41. The Appeals Chamber recalls that review is an exceptional remedy and that an applicant is only entitled to assigned counsel, at the Tribunal’s expense, if the Appeals Chamber authorizes the review.[1] Nonetheless, counsel may be assigned at the preliminary examination stage, normally for a very limited duration, if it is necessary to ensure the fairness of the proceedings.[2] Mr. Rutaganda has already made extensive and detailed submissions supported by a number of exhibits in his Request for Review. The Appeals Chamber is not satisfied that additional briefing would be of assistance in the present inquiry. In such circumstances, Mr. Rutaganda’s Request for Review does not warrant the assignment of counsel under the auspices of the Tribunal’s legal aid system.

42. Nonetheless, as a general matter, Mr. Rutaganda may be assisted by counsel in connection with a request for review at his own expense or on a pro bono basis provided the counsel files a power of attorney with the Registrar and satisfies the requirements to appear before the Tribunal. The Registry informed Mr. Rutaganda of this in its letter dated 21 October 2004, explaining that his former counsel could contact him.[3] Thereafter, Mr. Rutaganda filed a notice to the Deputy Registrar indicating that he had retained his former counsel to assist him.[4] Even putting aside that Rule 44(A) of the Rules refers to the counsel filing a power of attorney, Mr. Rutaganda has not pointed to any instance after that point where he was denied access to his counsel.[5] The Appeals Chamber further observes that, in his request, he refers to the pro bono assistance which he received from his former counsel during this period.[6] Accordingly, the Appeals Chamber declines to consider further Mr. Rutaganda’s alleged violations of his right to communicate with counsel. In any event, as a general rule, such matters should first and foremost be addressed by the Registrar.[7]

In its Judgement of 19 September 2005,[1] the Appeals Chamber affirmed Kamuhanda’s convictions for ordering genocide and extermination as a crime against humanity, as well as the sentences imposed by the Trial Chamber on 22 January 2004.[2] Subsequent to the Appeal Judgement, 1) one of the Prosecution’s witness in his case was found guilty on 4 December 2007 of giving false testimony under solemn declaration and contempt of the Tribunal and sentenced to nine months of imprisonment;[3] and 2) a former investigator in Kamuhanda’s Defence team, was convicted on 7 July 2009 of committing contempt of the Tribunal and sentenced to 10 months of imprisonment.[4]

Finding that it was necessary in order to ensure the fairness of the proceedings at this preliminary examination stage, the Appeals Chamber granted Kamuhanda’s request for assigned legal assistant to determine whether a request for review is warranted and, if need be, to prepare such a request. The applicable law was recalled, specifying the possible forms of such legal assistance:

17. The Appeals Chamber recalls that as a matter of principle it is not for the Tribunal to assist a convicted person whose case has reached finality. It is only in exceptional circumstances that a convicted person will be granted legal assistance at the expense of the Tribunal after a final judgement has been rendered against him.[5] This type of legal assistance may take different forms, such as the assignment of a counsel or a legal assistant, where the convicted person is indigent. At the preliminary examination stage of a request for review, such assistance will be granted only if the Appeals Chamber deems it “necessary to ensure the fairness of the proceedings”.[6] This necessity is, to a great extent, assessed in light of the potential grounds for review put forward by the applicant.[7]

As for the reasons underpinning the necessity to ensure the fairness of the proceedings, the Appeals Chamber held:

18. The Appeals Chamber cannot rule on Kamuhanda’s potential grounds for review as currently presented; the Motion is neither fully articulated in this respect nor is it intended to be a request for review per se, and Kamuhanda has yet to consider the material disclosed to him by the Prosecution in May 2009. Nevertheless, unlike other requests for legal assistance for review proceedings brought before the Appeals Chamber, Kamuhanda’s Motion provides information on the materials he considers to be “new facts” and explains how they could have been a decisive factor in reaching the original decision. Having carefully considered Kamuhanda’s arguments, as well as the material recently disclosed by the Prosecution, the Appeals Chamber is not in a position to exclude that Kamuhanda’s potential grounds of review may have a chance of success.[8]

19. The Appeals Chamber observes that Kamuhanda was able to file a detailed and coherent request despite his asserted lack of technical legal skills. However, in the exceptional circumstances of this particularly complex case, involving false testimony and subsequent contempt proceedings, the Appeals Chamber is of the view that Kamuhanda lacks the necessary legal expertise to properly assess and weigh the material now in his possession to determine whether a request for review is warranted and, if need be, to prepare such a request.

20. Accordingly, the Appeals Chamber finds that Kamuhanda has shown that it is necessary in order to ensure the fairness of the proceedings at the preliminary examination stage that he be afforded limited legal assistance under the auspices of the Tribunal’s legal aid system.[…].

12.     The Appeals Chamber cannot exclude that this potential ground for review may have a chance of success. The provision of materially inconsistent testimony in a domestic proceeding, which was unavailable at the time of trial or appeal, could impact the credibility of an uncorroborated witness and thus the verdict. The scope of Witness GGV’s testimony during the domestic proceedings and any justifications for providing different accounts underscore the complexity of this matter. Given this complexity, Niyitegeka, who is serving his sentence in Mali, would benefit from the assistance of counsel to better evaluate the viability of his potential grounds for review and to provide a new and more focused submission supporting his request for review. Accordingly, the Appeals Chamber finds that Niyitegeka has shown that it is necessary in order to ensure the fairness of the proceedings that counsel be appointed under the auspices of the Mechanism’s legal aid program.

9.       […] The Appeals Chamber recalls that review is an exceptional remedy and that an applicant is only entitled to assigned counsel at the expense of the Mechanism if the Appeals Chamber authorizes the review, or, before such an authorization, if it deems it necessary to ensure the fairness of the proceedings.[1] This necessity is, to a great extent, assessed in light of the potential grounds for review put forward by the applicant.[2] In previous cases, the ICTR Appeals Chamber has confirmed such necessity where it found itself to be unable to exclude that the potential grounds for review invoked by the applicant may have a chance of success and where the particular complexity of the matter justified the granting of legal assistance in order to ensure the fairness of the proceedings.[3] […]

[…]

13      In any event, the Appeals Chamber considers that the matter at hand is distinguishable from the matter addressed by the ICTR Appeals Chamber in the Kajelijeli Appeal Decision of 12 November 2009. In the latter case, the ICTR Appeals Chamber granted Kajelijeli’s request for the assignment of counsel for the purpose of exploring witness recantation and allegations of manipulated or fabricated testimony.[4] The ICTR Appeals Chamber emphasized that the complexity of this particular matter required that Kajelijeli be assisted by counsel.[5] In contrast, the circumstances surrounding Ntabakuze’s potential ground of review in relation to the IAMSEA killings, including the need to contact witnesses and pursue new leads, are common features in the context of the preparation of a review request and are not, per se, particularly complex.

16. The Appeals Chamber considers that the delays that would inevitably result from allowing Praljak to represent himself will negatively affect the right of Praljak, as well as that of his Co-Appellants (all of whom are represented by counsel) to fair and expeditious proceedings. As a trial chamber of the Special Court for Sierra Leone has held, ensuring adequate legal representation of each defendant is of particular importance in the context of a multi-accused case.[1] The Appeals Chamber notes that this consideration is relevant to the case at hand.[2] Praljak himself has stated on several occasions that his interests would be better served through assistance of counsel, in particular during appeal proceedings.[3] The Appeals Chamber is therefore satisfied, given the specific circumstances of this case, that Praljak should not be allowed to represent himself in these proceedings and considers proprio motu that the assignment of counsel to Praljak would be in the interests of justice pursuant to Rule 45ter of the Rules. Accordingly, the Appeals Chamber finds that there is no reason to stay proceedings as requested by Praljak.

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CONSIDERING that, in general, the Appeals Chamber only authorizes the assignment of counsel at the expense of the Mechanism where it cannot exclude the likelihood of success of a potential ground of review;[1]

CONSIDERING that such a determination necessarily relates to the potential merits of the request for review and as corollary the Prosecution should have the opportunity to respond;[2]