Case No.: IT-04-83-PT

Before:
Judge Theodor Meron, President

Registrar:
Mr Hans Holthuis

Order:
8 June 2005

The Office of the Prosecutor:

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

Counsel for the Defence:

Mr. Stephane Bourgon

1. Rasim Delic (“Delic”) has filed before me a motion seeking review of the Registrar’s decision refusing the assignment of his counsel of choice, Mr Asim Crnalic.¹ In his Decision refusing the assignment², the Registrar stated two reasons for that refusal: (1) Mr Crnalic does not speak one of the working languages of the Tribunal; (2) Mr Crnalic is not a member of the Association of Defence Counsel practicising before the Tribunal. In filing this motion, Delic requests that I review the decision of the Registrar and issue an order addressed to the Registrar to assign Mr Crnalic as Lead Counsel.³

2. In his Motion, Delic states that following the Registrar’s Decision Mr Crnalic has been admitted as an Associate Member of the ADC, eligible to become a member if the Registry grants a waiver of the language requirement pursuant to Rule 45( B) of the Rules of Evidence and Procedure (“Rules”). On this basis, the Accused says that only the first prong of the Decision of the Registrar needs to be considered.⁴

3. Following receipt of Delic’s Motion for review, on 5 May 2005, I issued an order inviting the Registrar to respond to the Motion. On 13 May 2005, the Registry filed its response.⁵ In that Response the Registry challenges my jurisdiction to judicially review the decision of the Registrar. It says that Rule 44 does not confer specific authority on the President to review a decision of the Registry such as that on Crnalic. It argues that while the Appeals Chamber held in Blagojevic that Rule 45, which incorporates provisions of Rule 44, could be read in such a way as to confer such power of review upon the President, those Rules and the relevant provisions where amended on 28 July 2004. The Registry claims that these amendments, read together, remove the provisions relied upon by the Appeals Chamber in Blagojevic as establishing the authority of the President to review decisions of the Registry not to assign a particular counsel based on his inability to speak a working language of the Tribunal.⁶

4. The Registry claims further that while it agrees that the Rules should normally be interpreted to accommodate an avenue for judicial review, “the President need only entertain a motion requesting judicial review of the non-discretionary provisions of the Directive if that motion raises a real question of fact or law which needs or ought to be tried by a judicial body.”⁷ It says that the subject of Delic’s motion “has been settled in law through its codification in the Tribunal’s legislation”⁸ and that the Accused’s Motion should be dismissed as a frivolous motion pursuant to Rule 73 (D).⁹

5. In Reply, Delic says that the Registry’s submissions are ill-advised and that it was improper for the Registry to label his Motion frivolous. He says that he expected the Registry to make substantive arguments explaining why counsel of his choice cannot effectively represent him before the Tribunal.¹⁰ Delic then makes substantive arguments focusing upon three identified issues: (1 ) what authority or judicial body within the International Tribunal has the competence to adjudicate on the Motion; (2) the rationale for seeking a review of the Decision of the Registrar and the appropriate remedy; and (3) the reasons why the Defence Motion is not frivolous.¹¹ In his Reply, Delic raises many new issues which go beyond the proper scope of a reply.¹² Those new issues raised for the first time in the Reply will not be addressed in this decision.

6. I do not consider it necessary to address the various arguments made by the parties concerning the justiciability of a review of the Registrar’s decision or who is the appropriate authority to conduct such a review in this circumstance. For present purposes it suffices to say that any administrative decision that impinges upon the rights of an accused at this Tribunal must be subject to a process of judicial review, even where the Registrar is of the view that he has acted in full compliance with the Rules and relevant Practice Directions, and that the Rules and Practice Direction should be read accordingly. That is, even where the Registrar claims that he has acted in strict compliance with the law of this Tribunal, an accused still has a right to ensure that the Registrar’s claim to have acted in compliance is correct.

7. In this case, Delic first sought redress from the Trial Chamber on the basis that the Registrar’s Decision was a refusal to assign Mr Crnalic as counsel, giving a right of redress to Delic before the Trial Chamber pursuant to Article 13(B) of the Directive on the Assignment of Defence Counsel (“Directive”). ¹³ The Trial Chamber interpreted the Registrar’s Decision as a refusal to admit Mr Crnalic to the Rule 45 list of counsel. The Chamber subsequently declined to decide the Motion on the merits, believing that the power of judicial review of the Registrar’s Decision was explicitly conferred upon the President.¹⁴

8. The initial request made by Delic was to have Mr Crnalic assigned as his lead counsel. In making that request Delic made specific reference to Rule 44(B) and Article 14(A) of the Directive because, in order for Mr Crnalic to be eligible for any such assignment as counsel, it is necessary for the Registrar to have been satisfied that he met the requirements of Rule 44 of the Rules in order for him to be admitted on the list of counsel pursuant to Rule 45. Here, the Registrar was not so satisfied. His refusal to assign Mr Crnalic was made on the ground that he failed to satisfy the requirements of Rule 44 making him ineligible for inclusion on the Rule 45 list of counsel. In particular, this determination is based on the failure to satisfy the requirement of Rule 44(A) (ii) which permits counsel to be considered qualified to represent an accused if he or she:

“has written and oral proficiency in one of the two working languages of the Tribunal, unless the Registrar deems it in the interests of justice to waive this requirement, as provided for in paragraph (B)”

Rule 44(B) gives the Registrar discretion in deciding whether or not to waive the language requirement. However, the Rule also provides the President the power to review such decisions when a request is made by the Accused. Accordingly, I do have the power to review the Registrar’s Decision pursuant to that provision which is an applicable provision in this case.

8. The fact that Mr Crnalic does not speak one of the two working languages is not challenged by Delic under Rule 44, but the decision of the Registrar not to appoint him on that basis is. Delic argues that regardless of his failure to satisfy the language requirements, Crnalic should nonetheless be appointed counsel in the interest of safeguarding the Accused right’s of defending himself through the legal assistance of his own choosing pursuant to Article 21 (4) (d) of the Statute.

9. In reaching his decision not to appoint Mr Crnalic as lead counsel to Delic the Registrar was guided by the Rules of Procedure and Evidence and the Directive. Rule 44 and Article 14 of the Directive sets out the pre-requisites for the assignment as Counsel. Article 14(A) provides that:

Any person may be assigned as counsel to an accused 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:

(ii) he has written and oral proficiency in one of the two working languages of the Tribunal.

10. Since Mr Crnalic does not have proficiency in one of the two working language of the Tribunal, he was not eligible to be admitted to the list of counsel pursuant to Rule 45 (B) of the Rules. However, Rule 44(B) and Article 14(C) of the Directive permit the Registrar to waive the language requirement. Rule 44(B) provides that :

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, including the requirement that the counsel or accused undertake to meet all translations and interpretation costs not usually met by the Tribunal, and counsel undertakes not to request any extensions of time as a result of the fact that he does not speak one of the working languages. A suspect or accused may seek the President’s review of the Registrar’s decision.

Article 14 (C) of the Directive provides:

A person who does not have written and oral proficiency in either of the two working languages of the Tribunal but who speaks a language spoken in the territory over which the Tribunal has jurisdiction, and who fulfils all other requirements set out in Article 14(A), may be admitted to the list envisaged in Rule 45(B) of the Rules, if the Registrar deems it justified. Such person can only be assigned as co-counsel in accordance with Article 16(C).

11. As this provision makes clear, if the Registrar deems it justified to waive the language requirement for a particular counsel, that counsel cannot be assigned as lead counsel to an accused but may only be assigned as co-counsel “in the interests of justice and at the request of the person assigned as counsel” in accordance with Article 16(C). This is not the case here. Here Mr Crnalic, who is not proficient in one of the two working languages of the Tribunal, is seeking an appointment as lead counsel to Delic.

12. In light of these provision, it is clear that the decision of the Registrar not to assign Mr Crnalic as lead counsel was the only decision that the Registrar could make. There is no basis in the Rules or Directive for the Registrar to have made that appointment.

13. Despite the extensive submissions made by Delic on his right to have counsel of his choosing, the jurisprudence of this Tribunal has long established that such a right is not absolute. The Appeal Chamber in the Blagovejic case held that a right to choose one’s council is not unconditional. The decision stated that, “the Registrar may take account of an accused’s preferences, as he did in the appointment of lead counsel in this case, but it is within the Registrar’s discretion to override that preference if it considers that it is in the interest of justice to do so.”¹⁵ While this Tribunal recognizes the importance of providing the Accused with counsel of his choosing, the Court must also consider justice, fairness and consistency among all cases. Delic’s right to choose counsel is certainly not one that can override the basic rules developed to ensure that counsel assigned to represent accused at this Tribunal have the essential qualifications to do so. The fact that prior to the amendment of the Directive in July 2004 it was possible to assign counsel who does not speak one of the working languages of the Tribunal as lead counsel is inapposite.

14. From the submissions of the Registry it is clear that the barriers to the assignment of Mr Crnalic as lead counsel to Delic were made clear to both of them and that the Registry allowed Mr Crnalic to present arguments in favour of his assignment despite the fact that there was no legal basis for the Registry to effect that assignment.¹⁶ However, while the limitations on the power of the Registry to make the appointment should have been clear to Delic, I would not go so far as to label the Delic Motion frivolous.

15. On the basis of the foregoing the Decision of the Registrar is upheld.

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

Done this 8th day of June 2005,
At The Hague
The Netherlands

______________________
Judge Theodor Meron
President

[Seal of the Tribunal]