This interlocutory appeal decision turned on whether it constituted a conflict of interest for Mr. Jovan Simić to act as counsel for both Željko Mejakić, one of the accused in the case of Prosecutor v. Mejakić et al., and Dragoljub Prcać, an accused in the case of Prosecutor v. Kvočka et al. The Prosecution submitted that should the accused Prcać be called to testify in the Mejakić et al. case, it would be difficult for Mr. Simić, as counsel for both accused, to reconcile his duty to protect the interests of each accused. The Appeals Chamber held as follows:

7. The Registrar has the primary responsibility of determining matters relating to the assignment of counsel under the legal aid system. The Trial Chamber, however, considered that it had a statutory obligation to ensure a fair and expeditious conduct of the proceedings, and that from this obligation it derived the power to decide on the Prosecution’s motion alleging a conflict of interest.[1] The approach of the Trial Chamber is consistent with the Appeals Chamber’s decision in the case Prosecutor v. Blagojević of 7 November 2003.[2] In that decision, the Appeals Chamber confirmed that the Trial Chamber has an inherent power to ensure that the trial of an accused is fair. However, the Appeals Chamber warned that in exercising this power the Trial Chamber cannot appropriate for itself a power that is conferred elsewhere.[3] The Directive on Assignment of Defence Counsel[4] does not provide any specific procedure for the removal of Defence Counsel in the case of a conflict of interest at the request of the Prosecution, and as such, the Trial Chamber could rely on its inherent power to review the assignment of Mr. Simić.

8. The right to choose counsel is a fundamental right of the accused and is recognized by Article 21(4) (b) and (d) of the Statute of the International Tribunal (“Statute”). However, this right is not without limits. The Appeals Chamber has on several occasions stated that “the right to free legal assistance by counsel does not confer the right to counsel of one’s own choosing.”[5] One of the limits to the accused’s choice is a conflict of interest affecting his counsel. Under Article 14 of the Code of Conduct,[6] a counsel may not represent a client when this representation affects or can affect the representation of another client. [….]

This requirement is reflected by Article 16 (E) of the Directive on Assignment of Defence Counsel:

E.         No counsel shall be assigned to more than one suspect or accused at a time, unless an assignment to more than one suspect or accused would neither cause prejudice to the defence of either accused, nor a potential conflict of interest. [THIS PROVISION WAS AMENDED WITH THE ENTRY INTO FORCE ON 11 JULY 2006 OF THE DIRECTIVE ON THE ASSIGNMENT OF DEFENCE COUNSEL, IT/73 Rev 11. AS AMENDED.]

Mr. Simić had acknowledged a potential conflict of interest and, following the procedure laid out under Article 14 of the Code of Conduct, obtained the written consent of both Mr. Mejakić and Mr. Prcać to represent each of them.

[…]

12. The Appeals Chamber finds that a conflict of interests does exist at the present stage of  the proceedings. It is not contested that Mr. Mejakić was the direct superior of Mr. Prcać in the Omarska camp. Mr. Mejakić is charged with crimes committed in the Omarska camp under Article 7 (1) of the Statute for participating in a joint criminal enterprise. In addition, he is charged under Article 7 (3) of the Statute, on the basis that he was the commander of the camp and had effective control over the guard shift commanders, camp guards, and other persons working within or visiting the Omarska camp. Further, the Prosecution claims that Mr. Prcać has given evidence incriminating Mr. Mejakić in an interview with the Prosecution in the Kvočka et al. case. It was for this reason that the Trial Chamber considered Mr. Prcać’s evidence significant and allowed the Prosecution to include Mr. Prcać in its witness list.[7]

[…]

14. The Appeals Chamber further finds that, if the conflict of interest regarding the representation of Mr. Prcać and Mr. Mejakić is not resolved at the present stage of proceedings, the administration of justice may be irreversibly prejudiced. The Appeals Chamber considers that the conflict of interest is an important one. The Trial Chamber noted in its First Decision that Mr.  Mejakić did not deny that he was in a position of authority at the Omarska camp, and that he acknowledged that Mr. Prcać spent some time there under his command.[8] Mr. Mejakić is charged with command responsibility under Article 7(3) of the Statute. Mr. Prcać may give evidence on the command structure of the Omarska camp as well as on the particular offences committed in this camp. The evidence given by Mr. Prcać may therefore have a significant impact on the trial of Mr. Mejakić.

15. The decision by Mr. Prcać whether to cooperate with the Prosecution has to be taken presently, and it may impact on the potential benefits for Mr. Prcać and on the conduct of the Mejakić trial. Moreover, the conflict of interest may influence the Defence strategy of Mr. Mejakić, for example, by preventing his counsel from calling certain witnesses in order not to prejudice the interests of Mr. Prcać. There is finally the risk that Mr. Simić might withdraw in the course of the trial because of the conflict of interest, thus delaying the proceedings. For these reasons also the Appeals Chamber finds that the representation of both Mr. Mejakić and Mr. Prcać by Mr. Simić is likely to irreversibly prejudice the administration of justice.

10. It has been repeatedly emphasized that the right to legal assistance financed by the Tribunal does not confer the right to counsel of one’s choosing.[1] When deciding on the assignment of counsel, some weight is accorded to the accused’s preference, but such preference may be overridden if it is in the interests of justice to do so.[2] The Appeals Chamber further recalls that an indigent accused does not have a right to a co-counsel, but, where appropriate and at the request of the lead counsel, the Registrar may appoint a co-counsel to assist the assigned lead counsel.[3] Accordingly, where co-counsel has been appointed and subsequently withdrawn, there is no guarantee that the co-counsel will be replaced.[4] Finally, the Appellant’s personal preferences are irrelevant to assignment or withdrawal of co-counsel.[5]

14. The Appeals Chamber ultimately confirmed that as a participant in the International Tribunal’s legal aid program, Blagojević did not have the absolute right to choose his counsel;[1] that the Registrar had properly assigned competent counsel committed to representing Blagojević’s interests;[2] that good cause did not exist for removing his duly assigned defence team;[3] and that he was not justified in unilaterally refusing to cooperate with his lawyers.[4] […]

17. Blagojević submits that the Trial Chamber violated his right to counsel of his choice when it refused to replace his entire defence team after the breakdown in trust and communication between him and his assigned counsel. This submission consists of two principal arguments. First, Blagojević maintains that, even as a participant in the International Tribunal’s legal aid system, he has a right to counsel of his choice. This argument has no merit. An accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him by the Registrar from the list drawn up in accordance with Rule 45(B), provided that there is no impediment to the assignment of that counsel.[5] While there is the additional limitation placed on the right of an indigent accused to choose counsel in so far as the choice is limited to the list of counsel maintained in accordance with Rule 45, as previously explained in this case, the Registrar normally takes account of an accused’s preferences in assigning counsel, as was done in the present case, but it is also within the Registrar’s discretion to override that preference in the interests of justice.[6] Once counsel has been properly assigned, as was the case here, counsel has a professional obligation to continue representing the accused and may only be withdrawn or replaced, if sufficient cause exists.[7]

55. The Appeals Chamber reiterates that “[o]ne of the limits to the accused’s choice [of counsel] is a conflict of interest affecting hiscounsel”.[1]

Regarding the Accused’s right to choose counsel, the Appeals Chamber, at para. 30, recalled that

[…] while the right to choose counsel is a fundamental right under Article 21(4)(b) and (d) of the Statute, this right is not without limits.[1] An accused may choose counsel, but this right does not guarantee that counsel will accept if chosen or always remain counsel for that accused due to a perceived conflict of interests that may arise or for any other reason. As previously stated by the Appeals Chamber, “[o]ne of the limits to the accused’s choice is a conflict of interest affecting his counsel.”[2]

36.     In considering Uwinkindi’s complaint of an alleged breach of his right to choose his counsel, the Trial Chamber recalled that the Appeals Chambers of the ad hoc Tribunals have consistently recognised that individuals lacking the means to remunerate counsel do not have an absolute right to a counsel of their own choosing.[1] […] Consistent with international human rights law and the case law of the ad hoc Tribunals, this right is necessarily subject to certain limitations where, as in the present case, free legal aid is relied upon and the interests of justice require the accused to be defended by counsel assigned to him despite his wishes.[2]

37.     […] The Appeals Chamber considers that avoiding interruptions or adjournments corresponds to an interest of justice which may well justify the appointment of counsel against the accused’s wishes.[3] […]

See also paragraph 38.