Role of counsel

Notion(s)	Filing	Case
Briefs and/or Motions \| Time limits \| Role of counsel	Decision on Motions to Strike - 04.02.2016	UWINKINDI Jean (MICT-12-25-AR14.1)
9. The Appeals Chamber notes that Uwinkindi understands neither English nor French.[1] However, the Pre-Appeal Judge has previously found that Uwinkindi’s counsel can work in English and is able to discuss the contents of legal documents with his client.[2] Moreover, the Appeals Chamber reiterates that, on appeal, counsel bear the main burden in preparing submissions,[3] allowing sufficient time to discuss relevant issues with their clients,[4] as well as ensuring the timely submission of all pleadings. The determination of potential grounds of appeal falls primarily within the purview of counsel and good cause for extending a deadline to file a notice of appeal is normally not present where the judicial determination, which is the subject of the appeal, is made in a language in which counsel can work.[5] Accordingly, Uwinkindi has not shown the existence of good cause warranting the late filing of his Notice of Appeal. show footnotes [1] Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25-R14.1, Decision on Jean Uwinkindi’s Motion for Translation of the Prosecution’s Response, 16 September 2015, p. 1. [2] [Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25-AR14.1,] Decision on Applications for Translations and Extensions of Time, 17 December 2015, p. 3. [3] See Augustin Ndindiliyimana et al. v. The Prosecutor, Case No. ICTR-00-56-A, Decision on Bizimungu’s Motion for Extension of Time to File His Reply Brief, 8 March 2012, p. 2, referring to, inter alia, Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Motions for Extension of Time, 9 December 2004, p. 3. [4] Cf. Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Prosper Mugiraneza’s Motion for Extension of Time to File His Appellant’s Brief, 26 January 2012, para. 10. [5] Cf. Augustin Ndindiliyimana et al. v. The Prosecutor, Case No. ICTR-00-56-A, Decision on Motions for Extension of Time for the Filing of Appeal Submissions, 11 July 2011, paras. 9, 15; Pauline Nyiramasuhuko et al. v. The Prosecutor, Case No. ICTR-98-42-A, Decision on Motions for Extension of Time for the Filing of Appeal Submissions, 25 July 2011, para. 5. Download full document
Notion(s)	Filing	Case
Counsel \| Role of counsel	Appeal Judgement - 20.10.2010	KALIMANZIRA Callixte (ICTR-05-88-A)
32. The Appeals Chamber can identify no error in the Trial Chamber’s decision not to postpone the commencement of trial in the absence of Kalimanzira’s lead counsel. As the Trial Chamber noted, the purpose of a co-counsel is not only to assist the lead counsel but indeed to conduct the case in order to allow the proceedings to continue in the event of an unforeseeable absence of the lead counsel. A review of the record reflects that the Trial Chamber was mindful of the additional difficulties that this situation imposed on the Defence and accommodated these by, inter alia, postponing the cross-examination of the first five witnesses.[1] show footnotes [1] See supra [Kalimanzira Appeal Brief] paras. 28, 29. Download full document
Notion(s)	Filing	Case
Fitness to stand trial \| Motions to vacate \| Communication with Counsel \| Role of counsel \| Burden of proof	Public Redacted Version of the "Decision on a Motion to Vacate the Trial Judgement and to Stay Proceedings" Filed on 30 April 2018 - 08.06.2018	MLADIĆ Ratko (MICT-13-56-A)
Page 3: CONSIDERING that the determination of Mladić’s request for a stay of the proceedings rests on the determination of his [REDACTED] fitness;^{^[1]} CONSIDERING that fitness to participate in proceedings is related to Article 19(4)(b) of the Statute of the Mechanism (“Statute”), which stipulates that an accused shall be entitled to, inter alia, “communicate with counsel of his or her own choosing”;^{^[2]} RECALLING that the standard of fitness is that of meaningful participation, allowing the accused to exercise his or her fair trial rights to such a degree as to be able to participate effectively in and understand the essentials of the proceedings, and that an accused’s fitness should turn on whether his or her capacities, “viewed overall and in a reasonable and common sense manner, are at such a level that it is possible for him or her to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights” (“Standard of Fitness”);[3] RECALLING that the Standard of Fitness applies mutatis mutandis to appeal proceedings as it involves an appellant’s fitness to exercise his or her right to consult with counsel concerning the preparation of appellate submissions;^{^[4]} CONSIDERING that processing the wealth of complex information inherent in international criminal proceedings is the role of defence counsel, in order to advise their clients;^{^[5]} CONSIDERING that an appellant claiming to be unfit to participate in proceedings bears the burden of so proving by a preponderance of the evidence;^{^[6]} show footnotes [1] See Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Public Redacted Version of 30 November 2012 Decision on Request to Terminate Appellate Proceedings in Relation to Milan Gvero, 16 January 2013 (“Popović et al. Decision of 16 January 2013”), paras. 21-30. [2] See Article 19(4)(b) of the Statute (emphasis added). In this regard, the accused’s ability to participate is clearly contingent upon whether he or she possesses the mental capacity to understand the proceedings and the mental and/or physical capacity to communicate, and thus consult, with his or her counsel. Prosecutor v. Vujadin Popović et al., Case No. IT‑05‑88‑A, Public Redacted Version of 13 December 2010 Decision on Motion by Counsel Assigned to Milan Gvero Relating to his Present Health Condition, 16 May 2011 (“Popović et al. Decision of 16 May 2011”), para. 11. [3] See Popović et al. Decision of 16 January 2013, para. 21; Popović et al. Decision of 16 May 2011, para. 11; Strugar Appeal Judgement, paras. 41, 55. [4] See Popović et al. Decision of 16 January 2013, para. 21; Popović et al. Decision of 16 May 2011, para. 11. [5] See Popović et al. Decision of 16 January 2013, para. 22. See also Prosecutor v. Pavle Strugar, Case No. IT‑01‑42‑A, Judgement, 17 July 2008 (“Strugar Appeal Judgement”), paras. 55, 60. The ICTY Appeals Chamber in the Strugar case emphasized that “fitness to stand trial should be distinguished from fitness to represent oneself. An accused represented by counsel cannot be expected to have the same understanding of the material related to his case as a qualified and experienced lawyer. Even persons in good physical and mental health, but without advanced legal education and relevant skills, require considerable legal assistance, especially in cases of such complex legal and factual nature as those brought before the Tribunal”. See Strugar Appeal Judgement, para. 60. See also Popović et al. Decision of 16 May 2011, para. 13, where the ICTY Appeals Chamber considered that counsel may file a notice of appeal on the appellant’s behalf, on the basis that a variation of the grounds of appeal might be sought later in light of the appellant’s alleged present incapacity. [6] See Popović et al. Decision of 16 January 2013, para. 21. See also Strugar Appeal Judgement, para. 56. Download full document
Notion(s)	Filing	Case
Accused represented by Counsel \| Assistance of counsel \| Communication with Counsel \| Counsel \| Instructions from the accused \| Judgement \| Participation by video-conference \| Physical presence \| Representation by co-counsel \| Role of counsel \| Pronouncement of Judgement	Decision on Defence Urgent Motion to Postpone Pronouncement of Judgement - 28.05.2021	MLADIĆ Ratko (MICT-13-56-A)
Page 3 RECALLING that counsel have an obligation to represent their client and to comply with orders of the Appeals Chamber,[16] and that, where the client is represented by counsel and co-counsel, either one may assume the responsibility for participating in proceedings;[17] […] CONSIDERING that, notwithstanding Co-Counsel’s unavailability, the Defence has failed to demonstrate that Mr. Mladić or his Lead Counsel cannot be present for the Pronouncement of Judgement, in court or via videoconference;[19] […] CONSIDERING that […] Mr. Mladić has been able to communicate with his legal team and provide instructions following the issuance of the Scheduling Order, and in doing so he, inter alia, “spoke definitively” and “provided his unwavering position”;[21] FINDING that, in light of the considerations above, the Defence has failed to justify the request to stay the Pronouncement of Judgement and postpone it until a time when both counsel can be present in court in person with Mr. Mladić; […] show footnotes [16] See [Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A,] Decision on a Defence Motion to Reconsider the “Decision on Defence Submissions”, 20 August 2020 (“Decision of 20 August 2020”), p. 3, n. 17; [Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A,] Decision on Defence Submissions, 14 August 2020 (“Decision of 14 August 2020”), p. 5, n. 30 and references cited therein. [17] See Decision of 20 August 2020, p. 3, n. 17; Decision of 14 August 2020, p. 5, n. 31 and references cited therein. [19] [Footnote omitted]. [21] [Footnote omitted]. Download full document		IRMCT Rule Rule 144(D)
Notion(s)	Filing	Case
Appeals \| Appellate proceedings \| Accused represented by Counsel \| Counsel \| Judgement \| Pronouncement of Judgement \| Role of counsel \| Right of audience \| Legal Consultant	Mladic Decision on Request for Right of Audience - 03.06.2021	MLADIĆ Ratko (MICT-13-56-A)
Pages 3, 4 RECALLING that assigned counsel are responsible for all aspects of defence in a given case before the Mechanism;[1] RECALLING, however, that the Appeals Chamber may exercise its discretion to allow persons other than counsel and co-counsel to make representations before it;[2] RECALLING that Ms. [Peta-Louise] Bagott was granted the right of audience for the Appeal Hearing and, appearing with the co‑counsel, made oral submissions on behalf of Mr. Mladić;[3] CONSIDERING that […] Mr. Mladić consents to having Ms. Bagott represent him at the Pronouncement of Judgement, and that the Prosecution does not oppose this request; RECALLING that, during the Pronouncement of Judgement, a Judge of the Appeals Chamber will read a summary of the written judgement and publicly pronounce the verdict, with no action required from the parties or counsel;[4] […] FINDING that, in these circumstances, it is appropriate to exceptionally grant Ms. Bagott the right of audience before the Appeals Chamber at the Pronouncement of Judgement […]; […] HEREBY EXCEPTIONALLY EXTENDS Legal Consultant Ms. Bagott the right of audience to appear in court and act without either Lead Counsel Mr. [Branko] Lukić or Co-Counsel Mr. [Dragan] Ivetić being present in the courtroom for the Pronouncement of Judgement; show footnotes [1] See Directive on the Assignment of Defence Counsel, MICT/5, 14 November 2012, Article 16(B); Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A, Decision on Karadžić’s Request to Participate in the Appeal Hearing, 27 February 2018 (“Karadžić Decision of 27 February 2018”), p. 2. [2] See Karadžić Decision of 27 February 2018, p. 2, n. 11 and references cited therein. [3] See [Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A], T. 25 August 2020 pp. 4, 5, 14-24, 27-40, 60-64; T. 26 August 2020 pp. 2, 43, 44, 59-73, 86-97. [4] [Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A, Decision on Defence Urgent Motion to Postpone Pronouncement of Judgement, 28 May 2021], p. 3. See also Rule 144(D) of the Rules of Procedure and Evidence of the Mechanism. Download full document		IRMCT Rule Rules 144(D)