TRIAL CHAMBER I

Before: 
Judge Erik Møse, presiding
Judge Jai Ram Reddy
Judge Sergei Alekseevich Egorov

Registrar: Adama Dieng

Date: 24 March 2005

THE PROSECUTOR
v.
Théoneste BAGOSORA
Gratien KABILIGI
Aloys NTABAKUZE
Anatole NSENGIYUMVA

Case No. : ICTR-98-41-T

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DECISION ON MAITRE PAUL SKOLNIK’S APPLICATION FOR RECONSIDERATION OF THE CHAMBER’S DECISION TO INSTRUCT THE REGISTRAR TO ASSIGN HIM AS LEAD COUNSEL FOR GRATIEN KABILIGI

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The Office of the Prosecutor
Barbara Mulvaney   
Drew White
Christine Graham   
Rashid Rashid                              

Counsel for the Defence
Raphaël Constant
Paul Skolnik
René Saint-Léger
Peter Erlinder
André Tremblay
Kennedy Ogetto
Gershom Otachi Bw’Omanwa

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (“the Tribunal”),

SITTING as Trial Chamber I, composed of Judge Erik Møse, presiding, Judge Jai Ram Reddy, and Judge Sergei Alekseevich Egorov;

BEING SEIZED OF the “Application by Maitre Paul Skolnik for Reconsideration and Modification of the Decision of the Trial Chamber of January 19, 2005”, filed on 2 March 2005;

CONSIDERING the Bagosora Defence submissions, filed on 3 March 2005; the Prosecution’s response, filed on 3 March 2005; Mr. Skolnik’s further application, filed  on 8 March 2005; the Prosecution’s further reply, filed on 9 March 2005; Mr. Skolnik’s reply, filed on 14 March 2005; and the Prosecution second further response, filed on 14 March 2005.

HEREBY DECIDES the application.

INTRODUCTION

1.      The Prosecution case against the four Accused concluded on 14 October 2004 after eighty-two witnesses had testified. In a decision of 26 October 2004, the Registrar withdrew the assignment of Mr. Jean Yaovi Degli as Lead Counsel for Mr. Gratien Kabiligi under the framework of the legal aid system. The decision was based on evidence of fraudulent conduct.[1] The Registrar also invited Mr. Kabiligi to submit without delay a list of three individuals who could be assigned as new Lead Counsel. At the time, the Defence case was scheduled to start on 12 January 2005.

2.      All Defence teams, as well as Mr. Kabiligi individually, challenged the Registrar’s decision before the Trial Chamber and requested Mr. Degli’s reinstatement. On 20 December 2004, the Chamber denied the requests to reinstate Mr. Degli, with written reasons to follow.[2] During a status conference on 21 December 2004, Mr. Kabiligi expressed his intention to seek certification to appeal the decision. [3]

3.      During the same status conference, Mr. Kabiligi requested the Chamber to order the Registrar to appoint Mr. Skolnik, then Co-Counsel in the Bagosora Defence, to serve as his new Lead Counsel given his familiarity with the case.[4] The Bagosora Defence concurred with this proposed solution. Both suggested that the Chamber act pursuant to Rule 45 quater to facilitate the appointment immediately.[5] The Registry indicated that it was favourable to appointing Mr. Skolnik and that it could do so promptly.[6] The Chamber left it to the Registry to pursue this option.[7] In light of the changed circumstances, the Chamber postponed the commencement of the Defence case until 30 March 2005.[8] The Chamber also postponed the date for the filing of Kabiligi’s pre-Defence brief and witness list until 28 February 2005, subject to further representations from Mr. Skolnik if named Lead Counsel.

4.      The Registry subsequently corresponded with Mr. Kabiligi and Mr. Skolnik to obtain further assurances and information related to the proposed solution prior to making an appointment. On 21 December 2005, the Registry renewed its request for Mr. Kabiligi to formally submit three names for a replacement counsel, including that of Mr. Skolnik if he so desired. In a letter dated 22 December 2004, Mr. Skolnik expressed his willingness to accept the appointment, if certain conditions were met. However, he also indicated concerns that subsequent appeals might lead to his displacement. Mr. Skolnik proposed that he be named interim Lead Counsel until the situation was clarified, if he accepted.[9]

5.      On 23 December 2004, the Registry sent a further request to Mr. Kabiligi to submit a list of three names, including Mr. Skolnik, and indicated its willingness to facilitate the solution proposed by the Accused at the status conference.[10] In a letter dated 27 December 2004, Mr. Kabiligi withdrew his proposal, stating that it had caused confusion and indicating his need for Lead Counsel to act in his interests exclusively. He asked that the process of assigning a new Lead Counsel be suspended until the various avenues for reinstating Mr. Degli had been exhausted.

6.      The Chamber delivered written reasons for denial of reinstatement of Mr. Degli on 19 January 2005. It also instructed the Registrar to appoint Mr. Skolnik as Lead Counsel for the Kabiligi Defence.[11] On 24 January 2005, the Registrar made that appointment and subsequently withdrew the assignment of Mr. Skolnik as Co-Counsel for the Bagosora Defence in a decision of 27 January 2004.

7.      All Defence teams, as well as Mr. Kabiligi, individually, filed requests for certification to appeal the Chamber’s decision not to reinstate Mr. Degli. The Chamber denied these requests and stated that “[t]he denial of these requests for certification definitively closes the issue of Mr. Degli’s return as Lead Counsel of the Kabiligi Defence under the legal aid program”.[12] In a decision delivered the same day, the Chamber further noted that the Registrar’s appointment of Mr. Skolnik as Lead Counsel for Mr. Kabiligi on 24 January 2005 had concluded Mr. Degli’s obligations toward Mr. Kabiligi. The Chamber authorized Mr. Degli “to have telephone communication with Mr. Kabiligi in order to facilitate the orderly transfer of the case file to the new Lead Counsel, Mr. Skolnik”.[13]

8.      By letter dated 4 February 2005, Mr. Kabiligi insisted that Mr. Skolnik was not authorized to act as his counsel, and stated that he considered Mr. Degli to be his Lead Counsel. Mr. Kabiligi indicated that he would be unable to comply with the deadline of 28 February 2005 for filing his pre-Defence brief and would not be in a position to proceed with the trial on 30 March 2005, as had been decided at the status conference on 21 December 2004. On 4 February 2005, Mr. Kabiligi filed a document on his own behalf entitled “Motion for severance of trials”.

9.      On 6 February 2005, Mr. Skolnik travelled to Arusha and met with Mr. Kabiligi on several occasions, including 7 and 8 February 2005.[14] Mr. Kabiligi refused to meet with Mr. Skolnik at a previously scheduled meeting on 11 February 2005. [15] Mr. Kabiligi subsequently sent a letter of apology to Mr. Skolnik for refusing to meet with him. [16]

10.  On 10 February 2005, citing the language in the 19 January 2005 decision, Mr. Kabiligi filed a letter requesting Mr. Degli, in his private capacity, to voluntarily undertake his defence until the end of the trial. [17] On 24 February 2005, four days before the scheduled status conference, Mr. Degli indicated by letter to the Chamber that he was prepared to do so, and Mr. Degli requested permission to enter into attorney-client communications with Mr. Kabiligi.

11.  Mr. Skolnik appeared as Mr. Kabiligi’s Lead Counsel during the status conference on 28 February 2005. The Chamber heard oral submissions from the parties and Mr. Kabiligi concerning a possible role for Mr. Degli in the Kabiligi Defence. Mr. Kabiligi confirmed his request to be represented by Mr. Degli on a pro bono basis.[18] At a status conference on 1 March 2005, the Chamber denied the request and stated that a written decision would follow. It noted that Mr. Degli could not legally be appointed Lead Counsel, which would imply control over the legal aid defence provided to Mr. Kabiligi.[19] The Chamber also stated that Mr. Degli was not excluded from providing assistance to the existing Defence team, if so requested by the duly designated Lead Counsel, who has “primary responsibility for the Defence”.[20]

12.  After the Chamber’s oral ruling, Mr. Skolnik, citing constraints placed on him by the Accused, asked that Mr. Kabiligi be allowed to address the Chamber.[21] Mr. Kabiligi expressed his wish to have Mr. Degli complete his case and indicated his intention to request certification of the Chamber’s decision concerning Mr. Degli’s possible role as part of the Defence on a pro bono basis.[22] In addition, Mr. Kabiligi requested severance of his case and six additional months to prepare his Defence.[23] He added that he would not accept having a counsel “imposed” on him, and requested that he be allowed to use the normal process of choosing counsel from the Tribunal’s list of potential lawyers.[24] In light of Mr. Kabiligi’s statement, Mr. Skolnik informed the Chamber of his intention to file the present motion.[25] During the same status conference, the Chamber postponed the commencement of trial until 11 April 2005. [26]

13.  On 4 March 2005, the Chamber issued its written decision on the request for Mr. Degli to appear as a pro bono counsel.[27] Mr. Kabiligi filed a request for certification of appeal on 14 March 2005.

SUBMISSIONS

14.  Mr. Skolnik seeks reconsideration and modification of the Chamber’s decision of 19 January 2005, instructing the Registrar to assign him as Lead Counsel for Mr. Kabiligi. He requests the Chamber to instruct the Registrar to withdraw his assignment as Lead Counsel for Mr. Kabiligi and to reinstate him as Co-Counsel for Mr. Bagosora. Mr. Skolnik advances three principal reasons in support of his request: (i) his lack of consent to the assignment; (ii) Mr. Kabiligi’s refusal to accept Mr. Skolnik as his Lead Counsel which has resulted in a breakdown in trust; and (iii) the potential conflict in which this situation places him with respect to his ethical obligations as a member of the Quebec Bar and under the Tribunal’s Code of Professional Conduct for Defence Counsel.[28]

15.  The Bagosora Defence seeks the return of Mr. Skolnik as Co-Counsel or, in the alternative, a delay of three months in the presentation of its evidence after the nomination of a new Co-Counsel. The Bagosora Defence notes that its reasons for proposing Mr. Skolnik as Lead Counsel for the Kabiligi Defence have disappeared given Mr. Kabiligi’s recent positions. Mr. Constant, Lead Counsel, has refrained from selecting a new Co-Counsel given the present uncertainty with respect to Mr. Kabiligi’s representation. Any new Co-Counsel would lack Mr. Skolnik’s extensive knowledge of the case.

16.  The Prosecution opposes Mr. Skolnik’s application, but does not oppose the transmission of the present file to the Quebec Bar for their consideration. In addition, the Prosecution requests the Chamber to order Mr. Degli to transmit the case file to either the Accused or Mr. Skolnik.[29]

DELIBERATIONS

17.  The Chamber has the authority to reconsider its decisions if satisfied that the underlying factual premise has changed substantially in a way that alters the original outcome.[30] In addition, the Chamber has the authority, pursuant to Rule 45 (H), to instruct the Registrar to withdraw the assignment of counsel upon good cause being shown.[31]

18.  Mr. Skolnik’s application must be considered against the backdrop of the entire proceedings, in particular since 26 October 2004. The Chamber is in the midst of a lengthy and complicated trial, which commenced in April 2002. The Accused, including Mr. Kabiligi, have been in pre-trial detention for nearly eight years. The disqualification of Mr. Degli for serious misconduct as Mr. Kabiligi’s Lead Counsel was unforeseen. The Chamber has made every effort to ensure that the Accused’s defence and that the difficulties faced by his defence are reasonably accommodated. The Chamber’s decision of 19 January 2005 created a workable solution to the present impasse, addressing both Mr. Kabiligi and Mr. Skolnik’s concerns with respect to Mr. Kabiligi’s own proposal.

Mr. Kabiligi’s Refusal

19.  Mr. Skolnik argues that it would be in the interests of justice to permit him to withdraw as Lead Counsel because Mr. Kabiligi refuses to work with him and insists on the return of either Mr. Degli or the selection of another counsel. In particular, he points to Mr. Kabiligi’s statement that Mr. Skolnik was not his counsel and therefore could not take any act in his name.

20.  In reaching its decision of 19 January 2005, the Chamber was mindful that Mr. Kabiligi might resist Mr. Skolnik’s representation given his insistence on Mr. Degli’s return and the withdrawal on 27 December 2004 of his original proposal for Mr. Skolnik to be his counsel. Thus, this cannot constitute a ground for reconsideration.

21.  Appeals Chamber case law has emphasised that an accused does not have the right to unilaterally destroy the trust between himself and his counsel in the hope that such actions will result in the withdrawal of his counsel by the Registrar.[32] Similarly, Mr. Kabiligi’s present unwillingness to cooperate with Mr. Skolnik does not constitute good cause for permitting withdrawal. In the Chamber’s view, the obstacle between Mr. Skolnik and Mr. Kabiligi is the Accused’s reluctance to cooperate with a counsel that he views as being imposed on him. Mr. Kabiligi is a long-time and willing beneficiary of the Tribunal’s legal aid system. The Appeals Chamber has repeatedly emphasized that the right to free legal assistance by counsel does not confer the right to choose one’s counsel.[33] The present practice of assigning counsel is simply to accord weight to the Accused’s preference, but that preference may always be overridden if it is in the interests of justice to do so.[34] In addition, the Appeals Chamber has confirmed that counsel may be assigned to an accused even against his will.[35] Therefore, Mr. Kabiligi’s purported termination of Mr. Skolnik’s mandate is not dispositive.

22.  Since the removal of Mr. Degli on 26 October 2004, Mr. Kabiligi’s own conduct has obstructed the proper and expeditious conduct of trial, despite the Chamber’s efforts to accommodate his new circumstances. Mr. Kabiligi was given an opportunity to propose counsel of his choice on three separate occasions from 26 October until 23 December 2004. Furthermore, after the withdrawal of his proposal on 27 December 2004, Mr. Kabiligi made no move to nominate any other Lead Counsel. On the contrary, he asked that the process of naming a new counsel be stayed and continued to insist on the return of Mr. Degli despite the Chamber’s decision of 20 December 2004. Consequently, the Chamber was forced to act and to instruct the Registrar to appoint Mr. Skolnik as his Lead Counsel both to advance the trial and to safeguard his rights. At this stage, the introduction of a new Lead Counsel, unfamiliar with the case, would inevitably result in undue delay.[36]

23.  In the Chamber’s view, the reasons for instructing the Registrar to assign Mr. Skolnik remain. Mr. Degli, the former Lead Counsel, has been disqualified from participating in the Tribunal’s legal aid system for serious misconduct. Mr. Kabiligi’s case is at a critical juncture, and he is in need of immediate additional legal assistance. Mr. Skolnik is already familiar with the case in general and, consequently, is uniquely situated to rapidly assimilate into the Kabiligi Defence.[37] Mr. Kabiligi’s objections to Mr. Skolnik, after initially proposing him, are unrelated to his competence as a lawyer and his professionalism.

Counsel’s Lack of Consent to Accept Appointment

24.  Mr. Skolnik contends that he never consented to his assignment as Lead Counsel for Mr. Kabiligi. Reference is made to Article 13 (iii) of the Directive which provides that the agreement of counsel is one of the pre-requisites to assignment. In this regard, he points to a number of exchanges in which he expressly conditions his acceptance of any potential assignment on a prior meeting with the Accused.

25.  As the decision of 19 January 2005 reflects, the Chamber was already well aware of Mr. Skolnik’s preoccupations with respect to representing Mr. Kabiligi.[38] Thus, this cannot constitute a ground for reconsideration. In reaching its decision, the Chamber considered in particular Mr. Skolnik’s openness to the possibility of representing Mr. Kabiligi. An order pursuant to Rule 45 quater provides a legal basis for appointing a counsel; it does not, in itself, make the particular appointment.[39] On 24 January 2005, the Tribunal’s Defence Counsel and Detention Management Section (DCDMS) sent Mr. Skolnik a letter indicating that the Registrar had assigned him as Lead Counsel for Mr. Kabiligi. On 27 January 2005, the Deputy Registrar withdrew Mr. Skolnik’s assignment as Co-Counsel for Mr. Bagosora. Mr. Skolnik could have appealed both decisions administratively, but he did not do so. He travelled to Arusha to meet with Mr. Kabiligi mindful that the Accused might resist his representation.

26.  In any event, in the Chamber’s view, Mr. Skolnik’s request for reconsideration is not based on his asserted lack of consent, but rather his concern with respect to Mr. Kabiligi’s unilateral conduct after the appointment.[40] As the Appeals Chamber has stated, “where an accused unjustifiably resists legal representation from an assigned counsel, the counsel’s professional obligations to represent the Accused remain”.[41] Mr. Skolnik has repeatedly emphasized in exchanges with the Accused and before the Tribunal that he has a “positive attitude” about providing Mr. Kabiligi with effective representation.[42] The Chamber is satisfied that Mr. Skolnik is committed to representing Mr. Kabiligi and that the Accused will receive a fair trial with his assistance. The Chamber is sympathetic to Mr. Skolnik’s position and recognizes the inherent difficulties in representing an Accused who refuses to fully cooperate. Mr. Skolnik however must continue to extend his best professional efforts on Mr. Kabiligi’s behalf.

Conflict with Codes of Conduct

27.  Mr. Skolnik argues that the present situation places him in conflict with several provisions of the code of ethics of his national bar association as well as the Tribunal’s Code of Professional Conduct for Defence Counsel (“the Code of Conduct”), prohibiting him from acting on a client’s behalf where the client so demands.[43]

28.  Article 4 (1) of the Code of Conduct provides that “Counsel must advise and represent their client until the client duly terminates the Counsel’s position, or the Counsel is otherwise withdrawn with the consent of the Tribunal”. This provision must be interpreted in light of Appeals Chamber case law prohibiting an Accused from unilaterally destroying the trust between himself and counsel as well as authorizing the Chamber to assign counsel in certain circumstances against an Accused’s will.[44] Mindful of this jurisprudence and in the present circumstances of this case, the Chamber is satisfied that Mr. Skolnik’s continued representation of Mr. Kabiligi is fully consistent with his obligations under the Code of Conduct.

29.  The Tribunal has its own Code of Conduct, a Directive on the Assignment of Defence Counsel, as well as a number of Rules governing Defence counsel. The code of conduct of a counsel’s national bar association has no direct application before the Tribunal. To a certain extent, however, the Tribunal’s Rules have incorporated by reference the standards and qualifications of national jurisdictions.[45] Nevertheless, Article 19 of the Code provides that “[i]f there is any inconsistency between this Code and any other code which Counsel is bound to honour, the terms of this Code prevail in respect of Counsel’s conduct before the Tribunal”. In determining whether there is such an inconsistency, submissions concerning the content of a national code governing a counsel may be relevant. To this end, the Chamber has considered the letter of 22 March 2003 from the Bâtonnier of the Quebec Bar to Mr. Skolnik concerning the present situation.

30.  The Bâtonnier has not indicated whether, in his opinion, Mr. Skolnik is obliged to withdraw under the code of conduct applicable in Quebec. Nevertheless, he has expressed concern with two aspects of the situation presently faced by Mr. Skolnik. First, Mr. Kabiligi appears to oppose the representation by Mr. Skolnik, and has so far failed to collaborate with him in the preparation of the defence. As discussed above, Appeals Chamber case law reflects that an accused is not permitted to unilaterally sabotage the preparation of a defence by refusing to cooperate. Requests to withdraw on this basis have been refused in the past without occasioning any breach of the ethical obligations of counsel.[46] The second concern raised by the Bâtonnier is that the Chamber’s decision concerning Mr. Degli’s request to represent Mr. Kabiligi as pro bono attorney may intolerably impinge upon Mr. Skolnik’s professional independence. However, as the Chamber made clear in its decision, any involvement of Mr. Degli would be at the absolute discretion of Mr. Skolnik.[47] Having considered these submissions, the Chamber does not find that any inconsistency has been established between the ethical obligations under the Quebec Bar and of this Tribunal.

Bagosora Defence Submissions

31.  The submissions of the Bagosora Defence do not alter the Chamber’s position. Once counsel is assigned to an Accused, he may only be withdrawn in exceptional circumstances in accord with Rule 45 (H) and Article 19 (A) of the Directive. In the view of the Registry’s decisions of 24 January and 27 January 2005, the Bagosora Defence’s decision not to name a Co-Counsel cannot be a basis for postponing the case.[48] The Chamber is mindful, nonetheless, that the withdrawal of Mr. Skolnik as Co-Counsel impacted the preparations of the Bagosora Defence, which will be taken into consideration in witness sequencing.

FOR THE ABOVE REASONS, THE CHAMBER

DENIES Mr. Skolnik’s application to withdraw as Lead Counsel for Mr. Kabiligi.

Arusha, 24 March 2005

                          

Erik Møse	Jai Ram Reddy	Sergei Alekseevich Egorov
Presiding Judge	Judge	Judge

[Seal of the Tribunal]