"Decision on Request of the Accused Radomir Kovac to Allow Mr. Milan Vujin to Appear as a Co-Counsel Acting Pro Bono"

14 March 2000
Judges Mumba [Presiding], Hunt and Pocar

The issue

Mr. Milan Vujin, former counsel of Dusko Tadic, was found guilty of contempt of the Tribunal by the Appeals Chamber for using false statements and manipulating witnesses1. The accused, Milan Vujin, was ordered to pay a fine of Dfl 15,000 to the Registrar of the Tribunal. In addition, as part of the punishment, the Appeals Chamber directed the Registrar to examine the option of striking Vujin from the Registry’s list of Defence counsel eligible for assignment2. Vujin has appealed the Judgement and his appeal is currently under review.

Because of the proceedings prior to the Appeals Chamber’s Judgement and the pending appeal, the Registrar refused to assign Vujin to the accused Radomir Kovac3. A decision on striking Vujin from the list of defence counsel has not yet been taken by her on account of the pending appeal against the contempt finding. The accused Kovac is now requesting that Vujin be allowed to act as pro bono co-counsel on his defence team4.

The decision

The Trial Chamber stated that Vujin "flagrantly flaunted" his obligations and functions as a Defence counsel and noted that he had been found guilty of that by the Appeals Chamber5. Therefore, the Trial Chamber concluded that he was no longer fit to appear before the Tribunal and that he could not be given the right of audience by the Trial Chamber6.

The Trial Chamber further stated that its Decision applied regardless of Vujin’s pending appeal against the Judgement of the Appeals Chamber.

The reasoning

The Registrar had no jurisdiction with respect to this request since Vujin would not have appeared as assigned counsel, but as a privately retained counsel acting pro bono. The competence was thus with the Trial Chamber.

The general requirement set in Rule 44(A) of the Rules of Procedure and Evidence for eligibility was fulfilled in that case7 and Rule 46 dealing with questions of courtroom decorum or other behaviour in the course of proceedings was inapplicable8.

In addition, the Trial Chamber referred to its inherent power to control the proceedings in such a way as to ensure that justice is done and to deal with conduct which interferes with the Tribunal’s administration of justice9. In the present instance, the Trial Chamber stated that this inherent power constituted a sufficient foundation on which to proceed in this matter: "The Trial Chamber considers the inherent power by necessity to include the power to refuse audience to counsel, notwithstanding that he may be otherwise qualified under Rule 44(A) of the Rules of Procedure and Evidence, but who is for other reasons not a fit and proper person to appear before the Tribunal"10.

In the present case, the Trial Chamber took note of Vujin’s "utter disrespect for his professional duties towards his clients and the Tribunal", and added that his conduct "seriously undermined the search for the truth, an important obligation in the administration of justice"11. This finding led the Chamber to conclude that Vujin was no longer fit to appear before the Tribunal and would not be given the right to audience before the Trial Chamber. The Trial Chamber added that it "would be failing in its duty to protect the interests of the accused Radomir Kovac" if it allowed Vujin to appear as Kovac’s co-counsel12. The Chamber noted, however, that the matter might be revisited in the event of an acquittal of the contempt charges on appeal.

Seperate opinion of Judge Hunt13

In his Separate Opinion, Judge Hunt held that the right of the accused, given by Article 21(4)(d) of the Statute to defend himself through legal assistance of his own choosing must necessarily be understood as being subject to the fitness of counsel so chosen to appear before the Tribunal14.

Judge Hunt declared that, at this stage, Mr Vujin was to be treated as guilty of the conduct found by the Appeals Chamber15, which had operated against the interests of his own client16. Judge Hunt agreed with the Appeals Chamber that Mr Vujin is not a fit and proper person to appear as counsel before the Tribunal. His conduct amounted to professional misconduct and it had "struck at the very heart of the criminal justice system"17.

Judge Hunt concluded that it would be inappropriate to allow Mr Vujin to appear for Kovac pending the disposal of his appeal only because of the possibility that he may be successful in that appeal18.

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1. The Prosecutor v. Tadic, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000 (summarised in Judicial Supplement No. 11). With respect to the charges underlying the finding, see para. 160 of the Judgement.
2. See Rule 45 of the Rules of Procedure and Evidence.
3. The Prosecutor v. Kunarac et al., Decision, 14 February 2000 (filed on 15 February 2000). See also Directive for Assignment of Defence Counsel.
4. Para. 1: "Although Mr. Momir Kolesar [Kovac’ defence counsel] in his request used the word "assignment", from the context and the use of the expression "voluntary co-counsel" it is clear that he did not intend to request an assignment under the Directive for Assignment of Defence Counsel, but asked that Mr. Milan Vujin be granted the right of audience before the Trial Chamber."
5. The Appeals Chamber stated that Vujin’s behaviour had struck at the very heart of the criminal justice system. See The Prosecutor v. Tadic, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000 (summarised in Judicial Supplement No. 11), paras. 167-8. See also The Prosecutor v. Aleksovski, Finding of Contempt of the Tribunal, 11 December 1998 regarding the counsel’s duty of probity and honesty vis-à-vis his client and the Tribunal.
6. Para. 17.
7. The relevant part of Rule 44(A) reads as follows: "[…] A counsel shall be considered qualified to represent a suspect or accused if the counsel satisfies the Registrar that the counsel is admitted to the practice of law in a State, or is a University professor of law." The condition was satisfied as Vujin had been previously included in the list referred to under Rule 45(A), which in turns refers to Rule 44(A).
8. Para. 8: "Rule 46 […] makes it necessary to ensure that counsel has no platform in the hearings to continue his disruptive conduct. Mr. Milan Vujin has not yet appeared before this Trial Chamber and cannot therefore be said to have in any way obstructed the proceedings."
9. See The Prosecutor v. Tadic, Order of the President Assigning a Bench of the Appeals Chamber, 8 March 2000, paras. 13-29 and The Prosecutor v. Delalic et al. ("Celebici"), Order on the Motion to Withdraw as Counsel Due to Conflict of Interest, 24 June 1999, p. 3. Also on the Tribunal’s inherent powers to enforce its mandate, see The Prosecutor v. Blaskic, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, in particular its footnote 27 (the relevant passages of that Judgement are quoted extensively in the present Decision at para. 10). Finally, see The Prosecutor v. Tadic, Judgement, 15 July 1999, paras. 321-2 (summarised in Judicial Supplement No. 6) and Judge Hunt’s Separate Opinion in The Prosecutor v. Simic et al., Decision on Prosecutor’s Motion for a Ruling Concerning the Testimony of a Witness, 27 July 1999, para. 25.
10. Para. 13.
11. Para. 14. With respect to Vujin’s obligations as a defence counsel appearing before the International Tribunal, see paras. 15-16.
12. Para. 18.
13. The Prosecutor v. Kunarac et al., Separate Opinion of Judge David Hunt on Request by Radomir Kovac to Allow Milan Vujin to Appear as Counsel Acting Without Payment by the Tribunal, 24 March 2000.
14. Paras. 8 and 10 of the Separate Opinion.
15. Para. 9.
16. Para. 3.
17. Para. 11.
18. Para. 9.

"Order on Defence Motion Pursuant to Rule 79"

22 March 2000
Judges Mumba [Presiding], Hunt and Pocar

The issue

In its Motion, the Defence requested that the Trial Chamber will extend protective measures to certain Prosecution witnesses so that the press and the public will be excluded from parts of the proceedings and their testimony will be heard in closed session1. The reasons advanced by the Defence are as follows: a) because of the nature of their testimony, the quality of the testimony of these witnesses may be influenced were they to testify in open session; b) because of the nature of the alleged acts, their testimony may violate the morality of these witnesses themselves as well as that of the public; and c) closed session testimony would be in the interests of justice, because if these witnesses do not feel secure, they may not testify correctly on the relevant facts of the case2.

The decision

The Trial Chamber denied the Motion.

The reasoning

The Trial chamber denied the Defence Motion because it considered that the various protective measures already granted were sufficient. "Further, the nature of the alleged crimes themselves, as charged in the present indictment, does not offend public order or morality, neither would testimony on them amount to that"3. Moreover, with respect to the Defence’s last argument, the Trial Chamber declared that it would assess the truthfulness of the testimony of various witnesses.

The Trial Chamber added that it was of great importance that proceedings should be public as far as possible. "Non-public proceedings should be the exception and will be allowed only in accordance with the Statute and the Rules that do provide for certain limited instances where proceedings may be non-public"4. The Chamber went on to say, that "[o]ver and above the reasons that public proceedings facilitate public knowledge and understanding and may have a general deterrent effect, the public should have the opportunity to assess the fairness of the proceedings. Justice should not only be done, it should also be seen to be done"5.

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1. "Defence Motion Pursuant to Rule 79 (I), (ii), (iii)", 14 March 2000. The Prosecutor opposed the Motion stating that the protective measures already in place for these witnesses were adequate.
2. Para. 3.
3. Para. 4.
4. Para. 5.
5. Ibid.