OR: ENG

TRIAL CHAMBER II

Before: 
Judge William H. Sekule, Presiding
Judge Winston C. Matanzima Maqutu
Judge Arlette Ramaroson  

Registrar:   Adama Dieng

Date:   3 October 2001

The PROSECUTOR
v.
Joseph NZIRORERA

Case No. ICTR-98-44-T

 
The Office of the Prosecutor:
Melinda Pollard
Kerstin Keith

Counsel for Nzirorera:
Andrew McCartan
Martin Bauwens

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA ("the Tribunal"),

SITTING as Trial Chamber II ("the Chamber"), composed of Judges William H. Sekule, Presiding, Winston C. Matanzima Maqutu, and Arlette Ramaroson;

BEING SEIZED of the "Extremely Urgent Motion for the Withdrawal of Messrs McCartan and Bauwens from Joseph Nzirorera’s Defence (Article 20 (4)(d) of the Statute, Rules 45 and 73 of the Rules of Procedure and Evidence)" ("the Motion"), with Annexes, filed by Accused Joseph Nzirorera on 3 and 4 July 2001 respectively;

CONSIDERING the letter of Co-Counsel Martin Bauwens in response to the Motion, filed on 4 July 2001;

CONSIDERING the letter of Counsel Andrew McCartan in response to the Motion, filed on 17 August 2001;

CONSIDERING the "Duplique à la réponse de Me Andrew Mc Cartan à la requête du 20 juin 2001" filed by the Accused on 28 August 2001;

CONSIDERING the letter of Co-Counsel Martin Bauwens responding to the Accused, filed on 4 September 2001;

CONSIDERING the confidential Memorandum addressed by the Registrar to the Judges of Trial Chamber II pursuant to Rule 33(B) of the Rules of Procedure and Evidence ("the Rules") regarding the "Motion by the Accused Joseph Nzirorera for the withdrawal of his Counsel Mr Andrew Mc Cartan and Mr Martin Bauwens" with Annexes (including the letter dated 11 April from Counsel Mc Cartan to Mr Caldarone and Mr Preira), filed on 20 September 2001 and served to the Parties pursuant to an Order by the Chamber to that effect;

NOTING the letter addressed by Counsel Mc Cartan to the Registry and filed on 19 September 2001;

NOTING the letter from Mr Nzirorera addressed to Trial Chamber II Judges regarding the "Forwarding of documents" and the "Independent investigation into my case" filed on 24 September 2001;

NOTING the Registrar’s "Decision Rejecting the Request of Mr Joseph Nzizorea (sic) for Withdrawal of His Lead Counsel Mr Andrew Mc Cartan," filed on 15 May 2001;

NOTING the President’s "Decision on Review, in Accordance with Article 19(E) of the Directive on Assignment of Defence Counsel", filed on 18 June 2001;

HAVING HEARD the Accused, the Lead Counsel, the Prosecution and the Registry on 21 September 2001 in closed session pursuant to Rule 79 (A) (iii) of the Rules;

CONSIDERING the Statute of the Tribunal ("the Statute") and the Rules of Procedure and Evidence ("the Rules"), specifically Articles 16, 19 and 20 of the Statute and Rules 45 and 73 of the Rules;

SUBMISSIONS OF THE PARTIES

 Mr Nzirorera’ Submissions

1.         On the basis of Rules 45(H) and 73(A), the Accused requests that the Trial Chamber withdraw the appointment of Lead Counsel McCartan, and Co-counsel Bauwens.  The Accused alleges, inter alia, with respect to both Counsel that:

1.1.      There exists a "profound and irreconcilable disagreement between [himself] and his Counsel concerning defence strategy";

1.2.      Both Counsel lack "competence, loyalty, honesty, diligence and a spirit of collaboration," all of which are requirements for the defence of an Accused in a case involving such serious accusations;

1.3.      Both Counsel "are more concerned with the interests of unknown third persons and with selfish financial interests than with the defence of their client"; and

1.4.      Both Counsel, in a meeting on 3 May 2001, allegedly denied the Accused a presumption of innocence to which he is entitled and compared him to Nazi criminals.

2.         Consequently, the confidence that should exist between the Accused and his Counsel no longer exists.

3.         More specifically, the Accused reproaches his Lead Counsel with the following:

3.1.     Lead Counsel has never been able to produce a defence strategy document;

3.2.     Lead Counsel decided to dismiss the team’s legal assistant without prior consultation with the Accused;

3.3.     Lead Counsel has problems communicating with his client, because Lead Counsel speaks poor French and the Accused speaks poor English. These problems had been overcome in the past with the assistance of said legal assistant;

3.4.     Lead Counsel seeks to conduct the defence without taking into account the instructions of his client, and has failed to file a motion as had been requested by the Accused.

3.5.     Lead Counsel has acted dishonestly to the detriment of the interests of his client and of the Tribunal, by asking the legal assistant inter alia to alter his fee claims in order to maximise his payments.

Counsel’s Response

Lead Counsel McCartan disputes the allegations of the Accused and contests the existence of exceptional circumstances, asserting inter alia that:

3.6.   He is not in the service of any third party but independently fulfils his role as Defence Counsel and, in light of more than 20 years of experience, works to ensure that the Accused is given the best possible defence.

3.7.   At no point did he challenge the presumption of innocence of the Accused.  To share with the Accused the gravity of his situation was an invitation to obtain the fullest collaboration between the Accused and his defenders and cannot be compared to challenging the presumption of his innocence.

3.8.   Mr McCartan refutes the accusation of financial dishonesty with regard to the Tribunal, and states that his sole concern was to be remunerated for services rendered for the defence, in accordance with the billing rules put in place by the Registry. He reiterated that because some charges had been disallowed by the Registry, he had merely expressed his concern that all expenses be accounted for rightfully.

3.9.   In regard to the dismissal of the Legal Assistant, Mr McCartan alleged that he made such a decision after learning that the Assistant had breached certain rules at the Tribunal’s Detention Facilities.

4.      During the 21 September 2001 hearing, while recalling the principle of confidentiality binding himself and the Accused, Mr McCartan explained the context of his letter dated 11 April 2001 addressed to Mr Caldarone, Chief of the Lawyers and Detention Facilities Management Section (LDFMS), and annexed to the Registrar’s confidential Memorandum addressed to the Judges pursuant to Rule 33(B) of the Rules. Mr McCartan recalled that the said letter predated any withdrawal request by the Accused Nzirorera.  According to Counsel, the matter discussed in the said letter would appear to be the actual reason behind the Accused’s request to obtain his dismissal, adding that any other reason advanced by the Accused is merely a smokescreen.

5.      Counsel McCartan stated that he sought advice from his Bar in Scotland as to whether or not he had an obligation to keep the matter at stake confidential. Having been assured that he was not so bound, on 11 April 2001 Mr McCartan forwarded to the Registry his concern about alleged attempts by the Accused since November 2000 to extract a "kick back" and also requested advice from the Registry.

6.      Co-Counsel Bauwens also contests the allegations of the Accused. He emphasises that he fully recognises the principle of the presumption of innocence and that he has fulfilled his duty as Defence Counsel in the context of an independent professional relationship inspired by mutual respect.

Mr Nzirorera’s Reply

7.      Mr Nzirorera argues inter alia that Mr McCartan has not properly replied to his complaints.  The Accused affirms that the professional independence of Counsel should conciliate with the Defence strategy desired by his client. The Accused alleges that, before this Motion, he had already indicated by a letter of 1 November 2000 that he had lost confidence in Mr McCartan.

8.      The Accused states that Counsel has not denied the content of the letter regarding the fee claims and that the procedure of "altering and maximising his fees" should be considered as violating Articles 11 and 13 of the Code of Professional Conduct for Defence Counsel. He further asserts that Counsel’s 20 years experience practicing Common Law is no guarantee of his ability to conduct a defence in line with "his wishes and his instructions".

9.      Mr Nzirorera adds that Counsel should not hide behind the obligation of confidentiality not to respond to the Accused’s serious accusations.

10.  The Accused denies having any knowledge of the letter dated 11 April 2001 from Mr McCartan to Mr Caldarone Chief of LDFMS  regarding allegations of fee-splitting or of the content of the Registrar’s confidential Memorandum until the two documents were filed on 20 September 2001 by order of the Chamber. Nonetheless, Mr Nzirorera denies Counsel’s allegation of attempts of fee-splitting on his part.

HAVING DELIBERATED

11.     The Chamber has considered the President’s Decision on Review of 13 June 2001 in which she ruled that:

"A factual determination on the allegations made by the Accused against his assigned Lead Counsel, which related to the integrity, competence and diligence of the said Counsel and his dismissal of the investigator cannot be made under the purview of this review [….] [T]he Trial Chamber before which the Accused appears will be in a better position to determine these allegations, in particular the standard of representation made by Lead Counsel on behalf of the Accused."

12.     The Chamber recalls that Rule 45(H) of the Rules states that:

"under exceptional circumstances, at the request of the suspect or accused or his counsel, the 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."

13.     The Chamber further notes the relevant case-law of this Tribunal and of the International Criminal Tribunal for ex-Yugoslavia (ICTY), and concurs with the findings of the "Decision on Request by Accused Mucic for Assignment of New Counsel" of 24 June 1996 (Prosecutor v. Zejnil Delalic et al, Case No. IT-96-21) ("the Mucic Decision"), that

"[t]he Trial Chamber […] has a responsibility to examine the reasons for the Accused’s dissatisfaction with the Counsel assigned and determine whether those reasons constitute good cause. The Trial Chamber must be satisfied that the reasons are genuine and that the request is not made by frivolous reasons or in order to pervert the course of justice e.g. by causing additional delay."

14.     Accordingly, the Chamber should first be satisfied that exceptional circumstances exist and good cause has been shown to warrant withdrawal of counsel, and second, that the request is not designed to delay the proceedings.  The Chamber notes that, in support of his request for withdrawal of Counsel, the Accused develops several points allegedly amounting to the showing of exceptional circumstances.  The Chamber will review and decide upon these allegations respectively before turning to Counsel’s appraisal of his client’s conduct.

I.       Exceptional Circumstances and Showing of Good Cause

Allegations of Counsel’s Lack of Professionalism

15.     Having reviewed the Accused’s specific allegations, the Chamber recalls its "Decision on Ntahobali’s Motion on Withdrawal of Counsel" of 22 June 2001 (Prosecutor v. Nyiramasuhuko and Ntahobali, Case No. ICTR-97-21-T), in which it clarified the status and duties of Defence Counsel, noting particularly that :

 "in the exercise of his professional judgement, Counsel is independent of the Accused, even if Counsel is expected to maintain a proper Counsel-Client relationship.  The Trial Chamber has to be assured that a Counsel properly conducts an accused’s defence and protects the latter’s lawful interest during trial, but also has to verify that the accused does not abuse this right.[…] [a]s a matter of principle, the Chamber finds that an accused is mistaken when saying that counsel must consult with him, whereas there are matters of professional judgement for which Counsel alone is liable. While Counsel should take full instructions about facts surrounding the case, this does not imply that Counsel have to consult with the accused whenever any step in his defence is taken by the Counsel.  Nevertheless, Counsel have to keep the Accused informed of the steps taken to protect his interests and provide the Accused with a reasoned explanation as to why they took such steps."

16.      The Chamber finds that the events and documents cited by Nzirorera in his request do not support the conclusion that Lead Counsel and Co-Counsel acted in a unprofessional manner in conducting the Accused’s Defence.

17.     Concerning the organisation of the Defence Team, the Chamber concurs with the findings in the "Decision on the Accused’s Request for Withdrawal of His Counsel" rendered on 29 March 2001 (Prosecutor v. Hassan Ngeze, Case No. ICTR-97-27-I) ("the Ngeze Decision"), in which Trial Chamber I noted that

"[t]he appointment of co-counsel, assistants and investigators are administrative matters falling within the powers and discretion of the Registrar. Lead counsel must initiate requests for such appointments, and he is held responsible for complying with the practice directions of the (LDFMS). It is clear that the accused is not entitled as of right to have co-counsel, investigators and assistants appointed; nor can he assert the right of decision over the appointment or termination of their contracts. As stated above, these are matters for Lead Counsel." (Emphasis added.)

18.     As to the communication difficulties between the Accused and his Lead Counsel, the Chamber notes that Counsel are appointed by the Registry, who can verify inter alia their language abilities.  The Chamber also notes that it was with particular reference to language issues that Lead Counsel requested, and was assigned, a bilingual co-Counsel.  (See letter from Lead Counsel McCartan to Mr. Caldarone (LDFMS) dated 30 September 2000, and the subsequent assignment of Mr. Martin Bauwens).

19.     Having considered the circumstances of this case, the Chamber is of the view that Mr Nzirorera has misunderstood both the relationship between an Accused and his Counsel, and the professional role and responsibilities of the latter in preparing the Accused’s defence and in organising the Defence Team.  The Chamber thereby concurs with the Decision of the Registrar of 14 May 2001 that the general manner in which Counsel conducts the defence is within the purview of his role "as director of the defence team, […] in conformity with the Code of Professional Conduct for Defence Counsel". In the instant case, the Chamber cannot find that the Accused has substantiated his claim of any improper behaviour by Counsel in exercising his professional functions.

Allegations of financial dishonesty of Counsel

20.     The Chamber has considered Article 16(1) of the Statute, and the Directive on the Assignment of Defence Counsel ("the Directive"), which together establish the authority of the Registrar over all administrative matters relating to assigned Defence Counsel.

21.     The Chamber considers that the allegation of financial dishonesty by Counsel is an administrative matter that falls under the power of the Registry, not a Trial Chamber.  The Chamber also notes that the initial request of the Accused before the Registrar did not include any allegations of financial dishonesty. The Chamber acknowledges that that this is a serious allegation which needs to be investigated by the proper authority.

Request for New Counsel

22.     The Chamber has considered the Annexes to the Motion and notes the letter dated 18 May 2001 from the Accused to the Registrar requesting (1) the reconsideration of the decision rejecting the Accused’s request for withdrawal of counsel, and (2) the replacement of his current Counsel with other Counsel that have been involved in other cases.  Although the Accused does not entertain this specific request in his Motion, the issue was mentioned during the hearing and the Chamber is not far from concluding that the purpose of the instant proceedings may not be, as is alleged, for the Accused to rid himself of incompetent counsel, but rather for him to be able to have counsel of his own choice.  (See Similar reasoning and conclusion of Trial Chamber I in the "Decision on the Motions of the Accused for Replacement of Assigned Counsel /Corr." of 11 June 1997 (Prosecutor v. Gérard Ntakirutimana, Case No. ICTR-96-17-T) (Ntakirutimana Decision)).

23.     In the instant case, and for the reasons explained above, the Chamber is not satisfied that the Accused has shown either the existence of exceptional circumstances or good cause that would justify the withdrawal of both Counsel.  Consequently, the Chamber will not consider whether or not the condition pertaining to the absence of delay of the proceedings envisaged under Rule 45 (H) of the Rules has been met.

II. Allegations of attempts of fee-splitting

24.     Mindful of the seriousness of the issues that were to be ventilated during the hearing of 21 September 2001 on the basis of the written material submitted to the Judges pursuant to Rule 33 (B) of the Rules, the Chamber decided to order that these written materials, originally classified as confidential, be filed and made available to all the Parties concerned by the proceedings.  Nonetheless, in view of the nature of the issues to be discussed and, more particularly, the allegation of attempted fee-splitting, the Chamber suggested that the hearing be held in closed session to protect the interests of justice pursuant to Rule 79(A) (iii) of the Rules.

25.     The Chamber has considered the Parties’ submissions as well as the correspondence filed or produced and it is of the view that the request for fee-splitting could have been made by the Accused and that, Counsel’s refusal to accede to that request may have been the reason behind the motion for withdrawal.  In any event, even if this were indeed the factual scenario, the refusal on the part of Counsel to commit an improper act, would not in any way constitute exceptional circumstances or good cause, pursuant to Rule 45 (H) of the Rules, to warrant the withdrawal of assigned Counsel.

26.     The Chamber strongly notes that fee-splitting matter, including allegations in this case, should be exhaustively examined by the Tribunal’s Registry which should also take all necessary measures to inform all accused and Counsel before this Tribunal that fee-splitting is unacceptable and merits sanctions under the Rules.

For the foregoing reasons,

THE TRIBUNAL HEREBY

DENIES the Accused’s Motion for Withdrawal of Counsel.

DIRECTS the Registry to examine fee-splitting matters, including allegations in this case, and to take all necessary measures to inform all accused and Counsel before this Tribunal that fee-splitting is unacceptable and merits sanctions under the Rules.

Judge Winston C. Matanzima Maqutu appends a separate and dissenting opinion to this Decision.

Arusha, 3 October 2001

(Seal of the Tribunal)