no later than 27 April 2005, new counsel from the Tribunal’s list of counsel,

CONSIDERING that, while the primary responsibility for assigning counsel rests with the Registrar, and that "it is not ordinarily appropriate for a Chamber to consider motions on matters that are within the primary competence of the Registrar",1 the Appeals Chamber has held that, where the fairness of the trial is at stake, the issue of qualification, appointment and assignment of counsel, is open to judicial scrutiny,2

CONSIDERING that the right to choose counsel which is recognised by Article 21(4)(b) and (d) of the Statute is not without limits, and the choice of any accused regarding his Defence counsel in proceedings before the Tribunal should be respected unless there are sufficient grounds to override the accused’s preference in the interests of justice,3 one of the limits to the accused’s choice is a conflict of interest affecting his counsel,4

NOTING that, in support of his request, the Accused argues that "while the Registry did not err in identifying the existence of a prima facie conflict of interests between Rasim Delic and Enver Hadzihasanovic, if failed to appreciate the particular circumstances of this case which would allow Mr. Bourgon’d [sic] dual representation pursuant to Article 16(E) of the Directive",

CONSIDERING that counsel may not represent a client when this representation affects or can affect the representation of another client, Article 14 ("Conflict of Interest") of the Code of Professional Conduct for Counsel Appearing Before the International Tribunal ("the Code of Conduct") provides in paragraphs (C)-(E):

  1. Counsel shall not represent a client in connection with a matter in which counsel participated personally and substantially as an official or staff member of the Tribunal or in any other capacity, unless the Registrar determines, after consultation with the parties and taking account the views of the Chamber, that there is no real possibility shown that a conflict between the former and present assignment exists.
  2. Counsel or his firm shall not represent a client with respect to a matter if:
    1. such representation will be, or may reasonably be expected to be, adversely affected by representation of another client;
    2. representation of another client will be, or may reasonably be expected to be, adversely affected by such representation;
    3. the matter is the same or substantially related to another matter in which counsel or his firm had formerly represented another client ("former client"), and the interests of the client are materially adverse to the interests of the former client; or
    4. counsel’s professional judgement on behalf of the client will be, or may reasonably be expected to be, adversely affected by:
      1. counsel’s responsibilities to, or interests in, a third party; or
      2. to counsel’s own financial, business, property or personal interests.
  1. Where a conflict of interest does arise, counsel shall:
    1. promptly and fully inform each potentially affected present and former client of the nature and extent of the conflict; and
    2. either:
      1. take all steps necessary to remove the conflict; or
      2. obtain the full and informed consent of all potentially affected present and former clients to continue the representation unless such consent is likely to irreversibly prejudice the administration of justice.

CONSIDERING that Article 16(E) of the Directive on Assignment of Defence Counsel ("Directive") does not prevent the assignment of the same counsel to more than one accused at a time, provided that such assignment would cause neither prejudice to the defence of either accused, nor a potential conflict of interest,5

CONSIDERING that a conflict of interests between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice,6

NOTING that Rasim Delic and Enver Hadzihasanovic are both charged pursuant to Article 7(3) of the Statute in relation to events which allegedly took place in Maline/Bikosi, Bosnia and Herzegovina, in June 1993; it is alleged that, at the relevant time, as the Commander of the ABiH 3rd Corps unit, Hadzihasanovic was a direct subordinate of Rasim Delic, Commander of the Main Staff,

NOTING that the Registry considered that, irrespective of the position of the Accused at this stage, there is a real possibility that Delic’s defence to the Maline/Bikosi charges may become opposed to that of Hadzihasanovic, in such a scenario, the Registry determined that Mr. Bourgon would be placed in a conflict of interest situation which would require him to withdraw from one or both cases,

CONSIDERING that the Trial Chamber is satisfied that the Registry’s determination that a conflict of interests might arise in this case is a reasonable conclusion on the basis of the material before it - both accused are charged with the same criminal acts (Maline/Bikosi charges) and are linked by a relatively close superior-subordinate relationship at the relevant time -,7 indeed, the Accused has not disputed the Registry’s conclusion that a conflict of interests is a possibility in this case,

CONSIDERING that, while the Motion was filed confidentially, there is no reason provided to justify a confidential status,

PURSUANT TO Rule 54 of the Rules of Procedure and Evidence of the International Tribunal,

HEREBY DISMISSES the Motion.

 

___________________________
Judge Patrick Robinson
Presiding

Dated this tenth day of May 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Prosecutor v. Delalic et al., "Order on Esad Landzo’s Motion for Expedited Consideration", Case No. IT-96-21-A, 15 September 1999, cited by the Appeals Chamber in Prosecutor v. Blagojevic, "Public and Redacted Version for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team”, Case No. IT-02-60-AR73.4, 7 November 2004.
2. Prosecutor v. Blagojevic, “Public and Redacted Version for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team”, Case No. IT-02-60-AR73.4, 7 November 2004, para. 7; Prosecutor v. Prlic et al., “Decision on Appeal by Bruno Stojic against Trial Chamber’s Decision on Request for Appointment of Counsel”, Case No. IT-04-74-AR 73-1, 24 November 2004 (Prlic Appeal Decision), para. 21.
3. Prlic Appeal Decision, para. 19.
4. Prosecutor v. Mejakic et al., “Decision on Appeal by the Prosecution to Resolve a Conflict of Interest Regarding Attorney Jovan Simic” Case No. IT-02-65-AR73.1, 6 October 2004, para. 8.
5. Article 16 (E) of the Directive provides: "No counsel shall be assigned to more than one suspect or accused at a time, unless: (i) Each accused has received independent legal advice from the Registrar and both have consented in writing; (ii) The assignment would neither cause prejudice to the defence of either accused, nor a potential conflict of interest."
6. Prosecutor v. Simic et al., “Decision on the Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarevic”, Case No. IT-95-9-PT, 25 March 1999, p. 6 cited by the Appeals Chamber in Prlic Appeal Decision, para. 22.
7. Prlic Appeal Decision, para. 24.