Case: IT-95-13/1-PT
THE PRESIDENT OF THE TRIBUNAL
Before:
Judge Theodor Meron, President
Registrar:
Mr Hans Holthuis
Decision of:
13 August 2003
THE PROSECUTOR
v.
Vesselin SLJIVANCANIN
_____________________________
DECISION ON ASSIGNMENT OF DEFENCE COUNSEL
_____________________________
Background
The Registry is aware that the language requirement has been waived in other cases in circumstances that might not necessarily meet the requirements of “exceptional circumstances.” Nonetheless, the Registry does not consider that the existence of past precedent should in itself constitute a valid justification to compel a waiver to the language requirement in this case. Indeed, it has been the experience of the Registry that the assignment of counsel who does not speak the working language of the Tribunal has in some occasions resulted in significant delays and adjournments. The fact that the Registry may have granted exceptions more freely in the past should not, as a matter of principle, fetter the Registrar’s discretion in the future, or otherwise compel him to perpetuate the problems encountered. The exception, indeed, should not be allowed to swallow the Rule. Accordingly, the onus should be on the accused and the counsel in question to demonstrate to the Registrar that exceptional circumstances exist that warrant the granting of an exception.7
Discussion
A. Relevant Provisions of Law
(A) Counsel engaged by a suspect or an accused shall file a power of attorney with the Registrar at the earliest opportunity. Subject to any determination by a Chamber pursuant to Rule 46 or 77, a counsel shall be considered qualified to represent a suspect or accused if the counsel satisfies the Registrar that the counsel is admitted to the practice of law in a State, or is a University professor of law, speaks one of the two working languages of the Tribunal and is a member of an association of counsel practising at the Tribunal recognised by the Registrar.
(B) At the request of the suspect or accused and where the interests of justice so demand, the Registrar may admit a counsel who does not speak either of the two working languages of the Tribunal but who speaks the native language of the suspect or accused. The Registrar may impose such conditions as deemed appropriate. A suspect or accused may appeal a decision of the Registrar to the President.
(C) In the performance of their duties counsel shall be subject to the relevant provisions of the Statute, the Rules, the Rules of Detention and any other rules or regulations adopted by the Tribunal, the Host Country Agreement, the Code of Professional Conduct for Defence Counsel and the codes of practice and ethics governing their profession and, if applicable, the Directive on the Assignment of Defence Counsel set out by the Registrar and approved by the permanent Judges.
(A) Whenever the interests of justice so demand, counsel shall be assigned to suspects or accused who lack the means to remunerate such counsel. Such assignments shall be treated in accordance with the procedure established in a Directive set out by the Registrar and approved by the permanent Judges.
(B) A list of counsel who, in addition to fulfilling the requirements of Rule 44, have shown that they possess reasonable experience in criminal and/or international law and have indicated their willingness to be assigned by the Tribunal to any person detained under the authority of the Tribunal lacking the means to remunerate counsel, shall be kept by the Registrar.
(C) In particular circumstances, upon the request of a person lacking the means to remunerate counsel, the Registrar may assign counsel whose name does not appear on the list but who otherwise fulfils the requirements of Rule 44.
(D) If a request is refused, a further request may be made by a suspect or an accused to the Registrar.
(i) he is admitted to the practice of law in a State, or is a university professor of law;
(ii) he has not been found guilty in relevant disciplinary proceedings against him where he is admitted to the practice of law or a university professor, and has not been found guilty in relevant criminal proceedings against him;
(iii) he speaks one of the two working languages of the Tribunal, except if the interests of justice do not require this;
(iv) he possesses reasonable experience in criminal and/or international law;
(v) he agrees to be assigned as counsel by the Tribunal to represent any indigent suspect or accused;
(vi) he is or is about to become a member of an association of counsel practising at the Tribunal.
(A) The suspect whose request for assignment of counsel has been denied may, within fifteen days of the date of notification to him, seek the President’s review of the decision of the Registrar. The President may either confirm the Registrar’s decision or decide that a counsel should be assigned.
(B) The accused whose request for assignment of counsel has been denied, may, within two weeks of the date of notification to him, make a motion to the Chamber before which he is due to appear for immediate review of the Registrar’s decision. The Chamber may
(i) confirm the Registrar’s decision; or
(ii) rule that the suspect or accused has means to partially remunerate counsel, in which case it shall refer the matter again to the Registrar for determination of which parts shall be borne by the Tribunal; or
(iii) rule that a counsel should be assigned.
B. Who Reviews the Registrar’s Decision?
C. The Merits
1. The Right to Counsel of One’s Own Choosing
2. Standard of Review of the Registrar’s Decision
Judicial review of an administrative decision by the Registrar... is concerned initially with the propriety of the procedure by which the Registrar reached the particular decision and the manner in which he reached it. The administrative decision will be quashed if the Registrar has failed to comply with the legal requirements of the Directive.... The administrative decision will also be quashed if the Registrar has failed... to act with procedural fairness towards the person affected by the decision, or if he has taken into account irrelevant material or failed to take into account relevant material, or if he has reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached.... there can be no interference with the margin of appreciation of the facts or the merits of that case to which the maker of such an administrative decision is entitled.15
Whether the Registrar’s determination of what the “interests of justice” require is entitled to an equal degree of deference is less clear.
3. Mr. Petronijevic and Mr. Bulatovic
Disposition
Done in English and French, the English text being authoritative.
Dated this 13th day of August 2003,
At The Hague,
The Netherlands.
______________
Judge Theodor Meron
President
[Seal of the Tribunal]
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