Alleging incompetence of trial counsel on appeal

Notion(s) Filing Case
Appeal Judgement - 18.03.2010 BIKINDI Simon

29. […] the Appeals Chamber finds that the Appellant should have raised the issue of the Co-Counsel’s competence at trial. However, as noted above, the Appellant is not precluded from raising the issue for the first time on appeal. As such, he must establish on appeal that his counsel’s incompetence was so manifest as to oblige the Trial Chamber to intervene and he must further demonstrate that the Trial Chamber’s failure to act occasioned a miscarriage of justice.

44. […] The Appeals Chamber considers that the manner in which counsel structures a cross-examination is a matter of defence strategy which rests squarely within the discretion of the defence. This is consistent with the general principle that it is is not for the Trial Chamber to dictate to a party how to conduct its case.[3] Furthermore, the Appeals Chamber cannot analyse defence strategy in a vacuum after the completion of trial, nor would it be appropriate for the Appeals Chamber to do so. It follows that it is not sufficient for the Appellant merely to assert after the completion of trial that his Co-Counsel was incompetent because he did not adopt a different approach during the cross-examination of a given witness. At a minimum, the Appellant should demonstrate how a different approach would have had a positive impact on the verdict.

[1] See supra [Trial Judgement, Annex A – Procedural History] para. 22.

[2] See supra para. 22.

[3] Krajišnik Appeal Judgement, para. 42.

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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