Untitled Document

A. First Ground of Appeal: Akayesu was denied the right to be defended by Counsel of his choice [61]

44. Akayesu submits generally, that the Trial Chamber erred in depriving him of his right to Counsel of his own choosing, and of his right to defend himself in person. He contends that the resulting prejudice carries a termination of proceedings.[62]

45. On 8 March 1996, Akayesu made a request to the Registrar for assignment of counsel to be paid by the Tribunal. On 25 April 1996, Akayesu requested that Mr. Scheers be assigned as his Counsel.[63] On 10 May 1996, the Registrar assigned Mr. Scheers.[64] Mr. Karnavas, with Mr. Scheer’s agreement, represented Akayesu at the 31 October 1996 hearing.[65] At the beginning of the hearing, Mr. Karnavas made an oral request to represent Akayesu on an exceptional basis, and expressed the wish to be assigned as Lead Counsel by the Tribunal.[66] Akayesu did not object to said assignment.[67] Thus, on that same day, the Trial Chamber issued a decision directing the Registrar to withdraw Mr. Scheers’ assignment as Counsel for Akayesu and to immediately assign Mr. Karnavas as his Lead Counsel.[68] On 1 November 1996, the Registrar formally assigned Mr. Karnavas and withdrew Mr. Scheers’ assignment, on 4 November 1996.

46. On 11 November 1996, Akayesu filed an application with the Tribunal for the withdrawal of Mr. Karnavas’ assignment, and on 12 November 1996, he requested the Registrar to assign Mr. Scheers as his Counsel. On 20 November 1996, the Tribunal heard in camera Akayesu’s application to withdraw the assignment of Mr. Karnavas. At the end of the hearing, the Tribunal withdrew Mr. Karnavas’ assignment and directed the Registrar to assign another counsel to Akayesu before the trial, which was scheduled to commence on 9 January 1997.[69]

47. On 22 November 1996, the Registrar assigned Mr. Tiangaye as Lead-Counsel for Akayesu. Akayesu continued to seek the services of other Counsel such as Mr. Lisulo.[70] On 16 December 1996, Akayesu wrote to the Registry insisting on his choice of Mr. Scheers and complaining about Mr. Tiangaye’s assignment. On 27 December 1996, Akayesu requested that the Registrar assign to him another Counsel, Mr. Marchand. On 30 December 1996, the Registrar in reply to the letter of 27 December 1996, informed Akayesu that Mr. Tiangaye would be his Defence Counsel and that he would be assisted by Mr. Monthe as Co-counsel.

48. The trial commenced on 9 January 1997. On that same day, Akayesu filed a motion in which he requested that his Counsel be replaced and reiterated his wish to be represented by Mr. Marchand. On 13 January 1997, Akayesu made a request to the presiding judge, asking to be the only person allowed to cross-examine the first three witnesses and stating that he wished to defend himself in person. The Trial Chamber granted him leave to do so at that hearing, but stressed that both Counsel would remain his assigned Counsel pending the Chamber’s decision on his request for replacement of Counsel.[71] On 16 January 1997, the Chamber rendered its decision dismissing Akayesu’s request for change of Counsel on the grounds mainly that Akayesu had failed to show “exceptional circumstances” as required under Article 19(A) of the Directive on the Assignment of Defence counsel.[72] On 21 January 1997, at the start of the hearing, the Trial Chamber advised Akayesu that he could have another Counsel (i.e. Mr. Marchand), provided Counsel agreed to represent him pro bano.[73] On 31 January 1997, allegedly under pressure, from his Counsel, Akayesu wrote to the President of the Tribunal stating that he was satisfied with his Counsel.

49. Akayesu submits that he was deprived of his right to counsel of his own choosing and of his right to defend himself in person. He argues that, those two rights are set forth in Article 20 (4) (d) of the Statute of the Tribunal.

(a) The right to counsel of one’s own choosing

50. Akayesu recalls that the Tribunal refused to assign him two Counsel of his own choosing (Mr. Scheers and Mr. Marchand) on the ground that it could not bear the costs of assigning another defence counsel. He submits that despite such refusal, on 9 January 1997, the Registry assigned him two Counsel (Mr. Tiangaye and then Mr. Monthe) against his will. He submits further that on that date, the regulations in force did not allow for the assignment of more than one counsel. Akayesu contends that, the construction of the Statute by the Registry (denying indigent accused the right to counsel of their own choosing) “nullifies the right to choose one’s own counsel since all those accused before the Tribunal are, as far as he knows, indigent”.[74]

51. Relying on the Tribunal’s case law, Akayesu contends that the right to counsel of one’s own choosing must be real and effective.[75] Under Article 20 of the Statute, which is “constitutional in nature”,[76] any person accused of such serious crimes must be able to freely choose counsel to represent him throughout the proceedings. It is Akayesu’s submission that, such an interpretation is, in particular, supported by the practice before the Nuremberg Tribunal[77] with respect to assignment of counsel to the accused and, are also a reflection of international law, including the provisions of the International Covenant on Civil and Political Rights.[78] (“The ICCPR”)”

52. Akayesu also points out inconsistencies in the Registry’s conduct. Indeed, he asserts that at the 31 October 1996 hearing, the Tribunal denied him assistance by more than one counsel but two months later, “in contravention of the Rules”, the Registrar assigned him two counsel who were, unknown to him.[79] He submits further that the delay in the trial is not attributable to him, but rather to the Tribunal’s management services and to the Prosecution, which was late in disclosing evidence.[80]

53. Akayesu further avers that even if, at any particular time, he chose one or the other of the Counsel proposed by the Registry, such choice was not free and, in any case, was made under exceptional circumstances.[81] As regards Mr. Karnavas, Akayesu argues that he was “faced with an imminent trial and subjected to pressure from Mr. Karnavas, who gave him the impression that he ran the risk of being convicted if he did not say that he was his counsel”, and consequently, he “acquiesced to being represented by Mr. Karnavas. Once he realized what Mr. Karnavas’ tactics’ were, he requested that his assignment be withdrawn.”[82] Akayesu contends that, “in the face of the Tribunal’s repeated and unjustified refusals, he was obliged to accept the situation but such acceptance should in no way be considered as a waiver of his right which had been systematically violated over the preceding months.”[83] Consequently, all his efforts were “normal and logical actions in the circumstances.”[84]

54. Moreover, Akayesu submits that he legitimately insisted on being represented by Mr. Scheers, firstly because the Trial Chamber had never explicitly ruled out the possibility of his being on the Defence team,[85] and secondly because he had never been informed that Mr. Scheers had been struck off the list of assignable counsel.[86]

55. Lastly, citing to the Kambanda Appeals Judgment, Akayesu contends that the Appeals Chamber can in no event hold that he waived the right to raise the issue of the violation of his right inasmuch as “he has, on several occasions, often expressed his dissatisfaction, both in writing and orally.”[87]

56. On the other hand, the Prosecution submis that, neither the Statute nor the Rules expressly recognizes the right to counsel of one’s own choosing. While the Tribunal’s case law affords the accused the possibility of indicating their preference when counsel is to be assigned,[88] it remains that change of Defence Counsel occurs only under exceptional circumstances. Now, one of the factors to be taken into consideration in determining whether there exists such exceptional circumstances is the interests of justice. More specifically, the issue is whether change of counsel will cause undue delay in the proceedings.[89] The Prosecution submits that in the case at bench the prevailing practice at the Tribunal was complied with, and that the Trial Chamber’s decision was justified in the interests of justice. Thus, the Trial Chamber properly exercised its discretion in directing the Registrar to withdraw Mr. Scheers’ assignment to Akayesu after it had found that he had failed to appear before it without any acceptable or justifiable reason.[90]

57. It is the Prosecution’s submission that, the Trial Chamber deemed it necessary to commence the trial on 9 January 1997: “necessary measures were thus taken to ensure that the trial proceed normally,”[91] including the assignment of a Co-counsel to Akayesu. The Prosecution points out that such assignment in no way caused prejudice to Akayesu and that, to the contrary, it was beneficial for him to be able to come to trial in the best of conditions on the date set by the Trial Chamber.[92]

(b) The right to defence in person

58. Akayesu contends that the Trial Chamber never ruled on this issue. He submits that he asked to defend himself in person on several occasions, namely on 17 January 1997, 21 January 1997, 27 January 1997 and 5 February 1997, and concludes that the Trial Chamber nevertheless refused to entertain his requests. Akayesu submits further that he was fully capable of representing himself and that the Trial Chamber could not force him to be represented by counsel.[93]

59. In the Prosecution’s submission it is up to the Trial Chamber to decide whether it is necessary for an accused to be represented by counsel.[94] The Prosecution argues that in the case at bench the Trial Chamber granted Akayesu leave to cross-examine witnesses.[95] In the Prosecution’s submission, the Chamber ruled correctly when it required Akayesu to have counsel. It is the Prosecution’s contention that such a decision was justified for three main reasons: firstly, Akayesu’s attitude was not entirely clear inasmuch as he was at one and the same time asking to represent himself and to be represented by counsel of his own choosing. Secondly, Akayesu was charged with the most serious crimes under international law, which made for a more complex case. Thirdly, that he made repeated such requests shows that he required assistance of counsel.[96]

60. In general, the issue of the right of an indigent accused to counsel of his own choosing raises the issue of balancing two requirements: on the one hand, affording the accused as effective a defence as possible to ensure a fair trial, and on the other hand, proper use of the Tribunal’s resources.

61. The Appeals Chamber holds that, in principle, the right to free legal assistance of counsel does not confer the right to counsel of one’s own choosing. The right to choose counsel applies only to those accused who can financially bear the costs of counsel. In this connection the Appeals Chamber recalls its findings in Kambanda:

62. The Registrar assigns counsel to an indigent accused from a list of available counsel whom he finds eligible under the Tribunal’s formal requirements.[98] To be sure, in practice an indigent accused may choose from among counsel including in the list and the Registrar generally takes into consideration the choice of the accused.[99] Nevertheless, in the opinion of the Appeals Chamber the Registrar is not necessarily bound by the wishes of an indigent accused. He has wide discretion, which he exercises in the interests of justice.

63. In the instant case, the Appeals Chamber holds that the rights of the Accused as provided under Article 2(4) of the Statute were indeed complied with. The Appeals Chamber recalls that Akayesu requested three times to change counsel, addressed numerous letters and requests to the President of the Tribunal and the Registrar, and that the Trial Chamber allowed him to change counsel twice. Firstly, Akayesu’s initial request was for Mr. Scheers to be assigned to him as Counsel and, Mr. Scheers was indeed so assigned by the Registrar on 10 May 1996. Thus, Akayesu was granted his first choice. Secondly, as the Trial Chamber, in its Decision of 31 October 1996, had withdrawn Mr. Scheers’ assignment,[100] the Registrar rightly concluded that said Counsel did not meet the Tribunal’s requirements for inclusion in the list of counsel and, consequently, struck him from the list. Therefore, Akayesu could no longer request that Mr. Scheers be assigned to him. Lastly, once the trial had commenced, the Trial Chamber had a duty to ensure that the rights of the Accused were respected and that the trial proceeded fairly and expeditiously. In this context, the refusal to assign Mr. Marchand was justified, all the more so, since as the presiding judge stated on 21 January 1997, the credentials of said Counsel, at least at that time, had not been verified. Therefore, the Appeals Chamber is of the view that the Trial Chamber reasonably considered all the facts of the case, prior to and after the commencement of the trial. The Trial Chamber ensured that Article 91(1) of the Statute[101] and Article 19(A) of the Directive on Assignment of Defence Counsel were effectively applied. Indeed, the Appeals Chamber recalls that under Article 19(1) of the Directive assignment of counsel may be withdrawn only “in exceptional circumstances.” [102]

64. In the circumstances of this case, the Appeals Chamber finds that there were indeed reasonable grounds for denying Akayesu’s request for assignment of the two Counsel concerned. Akayesu failed to show any serious prejudice suffered by him. Accordingly, the Appeals Chamber dismisses all of Akayesu’s grounds of appeal in respect of choice of counsel and finds it appropriate to state its disagreement with the manner in which the right for an indigent accused to legal assistance paid for by the international community was abused in the instant case.

(b) The right to conduct one’s own defence

65. Given Akayesu’s insistence on being represented by counsel of his own choosing, the Appeals Chamber finds that it was difficult for the Trial Chamber to discern any firm and unyielding desire on the part of the accused to represent himself. Even though Akayesu did, on several occasions, express the desire to defend himself, his attitude towards the Chamber suggested otherwise. Moreover, the Appeals Chamber notes that the Trial Chamber allowed Akayesu, pending assignment of new counsel, to cross-examine Witness K by himself. Therefore, Akayesu has failed to show proof of alleged errors by the Trial Chamber.

66. The Appeals Chamber finds that Akayesu’s allegations are without merit and that the Trial Chamber acted reasonably in light of most exceptional circumstances in the instant case. Therefore, the Appeals Chamber rejects all the grounds of appeal relating to the right to conduct one’s own defence.

[61] The grounds of appeal grouped under this general ground of appeal are detailed in annex B. The Appeals Chamber notes that Akayesu himself withdrew the following ground of appeal from his Consolidated Notice of Appeal: “ One other time, on or about 27 January 1997, the Appellant asked to change counsel. An Attorney offered to defend him pro bono, but the court refused. Once more, the Court committed an error of law that goes to jurisdiction, by violating the Statute.” The Appeals Chamber further adds, that on 17 April 2000, it requested the Registrar to furnish both parties with copies of certain documents relating to the trial before the Trial Chamber. See Decision of 17 April 2000. On the other hand, in its Decision of 22 August 2000, the Chamber dismissed Akayesu’s “Motion for an Order to Produce the Transcript of the Hearing of 23 January 1997 and for the Transcript to be Admitted as New Evidence, and for Leave to Amend the Notice of Appeal with regard to the Exclusion of the Appellant from the Said Hearing.” Akayesu wanted to add a new ground of appeal relating to the choice of Counsel based on the transcript of the aforementioned hearing. Therefore, the Appeals Chamber did not consider that ground of appeal.

[63] Jean-Paul Akayesu’s request for assignment of Counsel, filed on 24 June 1996.

[64] From the time of his arrest in Zambia until he was declared indigent by the Registrar, Akayesu was defended by Mr. Lisulo, Mr. De Temmerman and Mr. Scheers.

[65] Indeed, the Trial Chamber received a letter from the assigned Counsel in which he said that he would not be present at the 31 October 1996 hearing because of unresolved financial claims between himself and the Registry, but the rights of the accused would be adequately protected by the temporary assistance of Mr. Karnavas as Defence Counsel in his stead.

[68] Indeed the Trial Chamber held that ‘Taking into account that the officially assigned defence counsel has not appeared before the Tribunal on the scheduled date for commencing the trial on 31 October 1996, which was fixed by the Chamber on 27 September 1996, due to unresolved financial claims presented to the Registrar; Being of the opinion that a financial dispute with the Registrar does not constitute an acceptable reason for refusing to appear on the scheduled trial date, which was fixed in agreement with the assigned Counsel; Finding, therefore that the non-appearance of the assigned counsel, based on reasons which are neither acceptable nor justifiable, provides an exceptional circumstance in this case within the meaning of Article 19 of the Directive [on the Assignment of Defence Counsel]” (Cf. Decision Concerning a Replacement of an Assigned Defence Counsel and Postponement of the Trial), 31 October 1996, p. 3.

[69] See Transcript, 20 November 1996, p. 101 (F). The Chamber’s oral decision was confirmed in a written Decision of the same date: “Whereas Jean-Paul Akayesu has requested the replacement of Mr. Karnavas, the reason being the latter’s behaviour which he considers inappropriate and which, in his opinion, would result in a total lack of confidence in the ability of his counsel to act fully for his defence; Whereas Mr. Karnavas takes exception to all the grievances set forth by Jean-Paul Akayesu, while not objecting, however, to the request made by his client and that, in that regard, he himself had written in his memorandum of 15 November 1996: ‘Given the fact that Mr. Akayesu (...) is unwilling to accept his currently assigned Counsel, it behoves the Registrar to bring this matter immediately to the Tribunal’s attention and urge that a hearing be scheduled forthwith. Mr. Akayesu is entitled to have counsel of his choice. We all must respect his wishes.’; Whereas the Tribunal, without taking a position in the conflict between the accused Akayesu and Mr. Karnavas, notes, however, that given the present circumstances and the resulting lack of confidence of the accused in his counsel, there was indeed an exceptional case, as provided in paragraph (D) of Article 19 of the Directive [on the Assignment of Defence Counsel], as a condition for the replacement of assigned counsel upon decision by a Chamber; Whereas the Tribunal consequently considers it appropriate to accede to the request made by Jean-Paul Akayesu for the replacement of his counsel”. See “Decision on the Request of the Accused for the Replacement of Assigned Counsel,” 20 November 1996, pp. 2 and 3.

[70] Mr. Lisulo has represented him in Zambia.

[72] The Trial Chamber held that, “Considering the extensive correspondence from the accused Jean-Paul Akayesu addressed to the President of the Tribunal regarding the replacement of his Counsel, especially his letter dated 8 January 1997, in which he states that he no longer needs the Tribunal to act on his various letters concerning the assignment of his counsel; Taking note of the successive applications by the accused Jean-Paul Akayesu requesting replacement of counsel assigned to him, having already granted his request twice; Whereas Article 19 of the Directive on the Assignment of Defence Counsel states that only in exceptional cases may the assigned counsel be replaced; Whereas the Tribunal considers that the accused Jean-Paul Akayesu has not proved the existence of such exceptional circumstances” (See “Decision on the Request of the Accused for the Replacement of Assigned Counsel”, 16 January 1997,p. 2.

[73] Indeed The Presiding Judge stated that “The Accused has stated that to the best of his interest [sic] this means that no Lawyer on his own initiative could present himself to defend the Accused. The Tribunal would like to know whether this is the right interpretation. The Registry wanted him to understand that the Tribunal can only pay for one counsel assigned to him but if he can pay for himself or if counsel is willing to represent him free of charge then there is no problem. If Mr. Marshall [sic] is going to represent himself at his expense the Tribunal will have no problem, the Tribunal will not be concerned if he wants to do it free of charge. The only condition is that Mr. Marshall will have to be a qualified counsel who would have all the qualifications to enable him to plead before this Tribunal. Before this Tribunal considers the qualifications of Mr. Marshall, the hearing can continue.” Transcript, 21 January 1997, p 4.

[74] Akayesu’s Brief, Chapter 12, para. 92.

[75] Particularly Tadic Decision (additional evidence); “Decision on the Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarevic, The Prosecutor v. Blagoje Simic, Milan Simic, Miroslav Tadic, Stevan Todorovic, Simo Zaric”, Case No. IT 95-9-PT, ICTY Trial Chamber III of 25 March 1999, See “Akayesu’s Brief ”, Chapter 12, para. 70.

[76] “Akayesu’s Brief”, Chapter 12, para 72.

[80] Ibid, Chapter 12, paras. 83 and 84. See also Akayesu’s Reply, paras. 58 and 218.

[82] Akayesu’s Reply, para. 19. According to Akayesu the choice of Mr. Karnavas was therefore dictated by circumstances. Akayesu states that all he accepted was for Mr. Karnavas to represent him for the day, on 31 October 1996. See Akayesu’s Brief, Chapter 2, para. 87.

[84] The following explanation is given of Akayesu’s behaviour: “Firstly, he wanted to keep Mr. Scheers. Then, he sought the services of Mr. Lisulo, who had defended him in Zambia and whose name was on the list of assignable counsel. He told Mr. Tiangaye of his lack of confidence and satisfaction when he was appointed. He saw Mr. Tiangaye for only a few minutes after he was appointed. Shortly before the trial, Mr. Akayesu was alone: Mr. Tiangaye did not appear until only a few days before the trial. Akayesu’s family had contacted Mr. Marchand, who came to the Tribunal to defend him. The Tribunal did not even allow Mr. Marchand to speak. Mr. Akayesu had emphasized, with good reason, that his lawyers’ preparation of his case was inadequate [... ]. The two Counsel, Tiangaye and Monthe, ought to have withdrawn from the Appellant’s case, as they were ethically obliged to do.” Akayesu’s Brief , Chapter II, paras. 88 and 90.

[85] Akayesu cites in support of his argument a Trial Chamber Decision whereby “Considering the request made by the accused before the Tribunal to have Mr. Karnavas assigned as his Defence Counsel without, however, excluding for all time Mr. Scheers as Co-Counsel, if and when the Directive is amended to this effect”, “Decision Concerning a Replacement of an Assigned Co-Counsel and Postponement of the Trial”, 31 October 1996, p. 3. See “Akayesu’s Reply”, para. 20. According to Akayesu , the Trial Chamber gave him the hope of seeing Mr. Scheers return as Co-Counsel (see Transcript, Appeals Chamber , p. 172).

[86] “Akayesu’s Reply”, para. 21. Akayesu adds that he has never seen any document showing that Mr. Scheers had been disqualified. See Transcript, Appeals Chamber, 1 November 2000, p. 172.

[88] “Decision on the Motions of the Accused for Replacement of Assigned Counsel”, The Prosecutor vs. Gérard Ntakirutimana, Case Nos. ICTR-96-10-T and ICTR-96-17-T, Trial Chamber I, 11 June 1997, p. 6; “Decision on Request by Accused Mucić for Assignment of New Counsel”, Prosecutor vs. Zejnil Delalić et al., ICTY Case No. IT-96-21-T, 24 June 1996, para. 2.

[89] “Prosecution’s Response”, 4 September 2000, para. 3.13.

[90] Ibid., para. 3.23. At the hearing on appeal, the Prosecutor stated “Maître Scheers, for personal reasons, could not be in Arusha for the start of the trial. He was disqualified for that. I therefore do not see [...] what errors the Chamber made. [Akayesu] freely chose [Mr. Karnavas]. Mr. Scheers was disqualified only [...] at the end of the hearing” Transcript, Appeals Chamber, 1 November 2000, pp. 120 and 121.

[91] Transcript, Appeals Chamber, 1 November 2000, p. 123.

[93] “Akayesu’s Reply”, paras. 26 and 27.

[94] “Prosecution’s Response”, 4 September 2000, paras. 3.25 to 3.40.

[95] At the hearing on 13 January 1997. Ibid., para. 3.41.

[97] Kambanda, Appeal Judgment, pp. 11 and 12.

[98] Rule 45 (A) of the Rules provides that “A list of counsel who speak one or both of the working languages of the Tribunal, meet the requirements of Rule 44, have at least 10 years relevant experience, and have indicated their willingness to be assigned by the Tribunal to indigent suspects or accused, shall be kept by the Registrar.”

[99] The Appeals Chamber indeed endeavours to take into consideration the practice of the Tribunal in assessing the circumstances of the case. In its Judgment on the assignment of counsel, the Appeals Chamber held that “(..) the practice of the Tribunal has been to provide a list of approved counsel from which an accused may choose and that Mr. John Philpot was included in this list by the Registrar at the insistence of the Appellant that he desired that Mr. Philpot be assigned to him, and considering further that the Registrar thereby gave the Appellant a legitimate expectation that Mr. Philpot would be assigned to represent him before the Tribunal” Appeals Chamber, 27 July 1999, p. 2. See also “Decision on the Motions of the Accused for Replacement of Assigned Counsel”, The Prosecutor v. Gérard Ntakirutimana, Case Nos. ICTR-96-10-T and ICTR-96-17-T, Trial Chamber I, 11 June 1997, p. 6; “Decision on Request by Accused Mucic for Assignment of New Counsel”, Prosecutor v. Zejnil Delalić et al., ICTY Case No. IT-96-21-T, 24 June 1996, para. 2.

[100] See “Decision on Replacement of Counsel and Postponement of Trial, The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR 96-4-T, Trial Chamber I, 31 October 1996.

[101] Article 19(1) of the Statute provides that: “ The Trial Chamber shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the Rules of Procedure and Evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.”

[102] Article 19(A) of the Directive provides that the Registrar may: (i) In exceptional circumstances, at the request of the accused, or his Counsel, withdraw the assignment of Counsel; (ii) In exceptional circumstances, at the request of Lead Counsel withdraw the assignment of Co-Counsel ; (iii) In the case of a serious violation of the Code of Conduct, withdraw the assignment of Counsel or Co-Counsel.