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.

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.

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).