Right to counsel of one's choosing

Notion(s) Filing Case
Decision on Attorney Jovan Simić - 06.10.2004 MEJAKIĆ et al.
(IT-02-65-AR73.1)

This interlocutory appeal decision turned on whether it constituted a conflict of interest for Mr. Jovan Simić to act as counsel for both Željko Mejakić, one of the accused in the case of Prosecutor v. Mejakić et al., and Dragoljub Prcać, an accused in the case of Prosecutor v. Kvočka et al. The Prosecution submitted that should the accused Prcać be called to testify in the Mejakić et al. case, it would be difficult for Mr. Simić, as counsel for both accused, to reconcile his duty to protect the interests of each accused. The Appeals Chamber held as follows:

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.[1] The approach of the Trial Chamber is consistent with the Appeals Chamber’s decision in the case Prosecutor v. Blagojević of 7 November 2003.[2] 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.[3] The Directive on Assignment of Defence Counsel[4] 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. Simić.

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.”[5] 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,[6] a counsel may not represent a client when this representation affects or can affect the representation of another client. [….]

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. [THIS PROVISION WAS AMENDED WITH THE ENTRY INTO FORCE ON 11 JULY 2006 OF THE DIRECTIVE ON THE ASSIGNMENT OF DEFENCE COUNSEL, IT/73 Rev 11. AS AMENDED.]

Mr. Simić 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. Mejakić and Mr. Prcać to represent each of them.

[…]

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. Mejakić was the direct superior of Mr. Prcać in the Omarska camp. Mr. Mejakić 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. Prcać has given evidence incriminating Mr. Mejakić in an interview with the Prosecution in the Kvočka et al. case. It was for this reason that the Trial Chamber considered Mr. Prcać’s evidence significant and allowed the Prosecution to include Mr. Prcać in its witness list.[7]

[…]

14. The Appeals Chamber further finds that, if the conflict of interest regarding the representation of Mr. Prcać and Mr. Mejakić 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.  Mejakić did not deny that he was in a position of authority at the Omarska camp, and that he acknowledged that Mr. Prcać spent some time there under his command.[8] Mr. Mejakić is charged with command responsibility under Article 7(3) of the Statute. Mr. Prcać 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. Prcać may therefore have a significant impact on the trial of Mr. Mejakić.

15. The decision by Mr. Prcać whether to cooperate with the Prosecution has to be taken presently, and it may impact on the potential benefits for Mr. Prcać and on the conduct of the Mejakić trial. Moreover, the conflict of interest may influence the Defence strategy of Mr. Mejakić, for example, by preventing his counsel from calling certain witnesses in order not to prejudice the interests of Mr. Prcać. There is finally the risk that Mr. Simić 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. Mejakić and Mr. Prcać by Mr. Simić is likely to irreversibly prejudice the administration of justice.

[1] First Decision [Decision on Prosecution motion to resolve conflict of interest regarding attorney Jovan Simić, 18 September 2003], p. 2.

[2] Prosecutor v. Blagojević, Case no. IT-02-60-AR73.4, Public and redacted reasons for Decision on Appeal by Vidoje Blagojević to replace his Defence team, 7 November 2003.

[3] Idem, para. 7.

[4] Directive on Assignment of Defence Counsel, IT/73, Rev 9, as amended on 12 July 2002.

[5] Prosecutor v. Akayesu, Case No. ICTR-96-4A, Appeals Chamber Judgement, 1 June 2001, para. 61.

[6] Code of professional conduct for counsel appearing before the International Tribunal, IT/125 rev. 1, as amended on 12 July 2002 (“Code of Conduct”).

[7] Decision on Prosecution motion for leave to amend its Rule 65ter witness and exhibit lists, 18 February 2004.

[8] First Decision, p. 3.

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ICTR Statute Acticle 20(4)(d) ICTY Statute Acticle 21(4)(d) Other instruments Directive on the Assignment of Defence Counsel (ICTY), Article 16; Code of Professional Conduct for Counsel Appearing Before the International Tribunal.
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

265. While not deeming it necessary to reiterate all the legal principles evoked above,[1] the Appeals Chamber recalls that the right of an indigent defendant to effective representation does not entitle him to choose his own counsel. […]

[1] See supra IV. A.

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Notion(s) Filing Case
Decision on Withdrawal of Co-Counsel - 23.11.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

10. It has been repeatedly emphasized that the right to legal assistance financed by the Tribunal does not confer the right to counsel of one’s choosing.[1] When deciding on the assignment of counsel, some weight is accorded to the accused’s preference, but such preference may be overridden if it is in the interests of justice to do so.[2] The Appeals Chamber further recalls that an indigent accused does not have a right to a co-counsel, but, where appropriate and at the request of the lead counsel, the Registrar may appoint a co-counsel to assist the assigned lead counsel.[3] Accordingly, where co-counsel has been appointed and subsequently withdrawn, there is no guarantee that the co-counsel will be replaced.[4] Finally, the Appellant’s personal preferences are irrelevant to assignment or withdrawal of co-counsel.[5]

[1] Blagojević Appeal Decision, para. 22 and footnote 54; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić, 6 October 2004, para. 8; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (“Akayesu Appeal Judgement”), para. 61; Jean Kambanda v. The Prosecutor, Case No. ICTR 97-23-A, Judgement, 19 October 2000, para. 33. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Maitre Paul Skolnik’s Application for Reconsideration of the Chamber’s Decision to Instruct the Registrar to Assign him as Lead Counsel for Gratien Kabiligi, 24 March 2005 (“Bagosora Decision of 24 March 2005”), para. 21; Bagosora Decision of 19 January 2005, para. 45; The Prosecutor v. Tharcisse Muvunyi et al., Case No. ICTR-2000-55-I , Decision on the Accused’s Request to Instruct the Registrar to Replace Assigned Lead Counsel, Article 20(4)(d) of the Statute and Rules 45 and 73 of the Rules of Procedure and Evidence, 18 November 2003, para. 6.

[2] Barayagwiza Decision, p. 3; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.1, Decision on Appeal by Bruno Stojjić Against Trial Chamber Decision on Request for Appointment of Counsel, 24 November 2004, para. 19; Blagojević Appeal Decision, para. 22; Akayesu Appeal Judgement, para. 62. See also Bagosora Decision of 24 March 2005, para. 21; Blagojević Trial Decision, paras 86, 117; Prosecutor v. Duško Knežević, Case No. IT-95-4-PT, Decision on Accused’s Request for Review of Registrar’s Decision as to Assignment of Counsel, 6 September 2002, p. 3; The Prosecutor v. Gérard Ntakirutimana, Case Nos. ICTR-96-10-T and ICTR-96-17-T, Decision on the Motions of the Accused for Replacement of Assigned Counsel/Corr., 18 June 1997, p. 5.

[3] Directive, Article 15(C) and (E). See The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Defence Oral Motion for Adjournment of the Proceedings, 8 October 2004, para. 6 ; Le Procureur c. Aloys Simba, Affaire no ICTR-01-76-I, Décision portant report de la date d’ouverture du procès, 18 août 2004, para. 24 ; Blagojević Trial Decision, paras 77, 79, 118; Prosecutor v. Radislav Brđanin, Case No. IT-99-36-T, Confidential Order Relating to Lead Counsel’s Appeal from Registrar’s Confidential Decision of 7 March 2003, 1 April 2003, p. 7.

[4] Blagojević Trial Decision, para. 79.

[5] Cf. Blagojević Appeal Decision, para. 54.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

14. The Appeals Chamber ultimately confirmed that as a participant in the International Tribunal’s legal aid program, Blagojević did not have the absolute right to choose his counsel;[1] that the Registrar had properly assigned competent counsel committed to representing Blagojević’s interests;[2] that good cause did not exist for removing his duly assigned defence team;[3] and that he was not justified in unilaterally refusing to cooperate with his lawyers.[4] […]

17. Blagojević submits that the Trial Chamber violated his right to counsel of his choice when it refused to replace his entire defence team after the breakdown in trust and communication between him and his assigned counsel. This submission consists of two principal arguments. First, Blagojević maintains that, even as a participant in the International Tribunal’s legal aid system, he has a right to counsel of his choice. This argument has no merit. An accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him by the Registrar from the list drawn up in accordance with Rule 45(B), provided that there is no impediment to the assignment of that counsel.[5] While there is the additional limitation placed on the right of an indigent accused to choose counsel in so far as the choice is limited to the list of counsel maintained in accordance with Rule 45, as previously explained in this case, the Registrar normally takes account of an accused’s preferences in assigning counsel, as was done in the present case, but it is also within the Registrar’s discretion to override that preference in the interests of justice.[6] Once counsel has been properly assigned, as was the case here, counsel has a professional obligation to continue representing the accused and may only be withdrawn or replaced, if sufficient cause exists.[7]

[1] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team [Prosecutor v. Vidoje Blagojević, Case No. IT-02-60-AR73.4, Ex Parte and Confidential Reasons for Decisions on Appeal by Vidoje Blagojević to Replace his Defence Team, 7 November 2003], paras. 22, 33, 54.

[2] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, para. 54.

[3] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, paras. 16-22, 24-33, 42-54.

[4] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, paras. 31, 51, 54.

[5] Rules, Rule 45; Directive on Assignment of Defence Counsel, Articles 6 and 11(D)(i).

[6] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, para. 22 fn. 54. See also Mejakić et al., Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić [Prosecutor v. Zeljko Mejakić et al., Case No. IT-02-65-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić, 6 October 2004], para. 8; Nahimana et al., Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar relating to the Withdrawal of Co-Counsel [Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar Relating to the Withdrawal of Co-Counsel, 23 November 2006], para. 10; Akayesu Appeal Judgement, para. 61; Kambanda Appeal Judgement, para. 33.

[7] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, paras. 52, 54.

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ICTR Rule Rule 45 ICTY Rule Rule 45
Notion(s) Filing Case
Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

14. The Appeals Chamber ultimately confirmed that as a participant in the International Tribunal’s legal aid program, Blagojević did not have the absolute right to choose his counsel;[1] that the Registrar had properly assigned competent counsel committed to representing Blagojević’s interests;[2] that good cause did not exist for removing his duly assigned defence team;[3] and that he was not justified in unilaterally refusing to cooperate with his lawyers.[4] […]

17. Blagojević submits that the Trial Chamber violated his right to counsel of his choice when it refused to replace his entire defence team after the breakdown in trust and communication between him and his assigned counsel. This submission consists of two principal arguments. First, Blagojević maintains that, even as a participant in the International Tribunal’s legal aid system, he has a right to counsel of his choice. This argument has no merit. An accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him by the Registrar from the list drawn up in accordance with Rule 45(B), provided that there is no impediment to the assignment of that counsel.[5] While there is the additional limitation placed on the right of an indigent accused to choose counsel in so far as the choice is limited to the list of counsel maintained in accordance with Rule 45, as previously explained in this case, the Registrar normally takes account of an accused’s preferences in assigning counsel, as was done in the present case, but it is also within the Registrar’s discretion to override that preference in the interests of justice.[6] Once counsel has been properly assigned, as was the case here, counsel has a professional obligation to continue representing the accused and may only be withdrawn or replaced, if sufficient cause exists.[7]

[1] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team [Prosecutor v. Vidoje Blagojević, Case No. IT-02-60-AR73.4, Ex Parte and Confidential Reasons for Decisions on Appeal by Vidoje Blagojević to Replace his Defence Team, 7 November 2003], paras. 22, 33, 54.

[2] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, para. 54.

[3] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, paras. 16-22, 24-33, 42-54.

[4] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, paras. 31, 51, 54.

[5] Rules, Rule 45; Directive on Assignment of Defence Counsel, Articles 6 and 11(D)(i).

[6] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, para. 22 fn. 54. See also Mejakić et al., Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić [Prosecutor v. Zeljko Mejakić et al., Case No. IT-02-65-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić, 6 October 2004], para. 8; Nahimana et al., Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar relating to the Withdrawal of Co-Counsel [Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar Relating to the Withdrawal of Co-Counsel, 23 November 2006], para. 10; Akayesu Appeal Judgement, para. 61; Kambanda Appeal Judgement, para. 33.

[7] Blagojević, Ex Parte and Confidential Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, paras. 52, 54.

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Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

33. With respect to the right to choose one’s counsel, the Appellant argues that he ought to have had the right to choose his counsel and that the violation of this right was a violation of his right to a fair trial[1]. The Appeals Chamber refers on this point to the reasoning of Trial Chamber I in the Ntakirutimana case[2] and concludes, in the light of a textual and systematic interpretation of the provisions of the Statute and the Rules[3], read in conjunction with relevant decisions from the Human Rights Committee[4] and the organs of the European Convention for the Protection of Human Rights and Fundamental Freedoms,[5] that the right to free legal assistance by counsel does not confer the right to choose one’s counsel.

[1] Appellant’s Brief [Brief in support of the Consolidated Notice of Appeal, 3 March 2000], paras. 17 – 21.

[2] “Decision on the Motions of the Accused for Replacement of Assigned Counsel”, The Prosecutor v. Gérard Ntakirutimana, Case No. ICTR-96-10-T and ICTR-96-17-T, 11 June 1997, p. 2 et seq.

[3] Textual analysis of subparagraph (d) of paragraph 4 of Article 20 of the Statute shows that the choice of assigned defence counsel is made, in any event, by an authority of the Tribunal, not the accused. This Article must be read in conjunction with Rule 45 of the Rules and Article 13 of the Directive on the Assignment of Defence Counsel, whereby the Registrar is the person authorized to make the choice. The Registrar therefore has no other obligation than to assign counsel whose name appears on the list of counsel who may be assigned, and is not bound by the wishes of an indigent accused.

[4] According to the Human Rights Committee, “article 14, paragraph 3 (d) [of the International Convention on Civil and Political Rights] does not entitle the accused to choose counsel provided to him free of charge”. Osbourne Wright and Eric Harvey v. Jamaica, Comm. No. 459/1991, 8 November 1995, UN Doc. CCPR/C/50/D/330/1988, para. 11.6.

[5] Article 6, subparagraph 3. C. of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) guarantees three rights, which may be exercised on mutually exclusive bases: to defend oneself in person or through legal assistance of one’s own choosing or, if one has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. See the account of developments in the exercise of these rights in Louis-Edmond Pettiti, Emmanuel Decaux, Pierre-Henri Imbert (eds.) La Convention Européenne des Droits de l’Homme, Commentaire article par article, (Economica, Paris, 1999) pp. 274-275. According to the Convention bodies, the right to legal assistance of one’s own choosing is not absolute (X v. United Kingdom, Eur. Comm. H.R., Judgement of 9 October 1978, Application No. 8295/78; Croissant v. Germany, Eur. Ct. H.R., Judgement (Merits) of 25 September 1992, Application No. 13611/88, Series A, no. 237-B, para. 29). It particularly does not apply when legal assistance is free. Indeed, Article 6 (3) (c) does not guarantee the right to choose the defence counsel who will be assigned by the court, nor does it guarantee the right to be consulted on the choice of the defence counsel to be assigned (X v. Federal Republic of Germany, Decision of 6 July 1976, Application No. 6946/75 and F v. Switzerland, Eur. Comm. H.R., Decision of 9 May 1989, Application No. 12152/86). In any event, the authority responsible for appointing counsel has broad discretionary powers: “[the right to counsel of one’s own choosing] is necessarily subject to certain limitations where free legal aid is concerned and also where […] it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel, the national courts must certainly have regard to the defendant’s wishes […]. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.” (Croissant v. Germany, op. cit. supra, para. 29).

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ICTR Statute Article 20 (4)(d) ICTY Statute Article 21 (4)(d)
Notion(s) Filing Case
Decision on Conflict of Interest (Čermak) - 29.06.2007 GOTOVINA et al.
(IT-06-90-AR73.2)

55. The Appeals Chamber reiterates that “[o]ne of the limits to the accused’s choice [of counsel] is a conflict of interest affecting hiscounsel”.[1]

[1] Appeals Chamber Joinder Decision, para. 30 citing Prosecutor v. Željko Mejakić et al., Case No IT-02-65-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić, 6 October 2004 (“Mejakić Decision”), para. 8.

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Notion(s) Filing Case
Decision on Conflict of Interest (Markač) - 04.05.2007 GOTOVINA et al.
(IT-06-90-AR73.1)

37. As previously stated by the Appeals Chamber, in principle, the choice of any accused regarding his defence counsel in proceedings before the International Tribunals should be respected unless there are sufficient grounds to override the accused’s preference in the interests of justice.[1] When the fairness of the trial which is one of the fundamental rights of the accused also provided for in Article 21 of the Statute is at stake, as is suggested in the present case, the accused’s choice might be overridden.[2]  It is established jurisprudence that one of the limits to the accused’s choice is the existence of a conflict of interest affecting his counsel.[3]

[1] Stojić Decision [FULL NAME], para. 19; Appeals Chamber Decision on Joinder [Prosecutor v. Ante Gotovina, Case No. IT-01-45-AR73.1, Prosecutor v. Ivan Čermak and Mladen Markač, Case Nos. IT-03-73-AR73.1 and IT-03-73-AR73.2, Decision on Interlocutory Appeal Against the Trial Chamber’s Decision to Amend the Indictment and for Joinder, 25 October 2006], para. 30.

[2] Stojić Decision, para. 19.

[3] Stojić Decision, para. 19; see also Prosecutor v. Željko Mejakić et al, Case No. IT-02-65-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić, 6 October 2004, para. 8.

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Notion(s) Filing Case
Decision on Joinder - 25.10.2006 GOTOVINA et al.
(IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2)

Regarding the Accused’s right to choose counsel, the Appeals Chamber, at para. 30, recalled that

[…] while the right to choose counsel is a fundamental right under Article 21(4)(b) and (d) of the Statute, this right is not without limits.[1] An accused may choose counsel, but this right does not guarantee that counsel will accept if chosen or always remain counsel for that accused due to a perceived conflict of interests that may arise or for any other reason. As previously stated by the Appeals Chamber, “[o]ne of the limits to the accused’s choice is a conflict of interest affecting his counsel.”[2]

[1] Prosecutor v. Mejakić et al., Case No. IT-02-65-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić, 6 October 2004, para. 8.

[2] Decision, para. 30, citing Prosecutor v. Mejakić et al., Case No. IT-02-65-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić, 6 October 2004, para. 8

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Notion(s) Filing Case
Decision on Appointment of Counsel - 24.11.2004 PRLIĆ et al.
(IT-04-74-AR73.1)

19. Pursuant to Article 21(4) (b) and (d) of the Statute the accused is entitled to legal assistance of his own choosing. However this guarantee is not without limits. Previous decisions issued by the Appeals Chamber have established that the right to publicly paid counsel of one’s own choice is limited.[1] In principle the choice of any accused regarding his Defence counsel in proceedings before the International Tribunals should be respected unless there are sufficient grounds to override the accused’s preference in the interests of justice. When the fairness of the trial which is one of the fundamental rights of the accused also provided for in Article 21 of the Statute, is at stake (as it is suggested to be the case here) the accused’s choice might be overridden regardless of whether the case is concerned with the appointment of counsel paid by the accused. As rightly stated in the Impugned Decision, one of the limits to the accused’s choice is the existence of a conflict of interests affecting his counsel.[2]

[…]

21. The Appeals Chamber recalls that the issue of qualification, appointment and assignment of counsel, is open to judicial scrutiny.[3] The issue being raised bears on the substantive nature of the representation by Mr. Olujić and the proper fulfilment of the obligations which derive from the legal representation of the Appellant.[4] Problems relating to the Appellant’s defence would affect the conduct of the case which the Trial Chamber has the duty to regulate in accordance with the requirements set forth in Article 20 of the Statute.[5] In sum, a conflict of interests between Mr. Ivica Rajić and the Appellant would affect the fairness of the proceedings. This concerns, first, the responsibility of the Trial Chamber to ensure that the trial is fair, and secondly, the right of the Appellant and of Ivica Rajić to a fair trial. [6]

22. 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.[7] Article 14 of the Code of Conduct[8] which concerns the existence of a conflict of interests, provides that a counsel may not represent a client when this representation affects or can affect the representation of another client.  

[1] Prosecutor v. Jean Kambanda, Case No.: ICTR-97-23-A, Appeals Chamber Judgement, 19 October 2000, para. 33; Prosecutor v. Jean Paul Akayesu, Case No.: ICTR-96-4-A, Appeals Chamber Judgement, 1 June 2001, paras 61, 62; Prosecutor v. Vidoje Blagojević et al, Case No.: IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojević to Replace his Defence Team, 7 November 2003, para. 22; Prosecutor v. Željko Mejakić et al, Case No.: IT-02-65-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić, 6 October 2004, para. 8.

[2] Impugned Decision [Decision on Requests for Appointment of Counsel, 30 July 2004], para. 13; see Prosecutor v. Željko Mejakić et al, Case No.: IT-02-65-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić, 6 October 2004, para. 8.

[3] Prosecutor v. Enver Hadžihasanović et al, Case No.: IT-01-47-PT, Decision on Prosecution’s Motion for Review of the Decision of the Registrar to Assign Mr. Rodney Dixon as Co-Counsel to the Accused Kubura, 26 March 2002, para. 21.

[4] See Prosecutor v. Vidoje Blagojević et al, Case No.: IT-02-60-T, Decision on Independent Counsel for Vidoje Blagojević’s Motion to Instruct the Registrar to Appoint New Lead and Co-Counsel, 3 July 2003, para. 27.

[5] Prosecutor v. Enver Hadžihasanović et al, Case No.: IT-01-47-PT, Decision on Prosecution’s Motion for Review of the Decision of the Registrar to Assign Mr. Rodney Dixon as Co-Counsel to the Accused Kubura, 26 March 2002, para. 21.

[6] See Prosecutor v. Blagoje Simić et al, Case No.: IT-95-9-PT, Decision on the Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarević, 25 March 1999, p. 6.

[7] Ibid.

[8] Code of Professional Conduct for Counsel Appearing Before the International Tribunal, IT/125 Rev. 1, as amended on 12 July 2002 (“Code of Conduct”).

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ICTR Statute Article 20 (4) (b);
Article 20 (4) (d)
ICTY Statute Article 21 (4) (b);
Article 21 (4) (d)
Notion(s) Filing Case
Decision on Revocation of Referral - 04.10.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

36.     In considering Uwinkindi’s complaint of an alleged breach of his right to choose his counsel, the Trial Chamber recalled that the Appeals Chambers of the ad hoc Tribunals have consistently recognised that individuals lacking the means to remunerate counsel do not have an absolute right to a counsel of their own choosing.[1] […] Consistent with international human rights law and the case law of the ad hoc Tribunals, this right is necessarily subject to certain limitations where, as in the present case, free legal aid is relied upon and the interests of justice require the accused to be defended by counsel assigned to him despite his wishes.[2]

37.     […] The Appeals Chamber considers that avoiding interruptions or adjournments corresponds to an interest of justice which may well justify the appointment of counsel against the accused’s wishes.[3] […]

See also paragraph 38.

[1] See Impugned Decision [Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25-R14.1, Decision on Uwinkindi’s Request for Revocation, 22 October 2015], para. 24 and references cited therein.

[2] See Léonidas Nshogoza v. The Prosecutor, Case No. ICTR-2007-91-A, Judgement, 15 March 2010, para. 35; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Judgement, 9 May 2007, paras. 14, 17. See The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 23 November 2001 (signed on 1 June 2001), para. 61; Jean Kambanda v. The Prosecutor, Case No. ICTR-97-23-A, Judgement, 19 October 2000, para. 33. See also Dvorski v. Croatia [2015] ECHR 927, paras. 78, 79.

[3] Croissant v. Germany [1992] ECHR 60, para. 28. 

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