Case No. IT-02-65-AR73.1

Before:
Judge Mehmet Güney, Presiding
Judge Mohamed Shahabuddeen
Judge Florence Mumba
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg de Roca

Registrar:
Mr. Hans Holthuis

Decision of:
6 October 2004

_______________________________________

The Office of the Prosecutor:

Mr. Norman Farrell
Ms. Ann Sutherland

Counsel for the Accused:

Mr. Jovan Simic for Zeljko Mejakic
Mr. Branko Lukic for Momcilo Gruban
Mr. Theodore Scudder and Mr. Dragan Ivetic for Dusan Fustar
Mrs. Slobodanka Nebic for Dusko Knezevic

1. The Appeals Chamber is seized of an appeal by the Prosecution from a Decision of the Mejakic Trial Chamber,¹ by which it rejected a motion alleging a conflict of interest regarding Defence counsel, Mr. Jovan Simic. Mr. Simic is currently assigned as lead counsel to the accused Zeljko Mejakic in the case Prosecutor v. Mejakic et al. and to the accused Dragoljub Prcac in the case Prosecutor v. Kvocka et al., currently pending appeal.²
   Background

2. In a motion filed on 18 August 2003, the Prosecution raised before the Trial Chamber the issue of a conflict of interest regarding Mr. Simic, assigned both to the accused Mejakic, and to the accused Prcac in the case Prosecutor v. Kvocka et al. In a decision of 18 September 2003, the Trial Chamber upheld the Registrar’s decision to appoint Mr. Simic as counsel for Mr. Mejakic (“First Decision”).³ The Trial Chamber considered that a conflict of interest may arise since, if Mr.  Prcac was called to testify in the Mejakic et al. case. In that case it would be difficult for Mr. Simic as counsel of both Mr. Prcac and Mr. Mejakic to reconcile his duty to protect the interests of each accused. However, the Trial Chamber found it not appropriate at that stage to make any determination, as there was no certainty that Mr. Prcac would testify in the Mejakic et al. case.

3. On 24 February 2004, the Prosecution filed a confidential “Second Motion to Resolve Conflict of Interest Regarding Attorney Jovan Simic”. It requested the Trial Chamber to “act now” and to request the Registrar to withdraw Mr. Simic’s assignment from one of the two cases. The Prosecution submitted that, due to the conflict of interest, it was unable to discuss with Mr. Prcac about his willingness to testify without the presence of Mr. Simic. In its Decision of 17 June 2004 (“Impugned Decision ”), the Trial Chamber denied the Prosecution’s second motion. The Trial Chamber considered that, although it had allowed the Prosecution to include Mr. Prcac in its witness list pursuant to Rule 65ter (E) (ii) of the Rules of Procedure and Evidence (“Rules”), it did not necessarily follow that Mr. Prcac would testify in the Mejakic et al. case. The Trial Chamber further pointed out that the Prosecution had no particular right to interview an accused in a specific case for the purpose of securing his testimony in another case and, therefore, the argument that the Prosecution was unable to discuss with Mr. Prcac without the presence of Mr. Simic was without merit.

4. On 6 July 2004, the Trial Chamber granted the “Prosecution’s Request for Certification ” pursuant to Rule 73(B) of the Rules.⁴ The Prosecution filed the “Prosecution’s Appeal Brief” before the Appeals Chamber on 13 July 2004 (“Appeal”), to which Mr. Simic responded confidentially,14 days later, on 27 July 2004.⁵
5. The Prosecution’s Reply⁶ was filed confidentially on 3 August 2004, six days after the filing of Mr. Simic’s Response. The Prosecution requested leave of the Appeals Chamber to file this Reply and submitted that the time limit of Part III, paragraph 9 of the Practice Direction on procedure for the filing of written submissions in appeal proceedings before the International Tribunal⁷ (“Practice Direction”) did not apply to the present appeal, as it applied only to appeals requiring a grant of leave by the Appeals Chamber, not to appeals certified by the Trial Chamber.
6. The Practice Direction provides that responses to interlocutory appeals are due ten days after the filing of the appeal, and replies four days after the filing of the response.⁸ The Appeals Chamber recalls the recent decision of the ICTR Appeals Chamber issued in the case Prosecutor v. Bizimungu et al.:

The Appeals Chamber notes, however, that the Practice Direction does not specifically provide a deadline for responses to appeals that follow certification of the Trial Chamber, although the Appeals Chamber has recently suggested that the response time of ten days should also apply to appeals following certification. The Appeals Chamber affirms this interpretation of the Practice Direction. ⁹

The decision makes clear that the Practice Direction does apply to certified appeals. The Appeals Chamber recognizes that this clarifying decision may not have come to the attention of the Parties. Considering, moreover, the minor nature of the delays, both Mr. Simic’s Response and the Prosecution’s Reply will be considered.

Discussion

7. The Registrar has the primary responsibility of determining matters relating to the assignment of counsel under the legal aid system. The Trial Chamber, however, considered that it had a statutory obligation to ensure a fair and expeditious conduct of the proceedings, and that from this obligation it derived the power to decide on the Prosecution’s motion alleging a conflict of interest.¹⁰ The approach of the Trial Chamber is consistent with the Appeals Chamber’s decision in the case Prosecutor v. Blagojevic of 7 November 2003.¹¹ In that decision, the Appeals Chamber confirmed that the Trial Chamber has an inherent power to ensure that the trial of an accused is fair. However, the Appeals Chamber warned that in exercising this power the Trial Chamber cannot appropriate for itself a power that is conferred elsewhere.¹² The Directive on Assignment of Defence Counsel¹³ does not provide any specific procedure for the removal of Defence Counsel in the case of a conflict of interest at the request of the Prosecution, and as such, the Trial Chamber could rely on its inherent power to review the assignment of Mr. Simic.

8. The right to choose counsel is a fundamental right of the accused and is recognized by Article 21(4) (b) and (d) of the Statute of the International Tribunal (“Statute ”). However, this right is not without limits. The Appeals Chamber has on several occasions stated that “the right to free legal assistance by counsel does not confer the right to counsel of one’s own choosing.”¹⁴ One of the limits to the accused’s choice is a conflict of interest affecting his counsel. Under Article 14 of the Code of Conduct,¹⁵ a counsel may not represent a client when this representation affects or can affect the representation of another client. Article 14 of the Code of Conduct provides, in relevant parts, as follows:

C. 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.

D. Counsel or his firm shall not represent a client with respect to a matter if:

i. such representation will be, or may reasonably be expected to be, adversely affected by representation of another client;

ii. representation of another client will be, or may reasonably be expected to be, adversely affected by such representation;

iii. 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

iv. 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

E. Where a conflict of interest does arise, counsel shall:

i. promptly and fully inform each potentially affected present and former client of the nature and extent of the conflict; and

ii. 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.

This requirement is reflected by Article 16 (E) of the Directive on Assignment of Defence Counsel:

E. No counsel shall be assigned to more than one suspect or accused at a time, unless an assignment to more than one suspect or accused would neither cause prejudice to the defence of either accused, nor a potential conflict of interest.

Mr. Simic had acknowledged a potential conflict of interest and, following the procedure laid out under Article 14 of the Code of Conduct, obtained the written consent of both Mr. Mejakic and Mr. Prcac to represent each of them.

9. The Trial Chamber found in the First Decision as well as in the Impugned Decision that a conflict of interest would arise were Mr. Prcac called to testify in the Mejakic et al. case. It considered, however, that, at the present stage of the proceedings, it was not certain that Mr. Prcac would testify in the Mejakic et al. case. The Trial Chamber was not satisfied that, in the present circumstances, the representation of Mr. Prcac and Mr. Mejakic was likely to affect the integrity of the proceedings or otherwise irreversibly prejudice the administration of justice.

10. The Prosecution submits that the Trial Chamber erred in law in concluding that the representation of Mr. Mejakic and Mr. Prcac by the same Defence Counsel was not likely to affect the integrity of the proceedings or otherwise irreversibly prejudice the administration of justice. The Prosecution further submits that the Trial Chamber’s reasoning, that the conflict will not cause the requisite degree of prejudice as it was not certain that Mr. Prcac would testify as a witness, is erroneous. In the view of the Prosecution, the conflict of interest exists now, not sometime in the future. The Prosecution points out that it could subpoena Mr. Prcac, so that he could be brought before the Trial Chamber also without his consent. Moreover, the Prosecution argues that it has the right to subpoena a prospective witness for an interview (not testimony) if that person is likely to give material evidence. The Prosecution therefore concludes that Mr. Prcac, prior to deciding whether to cooperate with the Prosecution, clearly requires advice and consultation with an independent lawyer presently.

11. The Appeals Chamber understands that Mr. Simic submits in his Response that a conflict of interest does not exist. He argues that the Prosecution may not include Mr. Prcac in its witness list, as Mr. Prcac did not consent to give evidence for the Prosecution. Mr. Simic further submits that the fact that Mr. Prcac was convicted in the Kvocka et al. case “absolutely excludes any possibility” for him to ever appear as a witness in the Mejakic et al. trial. The Prosecution replies that Mr. Prcac’s right to silence, which would include his right not to answer questions which incriminate himself, is different from the right not to be compelled as a witness. The Prosecution further notes that a number of accused have testified in other cases both before and after conviction.

12. The Appeals Chamber finds that a conflict of interests does exist at the present stage of the proceedings. It is not contested that Mr. Mejakic was the direct superior of Mr. Prcac in the Omarska camp. Mr. Mejakic is charged with crimes committed in the Omarska camp under Article 7 (1) of the Statute for participating in a joint criminal enterprise. In addition, he is charged under Article 7 (3) of the Statute, on the basis that he was the commander of the camp and had effective control over the guard shift commanders, camp guards, and other persons working within or visiting the Omarska camp. Further, the Prosecution claims that Mr. Prcac has given evidence incriminating Mr. Mejakic in an interview with the Prosecution in the Kvocka et al. case. It was for this reason that the Trial Chamber considered Mr. Prcac’s evidence significant and allowed the Prosecution to include Mr. Prcac in its witness list.¹⁶

13. It is not necessary to determine if the Prosecution has the right to apply for a subpoena for an interview with Mr. Prcac in the present case. Even if Mr. Simic’s view, that Mr. Prcac may only testify voluntarily, was accepted, the conflict of interest would still exist. Mr. Simic acknowledges that, regardless of an obligation to testify, Mr. Prcac may be included in the Prosecution’s witness list and testify if he consents. As counsel for Mr. Prcac, Mr. Simic is under an obligation to consider what benefits Mr. Prcac might derive from cooperation with the Prosecution by voluntarily giving evidence against Mr. Mejakic. On the other hand, as counsel for the accused Mejakic, Mr. Simic is under an obligation to ensure that Mr. Mejakic’s best interests are protected. This may include taking every legal step possible to ensure that either Mr. Prcac’s evidence is not heard or that it does not implicate Mr. Mejakic.

14. The Appeals Chamber further finds that, if the conflict of interest regarding the representation of Mr. Prcac and Mr. Mejakic is not resolved at the present stage of proceedings, the administration of justice may be irreversibly prejudiced. The Appeals Chamber considers that the conflict of interest is an important one. The Trial Chamber noted in its First Decision that Mr.  Mejakic did not deny that he was in a position of authority at the Omarska camp, and that he acknowledged that Mr. Prcac spent some time there under his command.¹⁷ Mr. Mejakic is charged with command responsibility under Article 7(3) of the Statute. Mr. Prcac may give evidence on the command structure of the Omarska camp as well as on the particular offences committed in this camp. The evidence given by Mr.  Prcac may therefore have a significant impact on the trial of Mr. Mejakic.

15. The decision by Mr. Prcac whether to cooperate with the Prosecution has to be taken presently, and it may impact on the potential benefits for Mr. Prcac and on the conduct of the Mejakic trial. Moreover, the conflict of interest may influence the Defence strategy of Mr. Mejakic, for example, by preventing his counsel from calling certain witnesses in order not to prejudice the interests of Mr. Prcac. There is finally the risk that Mr. Simic might withdraw in the course of the trial because of the conflict of interest, thus delaying the proceedings. For these reasons also the Appeals Chamber finds that the representation of both Mr. Mejakic and Mr. Prcac by Mr. Simic is likely to irreversibly prejudice the administration of justice.

Disposition

For the foregoing reasons, the Appeals Chamber hereby

GRANTS the Appeal;

REVERSES the Impugned Decision; and

ORDERS the Registrar to withdraw Mr. Simic’s assignment to one of the two cases.

Done in both English and French, the English text being authoritative.

Done this 6th day of October 2004,
At The Hague,
The Netherlands.

_________________________
Judge Mehmet Güney
Presiding Judge