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.  

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]