THE INTERNATIONAL
CRIMINAL TRIBUNAL FOR RWANDA (“Tribunal”),
SITTING as Trial Chamber III composed
of Judges Lloyd G. Williams, Q.C., presiding, Andrésia Vaz, and Khalida Rachid Khan
(“Chamber”);
BEING SEISED of the “Extremely Urgent
Motion of the Accused Tharcisse Muvunyi to Instruct the Registrar to Replace
Michael Fisher, Assigned Counsel” filed on 24 September 2003 by
the Accused (“Motion”);
CONSIDERING the “Prosecutor’s Reply to
the Accused Tharcisse Muvunyi’s Motion to Order
the Registrar to Replace his Lead Counsel, Michael Fisher” filed on 2 October
2003 (“Response”);
CONSIDERING the “Registrar’s Response
to the Extremely Urgent Motion Filed by the Accused Tharcisse Muvunyi in
Order for the Trial Chamber to Direct the Registrar to Withdraw Mr. Michael
Fisher as Lead Counsel” filed on 21 October 2003 (“Registrar’s Response”);
and the Interoffice Memorandum sent by the Defence Counsel Management Section
on 10 November 2003 (“Memorandum”);
CONSIDERING the Statute of the Tribunal
(“Statute”) and the Rules, especially Rule 45(H);
NOW REVIEWS the Motion, pursuant to Rule
73(A) of the Rules, solely on the basis of the written briefs filed by the
parties.
Submissions
of the Parties
Accused
1.Accused Tharcisse Muvunyi requests the Trial Chamber to direct the
Registrar to replace his Lead Counsel because of material difficulties,
especially lack of communication. He asserts that Counsel does not reply
to his numerous messages. Since September 2002, he has failed to communicate
with Lead Counsel.
2. Accused Muvunyi also asserts, in support of his request, that Lead
Counsel has never agreed to work with him on any defence strategy. Nor
did he proceed to select Co-Counsel to assist him. Finally,
Lead Counsel allegedly never went to Rwanda, and he contacted just one of the individuals
whom the Accused indicated to him as being potential witnesses.
Defence Counsel
3. In a letter Lead Counsel addressed to the Accused on 2
September 2002, following certain
criticism expressed by the latter, Lead Counsel expressed his willingness
to be replaced if it was the Accused’s final decision. But Lead Counsel
also wrote in a letter dated 19 November 2002 to Defence Counsel Management Section, that he was
not prepared to discharge himself without the authority of the Tribunal.
Prosecutor
4. The Prosecutor does not object to the Accused’s
request as long as no delay is occasioned to the proceedings on the merits.
The Prosecutor argues that, since June 2002, the Defence and the Chamber
have been notified of his readiness for trial. The Prosecutor adds that he
intends to file a request for severance of Tharcisse Muvunyi’s trial
from that of his co-Accused.
Registrar
5.The Registrar submits that, when he listed Counsel of his choice,
the Accused was reminded in vain that he might encounter some difficulties,
Mr. Fisher being English-speaking. The Registrar justifies his Decision
by stating the inaccuracy of the Accused’s assertions, and the lack of
good cause for the withdrawal of Lead Counsel.
Deliberations
6. The Chamber notes that, according to the Statute and the Rules,
regarding the assignment of Counsel, there is no right for an accused person
before this Tribunal to choose Counsel. The procedure of assignment implies
that an accused person expresses his wishes, and the Registrar is the only
authority to assign Counsel. The jurisprudence of the two ad hoc Tribunals
has consistently affirmed this practice.
7.The Chamber further notes, pursuant to the Statute, the Rules, and
the Directive on the Assignment of Defence Counsel (“Directive”), that
the Registrar is the only competent authority to assign Defence Counsel.
Any request for replacement of Counsel shall therefore be addressed to
the Registrar. In the present case, the Accused has already applied to
the Registrar, who rejected his application. The President affirmed the Decision of the Registrar.
8.Pursuant to Rule 45(H) of the Rules, “under exceptional circumstances,
[…] the Trial Chamber may instruct the Registrar to replace an assigned
Counsel, upon good cause being shown and after having been satisfied that
the request is not designed to delay the proceedings”.
9. In the present case, the Trial Chamber notes that Lead Counsel has
not taken any action, since the Registrar’s Decision of 14
April 2003, except for two confidential
letters sent to the Accused on 17 April and 23
September 2003. This situation and the absence of confidence constitute exceptional circumstances
in accordance with Rule 45(H) of the Rules.
10. It is the view of the Trial Chamber that the current situation hinders
the proceedings, in so far as the Defence does not appear to be preparing
itself to commence the trial, while the Prosecution has expressed its willingness
for the commencement of the trial. The Chamber will not lightly permit
a change of Counsel. In the present situation there is a deadlock between
the Accused and his Counsel. The continuation of this situation is a hindrance
to the commencement of the trial. The Accused’s request is therefore granted.
However, this Decision shall not be construed as a ground for the Defence
to request a postponement of the Accused’s trial.
FOR THE ABOVE
REASONS,
THE CHAMBER
I. INSTRUCTS the
Registrar to replace Lead Counsel for Accused Tharcisse Muvunyi, as soon
as possible and in accordance with the Rules;
II. REMINDS the Defence that this Decision cannot be interpreted
as implying any delay in the commencement of the trial.
Done in English and French, the French version being
authoritative.
Arusha, 18 November 2003 |
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Lloyd G. Williams, Q.C. |
Andrésia Vaz |
Khalida Rachid Khan |
Presiding Judge |
Judge |
Judge |
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[Seal of the Tribunal] |
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