Communication with Counsel

Notion(s) Filing Case
Order on Extension of Time - 24.06.2003 MILUTINOVIĆ Milan
(IT-99-37-AR65.3)

CONSIDERING that counsel must be able to communicate with his or her client prior to filing material on his or her behalf;

Download full document
Notion(s) Filing Case
Decision on Communication with Counsel - 15.05.2008 NGEZE Hassan
(ICTR-99-52-R)

Hassan Ngeze requested the Appeals Chamber to authorize “privileged communication with him and two legal assistants and one lawyer who would assist Mr. Dev Nath Kapoor, acting as pro bono Counsel” in the preparation of a motion for review of the Appeal Judgement rendered in this case on 28 November 2007, as well as in matters relevant to his detention. The Appeals Chamber rejected his motion holding that:

pp. 3-4: NOTING that Rule 65 of the Tribunal’s Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal[1] (“Detention Rules”) provides that “[e]ach detainee shall be entitled to communicate fully and without restraint with his Defence Counsel”;

NOTING that visits to and communications with a detainee at the UNDF are governed by Rules 58 to 64 of the Detention Rules;

NOTING that Rule 65 of the Detention Rules only provides for privileged communications between the Applicant and his Counsel and that, in the absence of Counsel, legal assistants are generally allowed non-privileged visitations under Rule 61 of the Detention Rules;

RECALLING that pursuant to Rule 3 of the Detention Rules, the Commanding Officer of the UNDF has primary responsibility for all aspects of the daily management of the UNDF, including communications and visitations, and that, pursuant to Rules 82 and 83 of the Detention Rules, when a detainee is not satisfied with the response of the Commanding Officer to a specific request in that regard, he or she has the right to make a written complaint to the Registrar who shall forward it to the President of the Tribunal;

CONSIDERING that as the Applicant has not exhausted the procedure made available to him under the Detention Rules for consideration of his request the Appeals Chamber will not consider the merits of the Motions

[1] Adopted on 5 June 1998.

[2] Visits to the UNDF under Rule 65 are subject to the same security controls as are imposed under Rule 61 of the Detention Rules. However, communications between Counsel and a detainee under the privileged regime of Rule 65 are conducted “in the sight but not within the hearing, either direct or indirect, of the staff of the Detention Unit”. See Decision on Jean-Bosco Barayagwiza’s Urgent Motion Requesting Privileged Access to the Appellant Without Attendance of Lead Counsel, 17 August 2006, p. 3 referring to Status Conference, T. 7 April 2006, pp. 10-12.

[3] See number of decisions delivered in the Nahimana et al. case, ICTR-99-52-A: Decision on Jean-Bosco Barayagwiza’s Urgent Motion Requesting Privileged Access to the Appellant Without Attendance of Lead Counsel, 17 August 2006, p. 3; Decision on Hassan Ngeze’s Request for a Status Conference, 13 December 2005, p. 3; Decision on Hassan Ngeze’s Request to Grant him Leave to Bring his Complaints to the Appeals Chamber, 12 December 2005, p. 3; Decision on Hassan Ngeze’s Motion for a Psychological Examination, 6 December 2005, p. 3; Decision on Hassan Ngeze’s Motion to Set Aside President Møse’s Decision and Request to Consummate his Marriage, 6 December 2005, pp. 3-4.

Download full document
Other instruments Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal (ICTR): Rule 65.
Notion(s) Filing Case
Public Redacted Version of the "Decision on a Motion to Vacate the Trial Judgement and to Stay Proceedings" Filed on 30 April 2018 - 08.06.2018 MLADIĆ Ratko
(MICT-13-56-A)

Page 3:

CONSIDERING that the determination of Mladić’s request for a stay of the proceedings rests on the determination of his [REDACTED] fitness;[1]

CONSIDERING that fitness to participate in proceedings is related to Article 19(4)(b) of the Statute of the Mechanism (“Statute”), which stipulates that an accused shall be entitled to, inter alia, “communicate with counsel of his or her own choosing”;[2] 

RECALLING that the standard of fitness is that of meaningful participation, allowing the accused to exercise his or her fair trial rights to such a degree as to be able to participate effectively in and understand the essentials of the proceedings, and that an accused’s fitness should turn on whether his or her capacities, “viewed overall and in a reasonable and common sense manner, are at such a level that it is possible for him or her to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights” (“Standard of Fitness”);[3]

RECALLING that the Standard of Fitness applies mutatis mutandis to appeal proceedings as it involves an appellant’s fitness to exercise his or her right to consult with counsel concerning the preparation of appellate submissions;[4]

CONSIDERING that processing the wealth of complex information inherent in international criminal proceedings is the role of defence counsel, in order to advise their clients;[5]

CONSIDERING that an appellant claiming to be unfit to participate in proceedings bears the burden of so proving by a preponderance of the evidence;[6]

 

[1] See Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Public Redacted Version of 30 November 2012 Decision on Request to Terminate Appellate Proceedings in Relation to Milan Gvero, 16 January 2013 (“Popović et al. Decision of 16 January 2013”), paras. 21-30.

[2] See Article 19(4)(b) of the Statute (emphasis added). In this regard, the accused’s ability to participate is clearly contingent upon whether he or she possesses the mental capacity to understand the proceedings and the mental and/or physical capacity to communicate, and thus consult, with his or her counsel. Prosecutor v. Vujadin Popović et al., Case No. IT‑05‑88‑A, Public Redacted Version of 13 December 2010 Decision on Motion by Counsel Assigned to Milan Gvero Relating to his Present Health Condition, 16 May 2011 (“Popović et al. Decision of 16 May 2011”), para. 11.

[3] See Popović et al. Decision of 16 January 2013, para. 21; Popović et al. Decision of 16 May 2011, para. 11; Strugar Appeal Judgement, paras. 41, 55.

[4] See Popović et al. Decision of 16 January 2013, para. 21; Popović et al. Decision of 16 May 2011, para. 11.

[5] See Popović et al. Decision of 16 January 2013, para. 22. See also Prosecutor v. Pavle Strugar, Case No. IT‑01‑42‑A, Judgement, 17 July 2008 (“Strugar Appeal Judgement”), paras. 55, 60. The ICTY Appeals Chamber in the Strugar case emphasized that “fitness to stand trial should be distinguished from fitness to represent oneself. An accused represented by counsel cannot be expected to have the same understanding of the material related to his case as a qualified and experienced lawyer. Even persons in good physical and mental health, but without advanced legal education and relevant skills, require considerable legal assistance, especially in cases of such complex legal and factual nature as those brought before the Tribunal”. See Strugar Appeal Judgement, para. 60. See also Popović et al. Decision of 16 May 2011, para. 13, where the ICTY Appeals Chamber considered that counsel may file a notice of appeal on the appellant’s behalf, on the basis that a variation of the grounds of appeal might be sought later in light of the appellant’s alleged present incapacity.

[6] See Popović et al. Decision of 16 January 2013, para. 21. See also Strugar Appeal Judgement, para. 56.

Download full document