Imposed assignment

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Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media 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.  

[1] This is, moreover, the solution subsequently adopted with the introduction of Rule 82 bis of the Rules. 

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Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav

In its Decision of 21 August 2006, Trial Chamber I had appointed a defence counsel to Šešelj and clarified that the accused could participate to the proceedings only through such counsel. The accused’s personal participation could only have been allowed by the Trial Chamber after having taken “into account all circumstances and after having heard from the Counsel”.[1] The Appeals Chamber, recalling a principle laid down in the Milošević case[2], affirmed that an accused can file submissions to the Appeals Chamber in an appeal filed by his Counsel, even if the authorization of the Trial Chamber is missing.[3]

[1] Impugned Decision, para. 80.

[2] Milošević Decision on Defence Counsel, paras. 7 and 16.

[3] Decision, paras. 11-12.

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Contempt Appeal Judgement - 15.03.2010 NSHOGOZA Léonidas

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]

[1] In this respect, the Appeals Chamber notes that Nshogoza assigned power of attorney to Ms. Turner on 8 February 2008, and she appeared as his Counsel at the initial appearance. The Trial Chamber also noted that she represented him pro bono until 9 June 2008. Notwithstanding her stated intention to suspend all work on the file until formally assigned counsel under the legal aid program, she continued to represent Nshogoza and was accorded standing by the Trial Chamber as his Counsel, even during the brief assignment of Mr. Greciano as his Lead Counsel under the Tribunal’s legal aid program. See, e.g., Decision of 13 October 2008, para. 10; Trial Judgement (Annex), paras. 5, 8; Transcripts of 11 February and 28 August 2008.

[2] Article 20(4)(d) of the Statute; Rules 45 and 77(F) of the Rules; Directive on the Assignment of Defence Counsel, as amended on 15 June 2007, Article 2.

[3] See Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Judgement, 9 May 2007, para. 17 (“Blagojević and Jokić Appeal Judgement”); The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgment, 1 June 2001, paras. 61, 62; Jean Kambanda v. The Prosecutor, Case No. ICTR-97-23-A, Judgement, 19 October 2000, para. 33.

[4] Blagojević and Jokić Appeal Judgement, para. 17.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d) ICTR Rule Rule 45 ICTY Rule Rule 45