41. The Appeals Chamber considers that counsel representing an accused acts on behalf of the accused. Unless it is shown that Praljak’s counsel acted beyond their mandate or in contravention of Praljak’s instructions, submissions made by his counsel are attributable to Praljak.[1] . […].

19. The Appeals Chamber has further elaborated that a conflict of interest arises “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”.[1]

21. […] A mere listing of evidentiary documents and witness statements as proof of Salahović [Prlić’ counsel]’s political activity does not […] suffice to establish prejudice to Prlić’s interests. The Prlić Appeal does not generally connect Salahović’s interests and activities to actual or potential conflicts of interest with his client. In particular, Prlić does not provide examples of how he was potentially or actually prejudiced by the alleged conflict of interest. He does not show any basis for a potential or actual risk that Salahović’s political and personal activities would “limit the choice of defence strategies”[1] in relation to Prlić’s case.

127. The Appeals Chamber would begin by noting that Rule 45 quater of the Rules expressly states that a “Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused”. However, this rule was introduced by an amendment of 6 July 2002 and was therefore not applicable to the situation of Appellant Barayagwiza before this date. Nevertheless, the Appeals Chamber finds that Article 19(1) of the Statute already at that time allowed a Trial Chamber to instruct the Registry to assign a counsel to represent the interests of the accused, even against his will, when the accused had waived his right to be present and participate at the hearings. […]In the instant case, it was open to the Trial Chamber to fulfil this obligation by requesting the Registrar to assign counsel to represent the interests of Appellant Barayagwiza.[1] The Appeals Chamber can find no error or abuse of power on the part of the Trial Chamber.  

130. The Appeals Chamber has for long recognized, pursuant to Article 20(4)(d) of the Statute, the right of an indigent accused to be represented by competent counsel.[1] It recalls that Rule 44(A) of the Rules provides:

Subject to verification by the Registrar, a counsel shall be considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law.

Articles 13 and 14 of the Directive on the Assignment of Defence Counsel set out the qualifications and formal requirements that the Registrar must verify prior to the assignment of any counsel; the presumption of competence enjoyed by all counsel working with the Tribunal is predicated upon these guarantees. Therefore, for an appeal alleging incompetence of trial counsel to succeed, an appellant must rebut the presumption of competence of said counsel by demonstrating that there was gross professional misconduct or negligence which occasioned a miscarriage of justice.[2]

131. […] [T]he responsibility for drawing the Trial Chamber’s attention, in accordance with the appropriate procedure, to what he considers to be a breach of the Tribunal’s Statute and Rules lies in the first place with the appellant[3] who claims that his right to assistance of counsel at trial has been violated.[4] Failing that, he must establish on appeal that his counsel’s incompetence was so manifest as to oblige the Trial Chamber to act.[5] He must further demonstrate that the Trial Chamber’s failure to intervene occasioned a miscarriage of justice.

158. As to the alleged conflict of interest between Appellant Barayagwiza and his Counsel Barletta-Caldarera, the Appeals Chamber endorses the ICTY’s view that “[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”.[1]

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

In this decision, the Appeals Chamber dealt with the Prosecution’s requests to appoint an independent counsel to review potentially privileged material received from the Serbian Authorities on 22 January 2010 and 9 March 2010 for the limited purpose of determining whether any lawyer-client privilege.

7. The Appeals Chamber recalls that, pursuant to Rule 97 of the Rules, all communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure in the absence of the client’s consent or voluntary disclosure to a third party. This privilege is vital to the defence of an accused or appellant by allowing for the open communication between attorney and client necessary for effective legal assistance as guaranteed under Article 21(4)(d) of the Statute. […]

34. Article 20(4)(d) of the Statute guarantees an accused before the Tribunal the right to counsel of “his or her own choosing”. The Appeals Chamber observes that, throughout the proceedings, Nshogoza has benefited from his choice of counsel since Ms. Turner was acting on his behalf, albeit outside the framework of the Tribunal’s legal aid program, from the date of his arrest through her assignment under the program in October 2008.[1]

35. An accused who lacks the means to remunerate counsel has the right to have counsel assigned to him by the Registrar from the list drawn up in accordance with Rule 45 of the Rules.[2] The crux of Nshogoza’s complaint is not that legal aid was not made available to him, but rather that the Registrar did not promptly assign him the counsel of his choice under the Tribunal’s legal aid program. While in practice, the Registrar will take account of an accused’s preferences in assigning counsel, where an accused’s defence is being paid for pursuant to the Tribunal’s legal aid program his right to legal counsel of his own choosing from the list kept by the Registrar is not absolute.[3] It is within the Registrar’s discretion to override that preference if it is in the interests of justice.[4]

18. The Appeals Chamber emphasizes that it will not lightly intervene in the domestic jurisdiction of a state. As the Chamber seized of Ntabakuze’s appeal, however, it has the duty to ensure the fairness of the proceedings in this case. To this end, it has competence under Article 28 of the Statute of the Tribunal (“Statute”) and Rules 54 and 107 of the Rules to issue any related order. Accordingly, the Appeals Chamber will only consider whether Rwanda’s exercise of its domestic jurisdiction in Erlinder’s case threatens the fairness of the proceedings in this case. […]

19. […] The Appeals Chamber considers that Defence Counsel fall within the category of persons required at the seat or meeting place of the Tribunal and as such must be accorded such treatment as is necessary for the proper functioning of the Tribunal. The proper functioning of the Tribunal requires that Defense Counsel be able to investigate and present arguments in support of their client’s case without fear of repercussions against them for these actions. Without such assurance, Defense Counsel cannot be reasonably expected to adequately represent their clients.

20. Additionally, the Memorandum of Understanding between the United Nations and the Republic of Rwanda to Regulate Matters of Mutual Concern Relating to the Office in Rwanda of the International Tribunal for Rwanda of 3 June 1999 (“Memorandum of Understanding”),[1] which governs the privileges and immunities of the Tribunal’s operations in Rwanda, should also be taken into account. Of particular relevance to the present situation, the Memorandum of Understanding provides that the government of Rwanda shall extend:

To other persons assigned to the Office whose names shall be communicated to the Government of Rwanda for that purpose, the privileges and immunities accorded to experts on mission for the United Nations, in accordance with Article VI of the Convention.[2]

With respect to whether Defense Counsel fall within the meaning of “other persons assigned to the Office”, the Appeals Chamber notes that while Defense Counsel are not employees of the Tribunal they are assigned or appointed by the Tribunal to their positions as Defense Counsel. Furthermore, the procedures associated with Defense Counsel going on mission to Rwanda indicate that the Tribunal considers Defense Counsel to be acting in official capacity and on assignment in association with the Tribunal. For instance, Defense Counsel may request logistical support from the Tribunal while performing their missions in Rwanda.

21. The Appeals Chamber further notes that the Memorandum of Understanding sets out the rights and facilities granted to the Tribunal by the Government of Rwanda on its territory. These rights and facilities include various access rights such as the “right to question victims and witnesses, to gather evidence and all useful information and to conduct investigations in the field”.[3] The Appeals Chamber considers that, as the rights of access to undertake investigations are fundamental to the preparation of the Defence case, in concluding the Memorandum of Understanding it was contemplated that it applied to Defence Counsel as well as officials of the Tribunal. Indeed, if the Memorandum of Understanding did not extend to Defence Counsel, the right of equality of arms would be meaningless as the Defence would have no guarantee of access to potential witnesses and evidence to allow them to prepare their case.

22. In light of the procedural practice of the Tribunal as well as the purpose of the Memorandum of Understanding, the Appeals Chamber finds that Defence Counsel fall within the meaning of “other persons assigned to the Office” and therefore are to be accorded the privileges and immunities due to experts performing missions for the United Nations pursuant to Article VI of the Convention.[4]

23. This is further supported by the interpretation of the International Court of Justice as to who can be considered an expert according to Section 22 of the Convention:

The purpose of Section 22 is nevertheless evident, namely, to enable the United Nations to entrust missions to persons who do not have the status of an official of the Organization, and to guarantee them ‘such privileges and immunities as are necessary for the independent exercise of their functions’. The experts thus appointed or elected may or may not be remunerated, may or may not have a contract, may be given a task requiring work over a lengthy period or a short time. The essence of the matter lies not in their administrative position but in the nature of their mission.[5]

Applying this reasoning to Defence Counsel on mission, the Appeals Chamber concludes that they are to be considered experts on mission within the meaning of the Convention. While Defence Counsel are not officials of the Tribunal, some guarantee is necessary for the independent exercise of their Tribunal assigned functions which are integral to its functioning. Accordingly, the nature of their mission, which is to engage in preparations for proceedings before the Tribunal, is the defining factor in granting them such privileges and immunities as granted to experts on mission – not their administrative status with the Tribunal.

24. The Appeals Chamber also notes that the response of the Prosecutor General of Rwanda to the Registrar’s invocation of the Memorandum of Understanding as affording to persons carrying out functions on behalf of the Tribunal, such as Defence Counsel, the immunities provided for in Article VI of the Convention[6] reflects support for the application of the relevant provisions of the Memorandum of Understanding to Defence Counsel of the Tribunal operating in Rwanda: “[…] I wish to state on record, that [Erlinder’s] arrest is not at all related to his assignments at the ICTR and that we remain in full compliance with the provisions of the memorandum of understanding [g]overn[]ing our cooperation”.[7]

25. Article VI of the Convention provides that experts performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions. In particular, Section 22 of Article VI of the Convention, invoked in the Registrar’s note verbale of 15 June 2010,[8] provides that:

Experts (other than officials coming within the scope of Article V) performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions. In particular they shall be accorded:

(a) Immunity from personal arrest or detention and from seizure of their personal baggage;

(b) in respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind. This immunity from legal process shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations; […]

26. Accordingly, Defence Counsel benefit from immunity from personal arrest or detention while performing their duties assigned by the Tribunal and also with respect to words spoken or written and acts done by them in the course of the performance of their duties as Defence Counsel before the Tribunal, in order to allow for the proper functioning of the Tribunal in accordance with Article 29 of the Statute. […]

27. The Appeals Chamber recalls that, at the time of his arrest, Erlinder was not in Rwanda in his capacity as Ntabakuze’s Defence Counsel. He was therefore not immune from personal arrest or detention as provided for under Section 22(a) of Article VI of the Convention. Nonetheless, Erlinder benefits from immunity from legal process in respect of words spoken or written and acts done by him in the course of his representation of Ntabakuze before the Tribunal.

[…]

30.    The Appeals Chamber recalls Rwanda’s intention to respect Erlinder’s functional immunity,[9] and stresses the need to respect it. Ntabakuze’s right to a fair trial cannot be protected where Erlinder faces investigation or prosecution in Rwanda on the basis of words spoken or written in the course of his representation of Ntabakuze before the Tribunal.

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]

21. Pursuant to Article 20(4)(d) of the Statute, an accused has the right to be represented by competent counsel. Counsel is “considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law.” The Appeals Chamber recalls that Articles 13 and 14 of the Directive on the Assignment of Defence Counsel set out the qualifications and formal requirements that the Registrar must verify prior to the assignment of any counsel. The presumption of competence enjoyed by all counsel working with the Tribunal is predicated upon these guarantees. Therefore, for an appeal alleging incompetence of counsel to succeed, an appellant must rebut the presumption of competence by demonstrating gross professional misconduct or negligence on the part of the counsel which occasioned a miscarriage of justice.

22. Pursuant to Article 19(1) of the Statute, the Trial Chamber is required to guarantee a fair and expeditious trial with full respect for the rights of the accused. However, it is not for the Trial Chamber to dictate to a party how to conduct its case. Thus, where an accused claims that his right to competent assistance from counsel is violated, the onus is on the accused to bring this violation to the attention of the Trial Chamber. If the accused does not do so at trial, he must establish on appeal that his counsel’s incompetence was so manifest as to oblige the Trial Chamber to act. He must further demonstrate that the Trial Chamber’s failure to intervene occasioned a miscarriage of justice.

19. The Appeals Chamber previously explained that the matter of alleged fee-splitting had no bearing on the Trial Chamber’s decision to maintain Blagojević’s assigned counsel.[1] The Appeals Chamber nonetheless considered the nature and possible impact of such an allegation on the lawyer-client relationship “for completeness and to ensure finality”.[2] The Appeals Chamber noted that the assigned counsel did not breach any client confidence by raising the issue of fee-splitting, as he was ethically bound to bring such issues to the attention of the Registrar.[3] The Appeals Chamber also determined that this issue should not unduly impact the relationship, in particular, noting that Mr. Karnavas did not place blame on Blagojević for attempting to enter into a fee-splitting arrangement and instead explained that it resulted from “family pressures”.[4] The Appeals Chamber observed that this was consistent with Blagojević’s own explanation.[5] A review of the transcripts of the status conference pointed to by Blagojević does not, contrary to his submissions, indicate that Mr. Karnavas admitted to falsely accusing him of trying to engage in fee-splitting. Rather, Mr. Karnavas simply made clear, consistent with the submissions previously considered by the Appeals Chamber, that he never accused Blagojević himself of trying to engage in fee-splitting.[6]

21. Blagojević’s own submissions under the present ground of appeal reflect that the continued breakdown during the trial and the resulting complaints about the conduct of his defence also resulted from his unilateral refusal to communicate with his counsel, rather than from any action on the part of his counsel and Defence team.[7] The Trial Chamber’s decision on Blagojević’s request to testify is exemplary of Mr. Karnavas’s continued willingness to meet with and assist him and of Blagojević’s unilateral resistance to any cooperation.[8] The Appeals Chamber considers that an appellant cannot premise a request for a new trial on a claim of a total breakdown in communication in circumstances where the appellant unjustifiably refused to cooperate with his or her assigned counsel throughout the trial proceedings.

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]

21. The Trial Chamber characterized Mr. Nzirorera’s motion as “vexatious” and “frivolous” and noted that it showed disrespect for the Trial Chamber.[1] It then denied fees in addition to dismissing the motion.[2] The Appeals Chamber has held that the power to impose sanctions on counsel should be imposed cautiously.[3] It is most appropriate where a motion is frivolous or an abuse of process. The Appeals Chamber has previously held that there is no appeal from a decision to impose sanctions under Rule 73(F) of the Rules.[4] However, the specific situation in this instance is different. Since Judge Byron was both the Judge and subject of the underlying disclosure dispute, the Appeals Chamber considers that the decision is subject to independent review.[5]

22. A review of the pleadings underlying the Impugned Decision does not reflect that counsel for Mr. Nzirorera submitted a disrespectful or frivolous application.[6] As the Appeals Chamber held above, the Statute and Rules do not foreclose a party from seeking limited disclosure from a Judge on matters related to disqualification. In his submissions at trial and on appeal, Mr. Nzirorera pointed to one jurisdiction where providing an assessment could require a Judge to withdraw. Additionally, the Tribunal has not had the occasion to consider this issue previously. Therefore, it cannot be said that there was no good faith legal basis for making the request for disclosure. Furthermore, the Appeals Chamber has rejected the Trial Chamber’s characterization of the assessment as constituting judicial function, which was one of the reasons for describing the motion as disrespectful. In view of the foregoing, the Appeals Chamber considers that the decision to deny fees associated with the motion was unreasonable. Thus, the Trial Chamber made a discernible error in this respect.

10. Pursuant to Article 24(C) of the Directive on Assignment of Defence Counsel[1] (“Directive”),

[d]uring appellate proceedings, assigned counsel and assigned members of the defence team shall be remunerated on the basis of a maximum allotment of working hours paid at a fixed hourly rate as established in Annex I to this Directive, for the work reasonable and necessary to the preparation and presentation of the defence case.

The amount of such maximum allotment depends principally on the phase of the case and its complexity.[2] In determining the latter, the Registry generally takes into account a number of factors, including: the number and nature of the grounds of appeal; whether there is a cross-appeal; whether the appeal raises any novel legal issues; the complexity of the legal and factual issues involved; the number of documents that have to be reviewed; and the sentence imposed by the Trial Chamber. At present, different allocations of hours are as follows: Level 1 (difficult) with 1050 counsel hours and 450 support staff hours; Level 2 (very difficult) with 1400 counsel hours and 600 support staff hours; and Level 3 (extremely difficult) with 2100 counsel hours and 900 support staff hours.[3] In addition, all appeals hearing hours for counsel are reimbursed.

12. The Appeals Chamber confirms, however, that the present decision will not address the issue of allocating additional hours to Pavković’s Defence team given that it is the Registry which has the primary responsibility in the determination of matters relating to remuneration of counsel.[4] […]

14. […] [T]the Appeals Chamber reiterates that Pavković’s Counsel agreed to represent him in full awareness of the system of remuneration for assigned counsel and is bound thereby.[5] In a letter addressed to the then Acting Head of OLAD and attached to the Motion (“Letter to OLAD”), Pavković’s Counsel argues that the understanding that he “accepted this appeal assignment with full understanding that resources were limited and that [he] could not be paid for each hour worked is incorrect”. He asserts that he was in fact “never formally assigned to handle this appeal [which] just carried over from the trial”.[6] The Appeals Chamber finds these claims untenable.[7] Pavković’s Counsel is therefore under the obligation to continue working in his client’s best interests until the representation is terminated (with the completion of the proceedings or an approved withdrawal).

42. As recently recalled by the Appeals Chamber:

A participant in the International Tribunal’s legal aid system has the right to competent assigned counsel. An assigned counsel is presumed to be competent and such a presumption can only be rebutted by evidence to the contrary. Among other things, an appellant must demonstrate “gross incompetence” on the part of the assigned counsel.[1]

The Appeals Chamber further recalls that unless gross negligence is shown in the conduct of defence counsel, due diligence as a matter of professional conduct of counsel will be presumed.[2] In addition, while a Trial Chamber is required to guarantee a fair and expeditious trial with full respect for the rights of the accused (Article 20(1) of the Statute), it is not for the Trial Chamber to dictate to a party how to conduct its case. If an accused believes that his right to effective assistance is being infringed by the conduct of his counsel, it is his responsibility to draw the Trial Chamber’s attention to the problem. If this was not done at trial, he can only be successful on appeal upon showing that the counsel’s incompetence was manifest and that the Trial Chamber’s failure to intervene occasioned a miscarriage of justice.[3]

In the context of the present appeal, the Appeals Chamber examined an array of allegations concerning the alleged incompetence and/or negligence of Krajišnik’s Counsel at trial, including commencing a case when manifestly unprepared, failure to utilise the pre-trial resources allocation properly, failure to review disclosure materials adequately, failure to work full time on the case during the trial period, failure to develop or implement a defence strategy, failure to test Prosecution evidence adequately, failure to properly select Defence witnesses to be called, failure to appeal decisions, counsel’s desinterest in the case, etc., but concluded that gross professional negligence was not shown (paras 44-72, 392-415).

28. Accordingly, the Prosecution’s request for a ruling on waiver is not supported by the need to appoint an investigation or to order access. Moreover, the Appeals Chamber does not consider the requested ruling on waiver necessary, at this juncture, in order to enable Mr. Nicholas Stewart QC to testify. Insofar as Mr. Nicholas Stewart QC’s testimony may conflict with his obligations under Rule 97 of the Rules, the Appellant will be present in court to personally state whether he waives his lawyer-client privilege where necessary. The Prosecution’s request for a ruling on waiver of lawyer-client privilege at this point in time is thus dismissed. As a result, the Appeals Chamber need not address the Prosecution’s arguments on the consequences of such a waiver for the admissibility of evidence outside the trial record.[1]

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.

23.    […] At the outset, the Appeals Chamber notes that the Trial Chamber was satisfied that no confidential information that would be potentially useful to the Appellant came into Prodanović’s and Sloković’s possession through Ademi. However, in light of the findings below, the Appeals Chamber agrees with the Trial Chamber that, in the circumstances of the present case, the fact that Ademi did not provide his Counsel with any such confidential information is without bearing, since this factor is not the only basis on which a conflict of interest can be reasonably anticipated.Indeed, where a Chamber can reasonably expect that, due to a conflict of interest, a counsel “may be reluctant to pursue a line of defence, to adduce certain items in evidence, or to plead certain mitigating factors at the sentencing stage, in order to avoid prejudicing another client”, it can no longer presume that counsel has fulfilled his or her professional obligations under the Code of Conduct and has the power and the duty to intervene in order to guarantee or restore the integrity of the proceedings without delay.[3]

24.    Also, while it is true that such conflicts of interest are more obvious in cases where counsel represents two accused who are, at least partly, charged with the same criminal acts, committed during the same period of time and in the same area,[4] this is clearly not the only situation where a conflict of interest may arise. In this regard, the Appeals Chamber emphasizes that the provisions of Article 14(D)(i) and (ii) of the Code of Conduct do not require that there be substantial relationship between matters in which the current clients are represented – what is prohibited is a simultaneous representation that will, or may reasonably be expected to, adversely affect the representation of either client. [See below in “Issues of particular interest” for application in the present case (command-subordinate relationship between clients]

49.    […] In any case, in light of the Appeals Chamber’s findings above, this solution [possibility of engaging a third lawyer for the purposes of cross-examination of Ademi] would not be sufficient to satisfy the duty of loyalty to a current or former client as it would constitute too limited an understanding thereof.[5] The Appeals Chamber also agrees with the observation made in a different case that “the defence cannot be compartmentalised, as is suggested, to get around a conflict situation”.[6]

54.    […] The Trial Chamber did not consider the hardship element when ordering the Counsel to withdraw from the Appellant’s representation and the Appeals Chamber is not convinced that it was obliged to do so to the point where such an omission would constitute an abuse of discretion. The Appeals Chamber recalls that the question of prejudice was indeed discussed by the Trial and Appeal Chambers in their previous decisions related to the impact of the joinder on the Appellant’s right to have a counsel of his choice.[1] In the present instance, there is nothing that would oblige the Trial Chamber to consider this factor in relation to the conflict of interest.

55.    […] It further finds that, even though the replacement of counsel is generally likely to cause obvious inconveniences, including a delay in the proceedings, if the conflict of interests regarding the representation of the Appellant and Ademi is not resolved at the present stage of the proceedings, the administration of justice may be seriously prejudiced and have much more disastrous consequences in future.[2] The Appeals Chamber also notes that no imminent date has been established for the commencement of the trial in this case and, considering the current trial schedule of the International Tribunal,[3] it is not likely to commence within the next six months which the Appellant affirms to be necessary for the new counsel to get familiarized with the case.

32. The Appeals Chamber agrees with the Trial Chamber that the giving of consent by Markač could not cure the conflict of interest between Markač and the Appellant in relation to his position as Minister of Justice tempore criminis.[1] Consent given by a potentially affected client to remove a conflict of interest with counsel is not conclusive of there being no conflict of interest.[2] Although the Trial Chamber resolved the conflict of interest in the Simić case by consent, the Trial Chamber in the present case was not bound to follow the Simić case.[3] In any event, the present case is distinguishable from that of Simić. First, the Appeals Chamber notes that the applicable provisions are different. At the time the decision in the Simić case was rendered, the Trial Chamber applied Article 9(5) of the Code of Professional Conduct which read: […]

Article 9(5) of the Code of Professional Conduct has since been amended and currently provides, as Article 14 (E) of the Code of Professional Conduct: […]

33. The Appeals Chamber has already found that the Appellant’s further representation of Markač is likely to irreversibly prejudice the administration of justice.[4] In addition, whereas in the Simić case, all the co-accused stated that there was no conflict of interest between them and counsel, Gotovina, in the present case, has not waived his right to call the Appellant as a witness and has clearly indicated that there is, in his view, a conflict of interest.

24. As noted above, the Appellant has not denied personal knowledge of the relevant information which he has presented in his submissions that the Ministry of Justice was not responsible for the military courts. In these circumstances, the Appeals Chamber agrees with the Trial Chamber that his denial at this early stage of proceedings that it was the Ministry of Justice that was responsible for the military courts, thereby eliminating a defence strategy that was otherwise open to Markač, may be considered a significant indication of a conflict of interest. […]

38. In the present case, the Appellant, as counsel, has been found to have a personal interest on account of his previous position as Minister of Justice.[1] Further, because he has personal knowledge directly relevant to the crimes allegedly committed by the three accused in the Indictment, he is likely to be called as a necessary witness for one of the accused. Such a conflict affects the essential fairness of the trial to all accused persons in this case. Cumulatively, these factors make his continued representation of Markač incompatible with the best interests of justice. […]

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]

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]

33.    The Appeals Chamber recalls that “consent provided by a potentially affected client or former client to remove a conflict of interests upon consultation with the counsel should generally be regarded as fully informed in the absence of an indication to the contrary”.[1] However, such presumption could only be made in this case if the Appellant and Ademi had been fully conscious of all possible implications, and possible limitations that their simultaneous representation could impose upon either of their defence strategies.[2] Having examined both Undertakings, the Appeals Chamber is of the view that the Appellant has not demonstrated any discernible error in the Trial Chamber’s findings, as they did not refer to any discussion on possible implications of such dual representation on any of the defence strategies with the exception of Ademi being potentially called as a witness in the present case.

34.    The Appeals Chamber also disagrees with the Appellant’s argument that the Trial Chamber should have ordered the Counsel to present new, more satisfactory, undertakings before rendering the Impugned Decision. The Trial Chamber was under no obligation to do so since the duty to inform promptly and fully each potentially affected client (current or former) and to take all steps to remove it or to obtain the full and informed consent of the said persons lies squarely upon the counsel.[3]

35.    In any case, the Appeals Chamber recalls that such consent, even if found to be fully informed, is not conclusive of there being no conflict of interest.[4] The fact that the Appellant agreed to common representation does not relieve the Trial Chamber of its responsibility to ensure that the integrity of the proceedings would be preserved if such representation is maintained.[5] In the present case, the Trial Chamber concluded otherwise and the Appeals Chamber has found no error in such conclusion.[6] Moreover, the Appeals Chamber finds that the Appellant’s consent is in fact of no relevance to the present issue, as the point of concern is whether, by participating in the Appellant’s defence, Prodanović and Sloković will be led into conflict with their professional responsibilities to Ademi.[7]

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.  

43.     […] Moreover, the Appeals Chamber notes that Article 14(D) of the Code of Conduct prohibits a representation with an adverse effect on either of the clients, regardless of whether they are represented in matters before the International Tribunal or other jurisdictions. […]

44.     […] While the said provision [Article 14(D) of the Code of Conduct] does not seem to distinguish between the duty of loyalty to a current and a former client,[1] the Appeals Chamber observes that a conflict of interest may be more difficult to discern when it arises from the context of successive or serial representation rather than concurrent representation. Parties made extensive references to national case-law and the Appeals Chamber finds it instructive to have a brief overview of underlying principles with respect to a counsel’s duty of loyalty to a former client in national jurisdictions.

45.     According to the relevant US and UK case-law on the matter, a conflict of interest vis-à-vis a former client exists when the subject matter of the two representations are substantially related so as to put at risk the confidences received from that client.[2] It is however important to note that such conflict of interest is considered to exist in all situations “when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client”.[3] Generally, it would be a case-by-case assessment by the judiciary of the character and extensiveness of the prior representation to ensure that the interests of both former and current clients are preserved.[4] In any case, doubts as to the existence of an asserted conflict of interest with respect to a former client should be resolved in favour of disqualification.[5]

46        As a general principle in French law, apart from confidentiality issues, a counsel can only accept a new representation in which he or she may be led to plead against a former client where such new case is entirely different from the previous one, so as to fully conform to his or her duty of loyalty.[6] Similar principles are provided for by the Code of Conduct for European Lawyers, according to which a lawyer “must […] refrain from acting for a new client if there is a risk of breach of a confidence entrusted to the lawyer by a former client or if the knowledge which the lawyer possesses of the affairs of the former client would give an undue advantage to the new client”.[1]

47      While the Croatian Attorney’s Code of Ethics is only explicit with respect to prohibiting legal assistance to an adverse party in a subsequent representation, it provides for duties of faithfulness and loyalty to a client which do not necessarily cease with the end of representation.[2] In Bosnia and Herzegovina, it is impermissible to represent clients with conflicting interests, and should such a conflict (or risk of infringing the confidentiality of information or the attorney’s independence) arise during litigation, the attorney has an obligation to return the power of attorney to all the parties involved.[3]

48      Having concluded that the simultaneous representation of the Appellant and Ademi by Prodanović and Sloković raises a high risk of a conflict of interest due to the fact that the Counsel would be limited in their choice of defence strategies in order to conform to their duty of loyalty,[4] the Appeals Chamber is of the view that, even if Prodanović and Sloković withdrew from Ademi’s defence, they would still be unable to represent the Appellant to the best of his interests as they would remain bound by their duty of loyalty to Ademi as a former client.[5] This potential conflict of interest is even more contoured considering the high probability that Ademi will be called as witness in the present case.[6]

Page 4:

RECALLING the Remuneration Policy, which provides that “[f]or the purpose of this Policy, the [Mechanism] shall recognise the determination of indigency of an Accused made by the ICTR and the ICTY, unless new information is obtained which establishes that the Accused has sufficient means to remunerate Counsel”;[1]

NOTING that this provision of the Remuneration Policy addresses only a situation where a determination was made that an accused person is indigent, as is clear from the last part of the provision which refers to “new information” establishing that the accused person “has sufficient means” to remunerate counsel, not a situation where the determination was that an accused person is not indigent;

CONSIDERING, therefore, that the Remuneration Policy does not require the Registry to recognise a determination made by the ICTY that an accused is able to contribute to the costs of his defence in part;

Page 2:

[…] [C]ounsel participating in appeals proceedings are expected to familiarize themselves with the relevant procedural requirements;

Page 2

CONSIDERING that standby counsel shall have access to the inter partes record of the appeal proceedings in order to prepare for the hearing;

Pages 1-2:

RECALLING that Article 19(4)(d) of the Statute of the Mechanism provides for an alternative between the right to self-representation and the right to legal assistance, but does not entitle an accused or an appellant who is represented by counsel to self-representation;

[…]

RECALLING that assigned counsel “shall be responsible for all aspects of defence of [...] accused before the Mechanism”;[2]

CONSIDERING, however, that the Appeals Chamber may exercise its discretion to allow persons other than counsel and co-counsel to make representations before it;

[…]

FINDING that it is in the interests of justice to grant Karadžić the right of audience before the Appeals Chamber to present arguments related to the Appeal Grounds;

CONSIDERING that this finding is without prejudice to the opportunity which will be afforded to Karadžić to make a brief personal address to the Appeals Chamber at the end of the hearing of the appeals;

Pages 3, 4

RECALLING that assigned counsel are responsible for all aspects of defence in a given case before the Mechanism;[1]

RECALLING, however, that the Appeals Chamber may exercise its discretion to allow persons other than counsel and co-counsel to make representations before it;[2]

RECALLING that Ms. [Peta-Louise] Bagott was granted the right of audience for the Appeal Hearing and, appearing with the co‑counsel, made oral submissions on behalf of Mr. Mladić;[3]

CONSIDERING that […] Mr. Mladić consents to having Ms. Bagott represent him at the Pronouncement of Judgement, and that the Prosecution does not oppose this request;

RECALLING that, during the Pronouncement of Judgement, a Judge of the Appeals Chamber will read a summary of the written judgement and publicly pronounce the verdict, with no action required from the parties or counsel;[4]

[…]

FINDING that, in these circumstances, it is appropriate to exceptionally grant Ms. Bagott the right of audience before the Appeals Chamber at the Pronouncement of Judgement […];

[…]

HEREBY EXCEPTIONALLY EXTENDS Legal Consultant Ms. Bagott the right of audience to appear in court and act without either Lead Counsel Mr. [Branko] Lukić or Co-Counsel Mr. [Dragan] Ivetić being present in the courtroom for the Pronouncement of Judgement;