Trial and error - How effective is legal representation in international criminal proceedings?

International Criminal Law Review

Volumn 5, Issue 1, 2005, Pages 1-82

  Buisman, Caroline ^a   Gumpert, Ben ^b   Hallers, Martine ^c  

^a ICTY   (Netherlands)

^b Dutch Office of the Prosecution at the Court of Appeal ^*  (United Kingdom)

^c Dutch Office of the Prosecution at the Court of Appeal   (Netherlands)

Author keywords

[No Author keywords available]

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EID: 33645006053     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/1571812053320110     Document Type: Article

References (255)

1. Drago Josipovic filed a Motion for Review on the ground that new evidence demonstrated that he was not involved in the crimes alleged. The Motion was, however, rejected in: Drago Josipovic v. The Prosecutor, IT-95-16-R2, Decision on Motion for Review, 7 March 2003.
2. The Prosecutor v. Kupreskic and others, IT-95-16-A Decision on the Admission of Additional Evidence Following Hearing of 30 March 2001, 11 April 2001.
3. Letter from Alain de Brouwer to Madame Carla DEL PONTE, 12 January 2001, unpublished.
4. See for similar arguments: Elise Groulx: The challenge of competent representation before the ICC [December 2002], at
5. Caroline Buisman: Defence and Fair Trial, in Roelof Haveman, Olga Kavran, Julian Nicholls [eds.]: Supranational Criminal Law: a System Sui Generis, intersentia 2003, Chapter VI.
6. Fuller and possibly more contentious definitions of the right to conduct a defence have been suggested. See for example Amnesty International, Making the Right Choices - II, Organizing the court and ensuring a fair trial, July 1997, AI Index: IOR 40/11/97: "This right to conduct a defence has at least eight elements, in addition to the right to adequate time and facilities.... These elements include: - the right to be tried in one's presence; - the right to defend oneself in person; - the right to defend oneself through legal assistance;-the right to chose one's counsel; - the right to be informed, if one does not have legal assistance, of the right to such assistance; - the right to assignment of counsel in any case where the interests of justice so require; - the right to assignment of counsel without payment if one is indigent; and - the right to competent counsel and effective representation. "
7. Elise Groulx: "La création d'un Barreau pénal international: Historique, cadre légal et questions clés, Chapter 2, Conference paper presented at the Paris Conference 6-7 December 2001: The Creation of an International Criminal Bar before the International Criminal Court, at .
8. Ties Prakken, Beginselen van een goede verdediging (oratie Maastricht), Gouda Quint Deventer 1999, p. 25.
9. See also L. C. M. Meijers' critique of Prakken's work in the journal Delikt en Delinkwent 2000-30(7), p. 709.
10. David Luban: Lawyers and Justice, an Ethical Study, as quoted by John Philpot & Andre Tremblay in: Jean-Paul Akayesu v. The Prosecutor, ICTR-96-4-A, Akayesu's brief in respect of the Appeals Judgement, Chapter 4, par. 22.
11. For an insight into French Pre-trial system see J. Bell, The French Pre-trial System in C. Walker and K. Starmer (eds.), Miscarriages of Justice: A Review of Justice in Error, Blackstone's Press, London 1999, pp. 354-376. In the Netherlands, the role of the pre-trial judge has diminished over the years, while the competence of the prosecutor has increased. In Germany the pre-trial judge has been abolished, but there is still some judicial control during the investigation.
12. For similar distinctions and discussions on civil law and common law, see Caroline Buisman: Defence and Fair Trial, in Roelof Haveman, Olga Kavran, Julian Nicholls [eds.]: Supranational Criminal Law: a System Sui Generis, intersentia 2003, Chapter VI, pp. 169-170.
13. C. Safferling: Towards an international criminal procedure, Oxford University Press 2001: "Clearly, this is not the real situation and, as practice shows, the Continental judge often sides with the prosecutor, with the two of them appearing, in crass cases, almost as party. A distinction should therefore not be made between the two systems with regard to the necessity of legal counsel for the defendant.", p. 112.
14. ICTYRule 47; ICTR Rule 47.
15. ICTYRule 67; ICTR Rule 67.
16. Hans Bevers & Chantal Joubert (eds.): An Independent Defence before the International Criminal Court, Proceedings of the Conference held in The Hague, 1-2 November 1999
17. Thela Thesis, Series Criminal Sciences, Amsterdam 2000, pp. 43-53 and 175.
18. The Prosecutor v. Delalic et al. IT-96-21-PT, Preliminary Judgement, 17 March 1997.
19. Jean Kambanda v. The Prosecutor, ICTR 97-23-A, Appeals Judgement, 19 October 2000, par. 34, adopted verbatim in the case of Jean-Paul Akayesu v.
20. The Prosecutor, ICTR-96-4-A, Appeals Judgement, 1 June 2001, par. 76.
21. Jean-Paul Akayesu v. The Prosecutor, ICTR-96-4-A, Appeals Judgement, 1 June 2001, par. 60.
22. .
23. The Prosecutor v. Milutinovic and others, IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, Appeals Chamber, 13 November 2003, par. 19-20.
24. See the letter of Alain de Brouwer to Carla Del Ponte, 12 January 2001, p. 3: "Même si, lors de son isolement à DODOMA, Jean KAMBANDA avait répété avec conviction que « la défense c'est d'abord moi», la désignation tardive et pré cipitée d'un avocat non choisi, ne connaissant pas le kinyarwanda et à peine le français, ne semble guère avoir contribué au déroulement d'un procès équitable, tel que défini au cours de votre conférence à FRIBOURG, à savoir un procès qui offre « un équilibre entre la guarantie maximale des droits de l'accusé et l'ndispensable efficacité de la justice »." Free translation into English: "Even though, during his isolation in DODOMA, Jean Kambanda had repeated with conviction that 'the defence, that was first of all himself, the late appointment of a counsel not of his choice, who was not familiar with Kinyarwanda and hardly with French, does hardly seem to contribute to the ongoing development of a fair trial as defined during your conference in Fribourg, that is, a trial which offers 'a balance between a maximum guarantee of the rights of the accused and the indispensable efficiency of justice'."
25. The Prosecutor v. Pauline Nyiramusuko and Arsene Ntahobali, ICTR-97-21-T, Decision on the Motion on the Decision of a Request for Assignment of Counsel, 13 March 1998, p. 6.
26. Amoratorium to that effect was introduced on 18 November 1998. For criticism in respect of this moratorium, see Stuart Beresford & Hafida Lahiouel: The Right to be Defended in Person or Through Legal Assistance and the International Criminal Court, in 13 Leiden Journal of International Law (2000) 949-984, at pp. 974-976;
27. Caroline Buisman: Defence and Fair Trial, in Roelof Haveman, Olga Kavran, Julian Nicholls [eds.]: Supranational Criminal Law: a System Sui Generis, intersentia 2003, Chapter VI, p. 225;
28. and Elise Groulx: The challenge of competent representation before the ICC [December 2002], at , p. 13.
29. The Prosecutor v. Bicamumpaka, ICTR-99-50-I, Decision on the Motion Requesting the Assignment of Francine Veilleux as Defence Counsel for Jérôme Clément Bicamumpaka, 6 Oct. 1999, par. 11.
30. Akayesu v. The Prosecutor, ICTR-96-4-A, Appeals Judgement, 1 June 2001, par. 62.
31. The ICTR has refused requests by defendants seeking to change counsel and to appoint counsel not on the list. See The Prosecutor v. Nyiramasuhuko and Ntahobali, ICTR-97-21-T, Decision on a Preliminary Motion by the Defence for the Assignment of a Co-counsel to Pauline Nyiramasuhuko, 13 March 1998, par. 16.
32. Akayesu v. The Prosecutor, ICTR-96-4-A, Appeals Judgement, 1 June 2001, par. 61.
33. See for a similar reasoning: The Prosecutor v. Elizaphan and Gérard Ntakirutimana, ICTR-96-10-T and ICTR-96-17-T, Decision on the Motion of the Defence for the Assignment of Co-counsel for Elizaphan Ntakirutimana, 13 July 2001, p. 3, par. 12: "neither human rights law nor the provisions and case law of this tribunal gives an accused an unfettered right to choose assigned counsel."
34. Akayesu v. The Prosecutor, ICTR-96-4-A, Appeals Judgement, 1 June 2001, par. 64. The Appeals Chamber analysed the factual situation and held that Akayesu had exercised his choice and since he had changed counsel, it became justified for the Appeals Chamber to override his choice and to assign counsel. In Martic (see below) the Chamber interpreted Akayesu to mean that the registrar must respect free choice unless there are overriding reasons to reject the choice of the accused.
35. The Prosecutor v. Milan Martic IT-95-11-PT, Decision on Appeal against Decision of Registry, 2 August 2002, p. 4.
36. On the difficulty of reconciling respect for the free choice of a defendant with protecting him against possible consequences of a conflict of interests, see The Prosecutor v. Milan Martic, ICTYIT-95-11-PT, Decision on Appeal against Decision of Registry, 2 August 2002. In this case the registrar suspended the mandate of counsel chosen by the defendant on the grounds of a conflict of interests and sought to impose a replacement. The Chamber found that the defendant's consent to continuing representation by his counsel of choice, made in full knowledge of the matter in question effectively resolved the conflict of interests and that the defendant's choice of counsel should prevail over the concerns of the registrar.
37. The Prosecutor v. Jean Bosco Barayagwiza ICTR 97-19-T, Decision on Defence Counsel Motion to Withdraw, 2 November 2000.
38. The Prosecutor v. Jean-Bosco Barayagwiza, Case No. ICTR-97-19-T, Decision on Defence Counsel to Withdraw, 2 November 2000, par. 21.
39. The Prosecutor v. Slobodan Milosevic, IT-02-54-I, Orders Inviting Designation of Amicus Curiae of 30 August 2001, 30 October 2001, 23 November 2001 and 11 January 2002.
40. The Prosecutor v. Slobodan Milosevic, IT-02-54-T, Reasons for Decision on Assignment of Defence Counsel, 22 September 2004, par. 1.
41. The Prosecutor v. Milosevic, IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defense Counsel, 1 November 2004.
42. The Trial Chamber had decided that the accused may continue to participate actively in the conduct of his case with the leave of the Trial Chamber only and: "[s]hould the Accused fail to cooperate with counsel, the trial will nonetheless proceed." The Prosecutor v. Slobodan Milosevic, IT-02-54-T, Reasons for Decision on Assignment of Defence Counsel, 22 September 2004, pars. 69-70.
43. The Prosecutor v. Mlosevic, IT-02-54-T, Decision on Assigned Counsel's Motion for Withdrawal, 7 December 2004.
44. See for instance ECHR 21 April 1998, Daud v. Portugal, 30 European Human Rights Reports (EHHR) 400, Reports of Judgements and Decisions 1998-II, HUDOC REF00000784, and ECHR 10 October 2002
45. Czekalla v. Portugal, ECHR LTL10/10/02 (Lawtel), Reports of Judgements and Decisions 2002-VIII, HUDOC REF00003822.
46. ECHR 25 April 1983
47. Pakelli v. Germany, 6 European Human Rights Reports 1, HUDOC REF00000139, par. 31.
48. ECHR 25 April 1983
49. Pakelli v. Germany, 6 European Human Rights Reports 1, HUDOC REF00000139;
50. Derek O'Brien and John Arnold Epp: Defending the Right to Choose: Legally Aided Defendants and Choice of Legal Representative, [2001] European Human Rights Law Review.
51. For a contrary view see X v. United Kingdom (1984) 6 European Human Rights Reports 345.
52. ECHR 25 September 1992, Croissant v. Germany, series A, No. 237-B, HUDOC REF00000321.
53. (1985) 7 European Human Rights Reports.
54. ECHR 27 August 1991, Philis v. Greece, series A-209, HUDOC REF00000266.
55. International Law Reports 21/6/99.
56. 287 U. S. 45(1932).
57. The right to legal assistance was expanded in Johnston v. Zerbst, 304 U. S. 458(1938), where the Court held that the Sixth Amendment requires the appointment of counsel for indigent defendants in all federal criminal proceedings.
58. In Douglas v. California, 372 U. S. 353, 356-357(1963)), the right to counsel of indigent defendants was also recognised.
59. In Argensinger v. Hamlin, 407 U. S. 25, 37(1972), the right to counsel was held to apply to any misdemeanour prosecution may lead to imprisonment.
60. 287 U. S. 45(1932), pp. 58 and 71.
61. In Avery v. Alabama, 308 U. S. 444(1940), for example, the Supreme Court held that the Sixth Amendment is not satisfied by the mere appointment of an attorney (p. 446).
62. In Glasser v. United States, 315 U. S. 60(1942), the Supreme Court held that the Sixth Amendment guarantees the right to effective assistance of counsel (p. 76).
63. This explicit acknowledgement of the necessity of effectiveness of legal assistance was repeated in McMann v. Richardson, 397 U. S. 759(1970), p. 771 n. 14
64. and Cuyler v. Sullivan, 446 U. S. 335(1980), p. 344.
65. 469 U. S. 387(1985).
66. 316 U. S. 455(1942).
67. For criticism as regards this judgement, see William S. Geimer: A decade of Strickland's tin horn: Doctrinal and Practical Undermining of the Right to Counsel, 4 William & Mary Bill of Rights Journal 91, Summer 1995, pp. 106-107.
68. 372 U. S. 335(1963), p. 344.
69. pp. 336-45. It should however be noted that, in the same case, Justice Stewart stated that even if appointment of counsel was mandated in every case, the Supreme Court could not, nor should it, make sure that indigent criminal defendants were provided with "truly adequate representation". See Potter Stewart, Right to Counsel, 18 Legal Aid Brief Case 91(1960), p. 93.
70. 491 US 617(1989), p. 624.
71. Faretta v. California 422 U. S. 806(1975).
72. United States v. Frazier-El 204 F.3d 553, 560 (4th Circuit 2000).
73. United States v. Lawrence 161 F.3d 250, 253 (4th Circuit 1998).
74. Meyer-Goßner, StPO, 46th edition, 2003, Par. 140, No30, 30a.
75. Bundesgerichtshof = BGH docket no. 3 StR 6/00, 26th October 2000, Strafverteidiger 2001, 1.
76. OLG Köln, Strafverteidiger 90, 395.
77. Meyer-Goßner, StPO, 46th edition, 2003, Par. 141 No1a.
78. C. P. M. Cleiren & J. F. Nijboer (eds.), Tekst & Commentaar Strafvordering, Deventer: Kluwer, 2001, p 127.
79. Article 28(1) of the Dutch Code of Criminal Procedure: De verdachte is bevoegd zich, overeenkomstig de bepalingen van den Derden Titel van dit Boek, door een of meer gekozen of toegevoegde raadslieden te doen bijstaan.
80. Kamerstukken II 1992/1993 22 609, nr. 6, pp. 24-25.
81. Hoge Raad (Dutch Supreme Court) = HR. HR 20 October 1987, NJ 1988/446.
82. The Prosecutor v. Milan Martic, IT-95-11-PT, Decision on Appeal against Decision of Registry, 2 August 2002, p. 4. The Chamber held that "once the matter is brought to its attention [the Chamber] is authorised to review the decision of the Registrar since the Chamber has the duty to ensure the integrity of the proceedings and a fair trial" (emphasis added).
83. See also The Prosecutor v. Hadzihasanovic et al. ("Central Bosnia"), Case No. IT-01-47, Decision on Prosecution's Motion for review of the Registrar to assign Mr. Rodney Dixon as Co-Counsel to the Accused Kubura, 26 March 2002.
84. The Prosecutor v. Elizaphan Ntakirutimana and Gerard Ntakirutimana, ICTR-96-10-T and ICTR-96-17-T, Decision on the motion of the defence for the assignment of co-counsel for Elizaphan Ntakirutimana, 13 July 2001, Trial Chamber I, par. 12, p. 3. The case concerned the assignment of co-counsel. The Registrar refused his assignment, because the Defence had not followed the due procedure, which includes the requirement to select three names from the list of the Registrar. The reason for this requirement is that if (co-) counsel of first choice is unavailable, the Registrar can select (co-) counsel of second choice without further delay. In this case, however, co-counsel of choice had pointed out that he was available, thus, the selection of two additional names was merely a matter of formality. The Tribunal eventually approved his appointment on certain conditions.
85. It is difficult for counsel to obtain permission to withdraw. In the case of Zejnil Delalic cocounsel requested to withdraw from the case due to a conflict of interest, namely to the fact that he would be unable to provide effective assistance to his client without risking his employment. The Chamber found the allegations unproved, but added that "even if proved, these allegations would not constitute a proper basis upon which to withdraw the assignment of Mr Moran just days before the appellant brief of Hazim Delic is due, as to do so on the grounds of Mr Moran's personal interests is contrary to counsel's obligations under the Code of Professional Conduct for Defence Counsel Appearing before the International Tribunal, and to the interests of his client and of justice". The Prosecutor v. Zejnil Delalic, Zdravko Mucic (also known as "Pavo"), Hazim Delic and Esad Landzo (also known as "Zenga"), IT-96-21-T, Order on the Motion to withdraw as Counsel due to Conflict of Interest, 24 June 1999.
86. The Prosecutor v. Zejnil Delalic, Zdravko Mucic (also known as "Pavo", Hazim Delic, and Esad Landzo, also known as "Zenga", IT-96-21-T, Decision on Request by Accused Mucic for Assignment of new counsel, 24 June 1996, par. 2.
87. Also in The Prosecutor v. Nzirorera, ICTR-98-44-T, Decision on Nzirorera's, Motion for Withdrawal of Counsel, ICTR, 3 October 2001, it became apparent that there is more reluctance to replace (co-) counsel during trial.
88. The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, ICTR-96-3-T, Decision on the Accused's motion for withdrawal of his lead counsel, 31 October 1997, par. 1.
89. See also The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Decision concerning a replacement of an assigned defence counsel and postponement of the trial, 31 October 1996, p. 3, where the Trial Chamber justifies replacement of counsel on the basis of Article 14 of the United Nations International Covenant on Civil and Political Rights; recognising the need for defence counsel to have adequate time to prepare the defence.
90. The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, ICTR-96-3-T, Decision on the Accused's motion for withdrawal of his lead counsel, 31 October 1997, par. 1 and 2. In this case, the Tribunal accepted that the loss of confidence of the accused in counsel was genuine and constituted an exceptional circumstance within the meaning of Article 19 (A) (ii) of the Directive to justify replacement of counsel.
91. The Prosecutor v. Theoneste Bagosora, ICTR-96-7-T, Decision on the request by the Accused for change of Assigned Counsel, 26 June 1997.
92. The Prosecutor v. Blagoje Simic, Milan Simic, Mroslav Tadic, Stevan Todorovic, Simo Zaric, IT-95-9-T, Decision on the Prosecution motion to resolve conflict of interest regarding attorney Borislav Pisarevic, 25 March 1999, Trial Chamber, p. 4.
93. Prosecutor v. Zejnil Delalic, Zdravko Mucic (also known as "Pavo"), Hazim Delic, Esad Landzo (also known as "Zenga"), IT-96-21-T, Order regarding Esad Landzo's request for removal of John Ackerman as Counsel on Appeal for Zejnil Delalic, 6 May 1999, Appeals Chamber.
94. Statement by the Registrar Concerning Change of Counsel Under the Tribunal's Legal Aid Programme, ICTR Registrar, Arusha, 5 November 2002, ICTR/INFO-9-3-13, see ICTR Web site: : "To prevent any abuse of the Legal Aid Program and to efficiently manage its limited resources, co-counsel will not be automatically assigned as lead counsel where lead counsel have been withdrawn, unless exceptional circumstances so require. New lead counsel will be assigned..." In the case of Ntabakuze, ICTR-98-41-T, this occurred just before trial commenced. The accused lost confidence in counsel and expressed his wish to have co-counsel assigned as counsel. This request was rejected; instead, the registry assigned counsel who knew nothing about the case, did not speak French and had no time to prepare. He withdrew and a new request was made to registry to have co-counsel assigned as counsel, which was again rejected. Finally, approximately a year after lead counsel was withdrawn, Ntabakuze was assigned a new lead counsel.
95. The request of a defendant is, however, not always granted, even if submitted in an early stage. In The Prosecutor v. Akayasu, ICTR-96-4-T, Decision on the Request of the Accused for the Replacement of Assigned Counsel, 16 January 1997, p. 2, for example, the Trial Chamber argued that Akayesu had failed to show exceptional circumstances.
96. ECHR 14 January 2003, Lagerblom v. Sweden, HUDOC REF00004037, par. 54. The ECHR refers to Croissant judgement.
97. ECHR 25 September 1992, Croissant v. Germany, series A, No. 237-B, HUDOC REF00000321, par. 29.
98. ECHR, 14 January 2003, Lagerblom v. Sweden, HUDOC REF00004037, par. 55.
99. ECHR, 14 January 2003, Lagerblom v. Sweden, HUDOC REF00004037, par. 56-64.
100. United States v. Musa, 220 F.3d 1096 (9th Circuit 2000), par. 7: "Even if a defendant's counsel is competent, a serious breakdown in communication can result in an inadequate defence."
101. Unless it occurs on the very first day, as in United States v. Nguyen, 262 F.3d 998 (9th Circuit 2001).
102. In United States v. Adelzo-Gonzalez, 268 F.3d 772 (9th Circuit 2001), the request for replacement of counsel was successful for exactly that reason.
103. United States v. Musa, 220 F.3d 1096 (9th Circuit 2000), par. 6. In Musa's case the appeal was successful on the second ground; the district court made no inquiry at all. Therefore, the sentence was vacated and the district court was remanded for a hearing on the nature of the conflict between Musa and his counsel. Depending on the outcome of the investigation, Musa's sentence would either be reinstated or Musa would obtain a new hearing with new counsel.
104. BGH 1 StR 59/01, 20th March 2001.
105. BVerfG NStZ 1998, 46.
106. BGH NStZ 1992, 292.
107. BGH NStZ 1999, 527.
108. Cleiren & Nijboer (2003), pp. 125-126.
109. This occurred recently at the ICTR in the Military Trial, ICTR-98-41-T. A conflict between counsel and co-counsel of General Gratien Kabiligi, one of the four Accused in the Military Trial, resulted in withdrawal of co-counsel. Counsel and co-counsel had a disagreement about strategy, which resulted in complete lack of trust of the client in co-counsel. The Registrar found that whether in good or bad faith, co-counsel had acted contrary to the wishes of lead counsel and therefore violated Article 15 (E) of the ICTR Directive, which indicates that lead counsel is in charge. Co-counsel was withdrawn by the Registrar's Decision of 11 February 2004.
110. Le Procureur c/Hazim Delic, IT-96-21-R-R119, « Décision relative à la requête en révision », 25 avril 2002, par. 15. Free translation in English: "It is only when one finds that a decision of counsel has led to a miscarriage of justice, because of its nature and the circumstances of the case, that the Appeals Chamber does not hold the accused responsible for the actions of his counsel."... "If the accused hints that the element in question has not been presented to the Tribunal because of the negligence of his counsel, he has to demonstrate that its exclusion would have led to a miscarriage of justice."
111. The Prosecutor v. Radoslav Krstic, IT-98-33-A, Decision on Applications for Admission of Additional Evidence on Appeal, 5 August 2003, p. 4.
112. The Prosecutor v. Tadic, IT-94-1-A, Decision on Appellant's Motion for the Extension of the Time-limit and Admission of New Evidence, Appeals Chamber, 15 October 1998, par. 34.
113. The Prosecutor v. Barayagwiza, ICTR-97-19-AR72, Decision on Prosecutor's Request for Review or Reconsideration, 31 March 2000, par. 47.
114. The Prosecutor v. Georges Rutaganda, ICTR-96-3-A, Consolidated Defence Motion for an Order Varying the Grounds of Appeal pursuant to Rule 107bis and Rules 114 and 116 of the Rules of Procedure and Evidence; for a REHEARING OF ORAL ARGUMENT IN THE APPEAL pursuant to Article 24 of the Statute of the International Tribunal for Rwanda, and for the ADMISSION OF ADDITIONAL EVIDENCE pursuant to Rules 115 A and B of the Rules of Procedure and Evidence, as well as a REQUEST FOR EXTENSION OF THE PAGE LIMIT APPLICABLE TO MOTIONS, 03 January 2003.
115. Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, ICTR-96-3-A, Appeals Chamber Judgement, 26 March 2003.
116. Prosecutor v. Jelisic, IT-95-10-A, Decision on Request to Admit Additional Evidence, 15 November 2000, par. 3.
117. The Prosecutor v. Barayagwiza, ICTR-97-19-AR72, Decision on Prosecutor's Request for Review or Reconsideration, 31 March 2000, par. 65.
118. See also The Prosecutor v. Tadic, IT-94-1-R, Decision on Motion for Review, Appeals Chamber, 30 July 2002, par. 27: "[T]he Appeals Chamber, whenever it is presented with a new fact that is of such strength that it would affect the verdict, may, in order to prevent a miscarriage of justice, step in and examine whether or not the new fact is a decisive factor, even though the second and third criteria under Rule 119 of the Rules may not be formally met."
119. The Prosecutor v. Tadic, ICTY IT-94-1-A, Decision on Appellant's Motion for the Extension of the Time-limit and Admission of New Evidence, Appeals Chamber, 15 October 1998, par. 49, "In this case, the parties agree that due diligence might have been lacking in respect of certain evidence which was not presented at trial because of the decision of the Defence team to withhold it. The Appeals Chamber is not, however, satisfied that there was gross professional negligence leading to a reasonable doubt as to whether a miscarriage of justice resulted. Accordingly, evidence so withheld is not admissible under Rule 115 of the Rules."
120. The Prosecutor v. Kupreskic and others, IT-95-16-A, Decision on the Admission of Additional Evidence Following Hearing of 30 March 2001, 11 April 2001, par. 24.
121. See also The Prosecutor v. Kupreskic and others, IT-95-16-A, 23 October 2001, Appeals Judgement, par. 60, which refers to this decision and repeats the argument.
122. The Prosecutor v. Tadic, ICTY IT-94-1-A, Decision on Appellant's Motion for the Extension of the Time-limit and Admission of New Evidence, Appeals Chamber, 15 October 1998, 49.
123. See also Akayesu v. The Prosecutor, ICTR-96-4-A, Appeals Judgement, 1 June 2001, which, while referring to the Tadic decision, adopts the term "gross incompetence", par. 76.
124. The Prosecutor v. Momir Nikolic, IT-02-60/1-A, Corrected Conformed and Supplemented Motion to Admit Additional Evidence, 21 September 2004.
125. The Prosecutor v. Momir Nikolic, IT-02-60/1-A, Decision on Motion to Admit Additional Evidence, 9 December 2004, par. 37.
126. The Prosecutor v. Kupreskic and others, IT-95-16-A, 23 October 2001, Appeals Judgement, par. 75, where the Appeals Chamber held that "the test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings."
127. Jean-Paul Akayesu v. The Prosecutor, ICTR-96-4-A, Appeals Judgement, 1 June 2001, par. 78.
128. The Prosecutor v. Tadic, IT-94-1-A, Decision on Appellant's Motion for the Extension of the Time-limit and Admission of New Evidence, Appeals Chamber, 15 October 1998, par. 48.
129. Jean-Paul Akayesu v. The Prosecutor, ICTR-96-4-A, Appeals Judgement, 1 June 2001, par 81, where the Appeals Chamber held that even where documents submitted by the client "suffice to prove incompetence of his Counsel, they cannot constitute sufficient and adequate proof since they emanate from the Appellant himself".
130. The Prosecutor v. Tadic, IT-94-1-A, Decision on Appellant's Motion for the Extension of the Time-limit and Admission of new evidence, Appeals Chamber, 15 October 1998, par. 65.
131. Jean Kambanda v. The Prosecutor, ICTR 97-23-A, Appeals Judgement, 19 October 2000, par. 23, which refers to: Transcript of 27 June 2000, p. 47.
132. An exception arises where the Trial Chamber observes offensive or prejudicial conduct see Jean-Paul Akayesu v. The Prosecutor, ICTR-96-4-A, Appeals Judgement, 1 June 2001, par. 83.
133. Jean Kambanda v. The Prosecutor, ICTR 97-23-A, Appeals Judgement, 19 October 2000, par. 25
134. which refers to: The Prosecutor v. Anto Furundzija, IT-95-17/1-A, Appeals Judgement 21 July 2000, par. 174.
135. For similar arguments, see: The Prosecutor v. Aleksovski, IT-94-1-A, Decision on the Posecutor's Appeal Concerning the Admissibility of Evidence, 16 February 1999, Appeals Chamber, par. 19;
136. The Prosecutor v. Dusko Tadic, IT-94-1-A, 15 July 1999, Appeals Judgement, par. 55;
137. The Prosecutor v. Kayishema and Ruzindana, ICTR-95-IT, 21 May 1999, Judgement, par. 64;
138. The Prosecutor v. Milan Kovacevic, IT-97-24-AR73, 2 July 1998, Appeals Judgement, par. 33. An exception arises when counsel's poor performance became apparent only on the basis of evidence or facts, which were not available at trial, and could not have been discovered through due diligence.
139. The Prosecutor v. Tadic, IT-94-1-A, Decision on Appellant's Motion for the Extension of Time-Limit and Admission of Additional Evidence, 15 October 1998, par. 65.
140. Akayesu Appeals Brief, p. 6, par 13.
141. Akayesu Appeals Brief, pp. 1-2, par. 1.
142. Akayesu Appeals Brief, p. 5, par. 11.
143. Akayesu alleged that he spent a little over 30 hrs with both counsel in 1997, and about an hour in 1998. Akayesu Appeals Brief, p. 6, par. 15.
144. Akayesu Appeals Brief, p. 5, par. 12.
145. Akayesu Appeals Brief, p. 10, par. 27.
146. Akayesu Appeals Brief, p. 8, par. 21.
147. Akayesu Appeals Brief, pp. 1-2, par. 1 + p. 5, par. 10.
148. Transcript of 1 November 2000, pp. 146, where the Prosecutor agrees that defence counsel had not adopted a good defence strategy and had been negligent on numerous occasions. Akayesu Appeals Judgement, par. 75.
149. On a number of occasions the President intervened on behalf of Akayesu, making clear that Akayesu had the right to require of his counsel to ask exactly the questions that the accused wished (Transcripts of 16 Jan. 1997, p. 43;
150. Transcripts of 31 October 1997, p. 140 lines 7-13).
151. The President furthermore unsuccessfully made many suggestions to counsel to consider the questions proposed by the client (Transcripts of 27 January 1997, pp. 95-96;
152. Transcripts of 4 February 1997, pp. 105-106: "if possible, ask these questions to avoid a malentendu. We are not going to start this trial all over again. " On 19 March 1998 Judge Kama stated that the Trial Chamber was astonished by the nonappearance of counsel at such a crucial moment and regretted that they had to use Rule 46 to sanction counsel for obstructive behaviour. The behaviour of counsel was at minimum surprising, if not humiliating and offensive (Transcripts of 19 March 1998, p. 108, lines 21-23, p. 112, lines 6-8, p. 113, lines 2-6). On 6 February 1998 President Kama had to remind counsel that he should hurry up to get more witnesses, as so far, he had only suggested three witnesses in total.
153. Akayesu Appeals Brief, par. 83.
154. Akayesu's Appeals Judgement, par. 80.
155. Transcript of 27 June 2000, pp. 36(last line), 37, 38, 39, 43, 94 and 164;
156. Transcripts of 28 June 2000, pp. 9, 28 and 29.
157. The Prosecutor v. Kambanda, ICTR-97-23-A, 19 October 2000, Appeals Judgement, par. 67.
158. "How then can it be explained that any advocate worthy of the name, receiving a bulky file containing 50 hours of taped interviews of his client, nearly 200 kilos of documents seized on his arrest in Nairobi on 18 July 1997, and a draft statement by Jean Kambanda with his explanation of the indicted events, neither asked for an adjournment, nor made any contact with his Belgian colleague who had been in charge of the case after the arrest, and did not bother to verify whether his client's account, and the contents of his interviews were in agreement with the draft agreement with the Prosecutor in Kigali." Free Translation into English of Letter of 12 January 2001, p. 3.
159. The Prosecutor v. Tadic, IT-94-A, Appeal Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, 27 February 2001, par. 41.
160. ECHR 13 May 1980, Artico v. Italy, series A, No. 37, HUDOC REF00000009;
161. ECHR 21 April 1998
162. Daud v. Portugal, 30 European Human Rights Reports (EHHR)
163. 400, Reports of Judgements and Decisions 1998-II, HUDOC REF00000784.
164. ECHR 13 May 1980, Artico v. Italy, series A, No. 37, HUDOC REF00000009.
165. Constant case-law of the European Court determines when the State is obliged to provide an accused with free legal assistance. See ECHR 24 May 1991 Quaranta v. Switzerland, series A, No. 205, HUDOC REF00000262, par. 32-34;
166. ECHR 10 June 1996, Benham v. United Kingdom, Reports of Judgements and Decisions 1996-III, HUDOC REF0000057, par. 60;
167. ECHR 14 January 2003, Lagerblom v. Sweden, HUDOC REF00004037, par. 51.
168. ECHR 21 April 1998, Daud v. Portugal, 30 European Human Rights Reports (EHHR) 400, Reports of Judgements and Decisions 1998-II, HUDOC REF00000784, par. 38 and ECHR 10 October 2002
169. Czekalla v. Portugal, ECHR LTL10/10/02 (Lawtel), Reports of Judgements and Decisions 2002-VIII, HUDOC REF00003822, par. 60.
170. ECHR 29 March 1994, Goddi v. Italy, series A, No. 76, HUDOC REF00000080, par. 31.
171. See also ECHR 30 March 1998
172. Daud v. Portugal, 30 European Human Rights Reports (EHHR)
173. 400, Reports of Judgements and Decisions 1998-II, HUDOC REF00000784, par. 42-43.
174. See ECHR 8 February 2000, Mchael Edward Cooke v. Austria, HUDOC REF00001342, par. 38.
175. ECHR 30 March 1998
176. Daud v. Portugal, 30 European Human Rights Reports (EHHR)
177. 400, Reports of Judgements and Decisions 1998-II, HUDOC REF00000784, par. 23.
178. ECHR 10 October 2002
179. Czekalla v. Portugal, ECHR LTL10/10/02 (Lawtel), Reports of Judgements and Decisions 2002-VIII, HUDOC REF00003822, par. 73.
180. ECHR 24 November 1993, Imbrioscia v. Switzerland, series A, No. 275, HUDOC REF00000437, par. 39-41 about the inactive first lawyer, and from par. 42 till 44 about the nonattendance of his lawyers at interviews and that taken the procedure as a whole the Court found no violation.
181. ECHR 25 January 1994, Stanford v. the United Kingdom, series A, No. 282-A, HUDOC REF00000459, par. 27.
182. ECHR 23 November 1989, Kamasinski v. Austria, series A, No. 168, HUDOC REF00000199, par. 70.
183. ECHR 19 December 1989, Kamasinski v. Austria, series A, No. 168, HUDOC REF00000199, par. 68.
184. ECHR 25 January 1994, Stanford v. the United Kingdom, series A, No. 282-A, HUDOC REF00000459, par. 27.
185. ECHR 19 December 1989, Kamasinski v. Austria, series A, No. 168, HUDOC REF00000199, par. 66 and 68.
186. ECHR 19 December 1989, Kamasinski v. Austria, series A, No. 168, HUDOC REF00000199, par. 68 and 19.
187. par. 70. This consideration seems, to some extent, to correlate with the decision in the Croissant case, in which the Court found that, although confidence between counsel and client is important, there is no absolute right to have assigned the counsel in whom one has confidence. The State may override the accused's wishes on relevant and sufficient grounds in the interests of justice. ECHR 25 September 1992, Croissant v. Germany, series A, No. 237-B, HUDOC REF0000032, par. 29.
188. ECHR 13 May 1980, Artico v. Italy, series A, No. 37, HUDOC REF00000009.
189. ECHR 10 October 2002
190. Czekalla v. Portugal, ECHR LTL10/10/02 (Lawtel), Reports of Judgements and Decisions 2002-VIII, HUDOC REF00003822, par. 65-66 and 68.
191. ECHR 30 March 1998, Daud v. Portugal, 30 European Human Rights Reports (EHHR) 400
192. Reports of Judgements and Decisions 1998-II, HUDOC REF00000784, par. 42.
193. ECHR 24 November 1993, Imbrioscia v. Switzerland, series A, No. 275, HUDOC REF00000437, two weeks of inaction, even despite some other complaint about the non-attendance of the lawyer at earlier and later interrogations, did not lead to a violation because the authorities assigned a new counsel as soon as the previous counsel withdrew.
194. ECHR 29 March 1994, Goddi v. Italy, series A, No. 76, HUDOC REF00000080, par. 31
195. and ECHR 14 January 2003, Lagerblom v. Sweden, HUDOC REF00004037, par. 56-64.
196. See with regard to the moment of replacement ECHR 29 March 1994, Goddi v. Italy, series A, No. 76, HUDOC REF00000080, par. 31.
197. See also ECHR 30 March 1998
198. Daud v. Portugal, 30 European Human Rights Reports (EHHR) 400, Reports of Judgements and Decisions 1998-II, HUDOC REF00000784, par. 42-43 and ECHR 8 February 2000, Michael Edward Cooke v. Austria, HUDOC REF00001342, par. 38.
199. ECHR 10 October 2002
200. Czekalla v. Portugal, ECHR LTL10/10/02 (Lawtel), Reports of Judgements and Decisions 2002-VIII, HUDOC REF00003822, par. 68.
201. ECHR 29 March 1994, Goddi v. Italy, series A, No. 76, HUDOC REF00000080, par. 30.
202. Reg. v. Clewer (1953) 37 Criminal Appeal Reports 37, at p. 40, per Lord Goddard C. J.
203. Lawrence Pat Sankar v. The State of Trinidad and Tobago, Privy Council, [1995] 1 Weekly Law Reports 194, p. 198.
204. Reg. v. Clinton [1993] 1 Weekly Law Reports 1181.
205. Reg. v. Clinton [1993] 1 Weekly Law Reports 1181, p. 1186.
206. Lawrence Pat Sankar v. The State of Trinidad and Tobago, Privy Council, [1995] 1 Weekly Law Reports 194, pp. 194-95.
207. See also Reg. v. Clinton [1993] 1 Weekly Law Reports 1181, where it was held that only in wholly exceptional circumstances the conduct of counsel can form the basis for an appeal, but in this case, the appeal was allowed because of the failure of counsel, in a case where the defendant's evidence was essential, to advise the defendant in strong terms to give evidence. See also Sealey v. The State, The Times November 5, 2002 where the Privy Council again emphasised that allowing such appeals would be exceptional but held that the failure to raise the matter of the defendant's good character in a case which turned on his credibility as a witness was such an exceptional case.
208. Lawrence Pat Sankar v. The State of Trinidad and Tobago, Privy Council, [1995] 1 Weekly Law Reports 194, pp. 194-95.
209. [1998] Criminal Law Review 131.
210. [2001] Criminal Law Review 506, CA.
211. Unreported, 16 April 2003, CA [2003] EWCA (England and Wales Court of Appeal) Crim. 1060.
212. R v. Togher and others, [2001] 3 All English Reports 463.
213. [2001] 2 Criminal Appeal Reports, 445.
214. The Times, April 10, 2001, PC.
215. Lawrence Pat Sankar v. The State of Trinidad and Tobago, Privy Council, [1995] 1 Weekly Law Reports 194, p. 199.
216. [1993] 1 Weekly Law Reports 1181, pp. 1181, 1183-84.
217. [2001] 3 Archbold News 3.
218. [1993] 1 Weekly Law Reports 1181, p. 1187. In Reg. v. Gautam, The Times, 4 March 1987, it was explained why wrong strategy cannot generally grant a valid ground of appeal. "[Provided counsel had properly discussed the case with his client, the court would not permit the defendant to have another opportunity to run an alternative defence which had not been run at trial." (as referred to in Clinton, p. 1187).
219. [1999] Criminal Law Review 87, CA.
220. 466 U. S. 668(1984).
221. See, inter alia, Lissa Griffin: The Right to Effective Assistance of Appellate Counsel, 97 Western Virginia Law Review 1(1994), at p. 14, where she argues that "[t]he majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree. Every defendant is entitled to a trial in which his interests are vigorously and conscientiously advocated by an able lawyer. A proceeding in which the defendant does not receive meaningful assistance in meeting the forces of the State does not, in my opinion, [constitute] due process."
222. 466 U. S. 668(1984), p. 707.
223. 466 U. S. 648(1984).
224. William S. Geimer: Adecade of Strickland's tin horn: Doctrinal and Practical Undermining of the Right to Counsel, 4 William. & Mary Bill of Rights Journal 91, Summer 1995, p. 145. In his opinion, "a conviction or death sentence should be upheld only upon showing by the prosecution that the denial was harmless beyond a reasonable doubt." At p. 133.
225. 113 S. Ct. 838(1993).
226. No. 92-4013, 1992 U. S. App. LEXIS 28147 (4th Circuit October 21, 1992) (per curiam).
227. 466 U. S. 648(1984).
228. pp. 652-53. At the time of his appointment, Cronic's lawyer had no previous experience in criminal law and had never participated in a jury trial, pp. 649, 665.
229. pp. 663-64 and 664 n. 33. See, however, Powell v. Alabama, 387 U. S. 45, 57-58(1932) stressing the importance of full investigation by counsel even when it appears unlikely that such investigation will uncover viable defence.
230. 913 F.2d 1092 (4th Circuit 1990)
231. cert. Denied, 499 U. S. 913(1991).
232. See for a similar case: Messer v. Kemp, 760 F.2d 1080 (11th Circuit 1985)
233. cert. Denied, 474 U. S. 1088(1986).
234. BGH 5 StR 251/02 LG Berlin, 15th January 2003.
235. HR 7 May 1996, Nederlandse Jurisprudentie 1996/557.
236. HR 1 July 1997, NJ 1997/675.
237. HR 10 March 1998, NJ 1998/746.
238. HR 5 October 2004, LJN: AP0187.
239. See also HR 7 May 1996, NJ 1996/557.
240. HR 10 October 2000, NJ 2000/694.
241. See also HR 26 January 1999, NJ 1999/295.
242. HR 9 December 2003, NJ 2004/133.
243. When, however, counsel and his client appeared on time but the court clerk failed to call the client when it was his turn, the Court of Appeal does have an obligation to refer the case back to the court of first instance: HR 14 March 2000, NJ 2000/423, AA5119.
244. See for a case in which the counsel withdrew and had not been able to contact his client HR 26 Mai 1998, NJ 1998/677.
245. See for example HR 24 June 1980, NJ 1980/576 and HR 25 March 1997, 1998/50.
246. HR 19 December 2000, NJ 2001/183.
247. HR 7 December 1999, NJ 2000/175.
248. Elise Groulx: « La création d'un Barreau pénal international: Historique, cadre légal et questions clés », Chapter 2, Conference paper presented at the Paris Conference 6-7 December 2001: The Creation of an International Criminal Bar before the International Criminal Court;
249. Elise Groulx: The challenge of competent representation before the ICC [December 2002], both published at: http://www.hri.ca/partners/aiad-icdaa.
250. The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Decision concerning a replacement of an assigned defense counsel and postponement of the trial, 31 October 1996; and Issuance of warning against defence counsel, 19 March 1998.
251. See also The Prosecutor v. Alfred Musema, ICTR-96-13-I: Warning and Notice to Counsel in terms of Rule 46a of the Rules of Procedure and Evidence, 31 October 1997 and Decision to withdraw assigned counsel and to allow the prosecutor temporarily to redact identifying information of her witness, 18 November 1997. Disciplinary sanctions were taken against all of them, as the Tribunals did not consider their financial complaints a valid reason not to appear for trial.
252. The Prosecutor v. Mlutinovic and others, IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, Appeal Chamber, par. 19. In Milutinovic and others the remuneration was allegedly too low, given the fact that the pre-trial stage lasted much longer than anticipated. Defence counsel unsuccessfully filed a motion with the Trial Chamber against the Registrar's refusal to allocate additional funds. The Trial Chamber rejected the motion on the ground that "the Registrar is open to a certain flexibility in considering requests for additional resources, [and therefore] the Defence should demonstrate exceptional circumstances or circumstances beyond its control if such requests are to be granted" (emphasis added)
253. see The Prosecutor v. Milutinovic and others, IT-99-37-T, Decision on Motion for Additional Funds, 8 July 2003, p. 5. The Appeals Chamber confirmed the position adopted by the Trial Chamber.
254. The recent process of drafting the Professional Code of Conduct of Defence Counsel before the ICC confirmed that the registrar is in sole charge. Although the registrar asked for contributions of lawyers internationally, the final draft incorporates few propositions of the International Criminal Bar and the disciplinary powers remain with the registrar. Thus, at the time of this writing, sadly but evidently, the situation for the defence has hardly improved. See for background information of the establishment of the International Criminal Bar: Elise Groulx: « La création d'un Barreau pénal international: Historique, cadre légal et questions clés », Chapter 2, Conference paper presented at the Paris Conference 6-7 December 2001
255. The Creation of an International Criminal Bar before the International Criminal Court; Elise Groulx: The challenge of competent representation before the ICC [December 2002], both published at: .