Misconduct (incl. absences and lateness)

Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

139. The Appeals Chamber considers that, when the accused is represented, the presence of his counsel or co-counsel at the hearing is essential. Thus, a counsel who absents himself without having ensured that his co-counsel will be present is committing gross professional misconduct. The same can be said for counsel or co-counsel absenting himself while being the only representative for the Defence of the accused and while the presentation of evidence continues (save in exceptional circumstances).[1] Furthermore, in both cases the manifest misconduct of the representatives of the accused obliges the Trial Chamber to act, for example by ordering an adjournment, and if necessary by sanctioning such behaviour.

140. […] The Appeals Chamber is of the opinion that the evidence presented in the absence of Counsel and Co-Counsel of the Appellant cannot be relied on against him,[2] and it will determine below if the findings of the Trial Chamber should be upheld in the absence of that evidence.

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[1] In this regard, the Appeals Chamber notes that the appointment of legal assistants is not subject to the verifications provided for in Rule 44(A) of the Rules and Articles 13 and 14 of the Directive on the Assignment of Defense Counsel in order to guarantee the competence of Counsel and Co-Counsel (see supra, para. 130). In the absence of such guarantees, it cannot be considered that a legal assistant in a Defence team has authority to represent the accused on the same basis as Counsel or Co-Counsel under Article 20(4)(d) of the Statute. Hence, Counsel and Co-Counsel for Appellant Barayagwiza could not validly be replaced by legal assistants. 

[2] In a recent decision, the Appeals Chamber referred back to the Trial Chamber the assessment of the prejudice resulting from continuation of the cross-examination of a witness in the absence of one of the co-accused, specifying that it falls to the Trial Chamber, if need be, to exclude the portion of the testimony taken in the appellant’s absence or to recall the witness (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.10, Decision on Nzirorera’s Motion Interlocutory Appeal concerning his Right to Be Present at Trial, 5 October 2007, para. 16). In the instant case, taking into account the impossibility of recalling the witnesses having testified in the absence of Appellant Barayagwiza and of his Counsel and Co-Counsel, the Appeals Chamber must dismiss all of the testimony against him obtained in these circumstances. 

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Notion(s) Filing Case
Vujin Contempt Appeal Judgement - 31.01.2000 TADIĆ Duško
(IT-94-1-A-R77)

171. The Respondent is on the list of assigned counsel kept by the Registrar in accordance with Rule 45. The Registrar has power pursuant to Article 20 of the Directive on Assignment of Defence Counsel to strike any counsel off that list where he or she has been refused audience by a Chamber in accordance with Rule 46, and to notify the professional body to which that counsel belongs of the action taken in relation to his or her conduct[1]. The Respondent’s conduct as found by the Appeals Chamber in these proceedings is substantially worse than that which permits the Registrar to strike counsel off the list pursuant to Article 20 of the Directive.

172. In the opinion of the Appeals Chamber, the Registrar has power generally to strike the Respondent off the list of assigned counsel because of his serious professional misconduct as demonstrated by the Appeals Chamber’s findings. A direction will therefore be given to the Registrar to consider striking the Respondent off the list and reporting his conduct as found by the Appeals Chamber to the professional body to which he belongs.

See also para. 166.

NOTE: THE VERSION OF ARTICLE 20 OF THE DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL IN FORCE AS OF JULY 2013 PROVIDES, INTER ALIA, AS FOLLOWS:

(C) The Registrar shall withdraw the assignment of counsel:

(i) upon a decision of a Chamber under Rule 46(A)(ii); or

(ii) where counsel no-longer satisfies the requirements of Article 14(A); or

(iii) where counsel has been found to be in contempt pursuant to Rule 77 of the Rules, unless the Chamber rules that the assignment should continue.

       Where the assignment of counsel has been withdrawn pursuant to Article 20(C)(ii), counsel may seek review of the Registar’s decision before the President within fifteen days from the date upon which he is notified of that decision.

(D) In such cases, the withdrawal or suspension shall be notified to the accused, to the counsel concerned, to the association of counsel of which he is a member, and to his professional or governing body.

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[1] AT THE TIME OF THIS JUDGMENT, ARTICLE 20 (B) AND (C) OF THE DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL PROVIDED:

(B)  The Registrar shall withdraw the assignment of counsel:

(i)    upon the decision by a Chamber to refuse audience to assigned counsel for misconduct under Rule 46 (A);

(ii)   where counsel no-longer satisfies the requirements of Article 14 (A).

(iii)   Under such circumstances, the Registrar may strike counsel off the list of defence counsel mentioned in Rule 45.

(C)  In such cases the withdrawal shall be notified to the accused, to the counsel concerned and to his professional or governing body.

 

FURTHER AMENDMENTS WERE MADE TO THE PROVISONS RELATED TO THE WITHDRAWAL AND SUSPENSION OF COUNSEL (ARTICLES 19 AND 20) IN THE DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL IN DECEMBER 2000, JULY 2002, AND JUNE 2006.

Download full document 		ICTY Statute Article 20(1);
Article 21(4)(d) Other instruments Directive on the Assignment of Defence Counsel