Unity of identity between client and counsel

Notion(s) Filing Case
Decision on Additional Evidence - 16.10.1998 TADIĆ Duško

6.       Material not called by Defence counsel


65.     As indicated above, when evidence was not called because of the advice of defence counsel in charge at the time, it cannot be right for the Appeals Chamber to admit additional evidence in such a case, even if it were to disagree with the advice given by counsel. The unity of identity between client and counsel is indispensable to the workings of the International Tribunal. If counsel acted despite the wishes of the Appellant, in the absence of protest at the time, and barring special circumstances which do not appear, the latter must be taken to have acquiesced, even if he did so reluctantly[1]. An exception applies where there is some lurking doubt that injustice may have been caused to the accused by gross professional incompetence. Such a case has not been made out by the Appellant. Consequently, it cannot be said that the witnesses and material were not available to the Appellant despite the exercise of due diligence.

[RULE 115 OF THE ICTY RULES WAS SUBSEQUENTLY AMENDED ON 12 July 2002, 30 September 2002, and 21 July 2005]

[1]           The Directive on Assignment of Defence Counsel, IT/73/Rev. 5, provides for an accused person who is dissatisfied with his counsel to seek redress. Such redress includes requesting withdrawal of a defence counsel and assignment of new counsel (see Article 20).

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ICTR Rule Rule 115 ICTY Rule Rule 115