Case No. IT-04-74-PT

Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge Alphons Orie

Registrar:
Mr. Hans Holthuis

Decision:
30 July 2004

The Office of the Prosecutor:

Kenneth Scott

Counsel for the Accused:

For Jadranko Prlic: Camil Salahovic, Zelimir Par
For Bruno Stojic: Zeljko Olujic
For Slobodan Praljak: Kresimir Krsnik
For Milijov Petkovic: Vesna Alaburic
For Valentin Coric: Tomislav Jonjic
For Berislav Pusic: Marinko Skobic

I. INTRODUCTION

II. DISCUSSION

A. The right of the accused to choose counsel and its limits
B. The issues of conflicts of interest raised

1. Zeljko Olujic, counsel for Ivica Rajic and Bruno Stojic

(a) Charges against the accused
(b) Submissions of the parties
(c) Findings of the Trial Chamber

2. Zelimir Par, co-counsel for Jadranko Prlic and counsel for Vinko Martinovic

(a) Charges and convictions against both clients
(b) Submissions of the parties
(c) Findings of the Trial Chamber

3. Tomislav Jonjic, counsel for Valentin Coric and counsel for Pasko Ljubicic

(a) The charges against both accused
(b) Submissions of the parties
(c) Findings of the Trial Chamber

III. DISPOSITION

I. INTRODUCTION
1. Pending before Trial Chamber I (“Trial Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (the “Tribunal”) are four requests for assignment of counsel, two of which are filed confidentially by the same counsel. On 4 May 2004, Zelimir Par submitted a “Request for the Assignment of Co-counsel,” filed confidentially, in which he sought authorisation to represent the accused Jadranko Prlic. The same request was resubmitted on a confidential basis on 5 May 2004, attaching a letter addressed by Zelimir Par to the Registry on 9 April 2004 (“Par’s Request”). Zeljko Olujic filed a “Request for the Assignment of Lead Counsel to the Accused Bruno Stojic” on 4 May 2004 (“Olujic’s Request”) and Kresimir Krsnik filed a “Request for the Assignment of Lead Counsel to the Accused Slobodan Praljak” on 5 May 2004 (“Krsnik’s Request”). These requests were submitted to the Trial Chamber upon the recommendation of the Registry.¹

2. The six accused in this case were transferred to the Tribunal on 5 April 2004. None of the accused applied for free legal assistance. As a result, counsel are not assigned by the Registrar but are counsel chosen by the accused.² Powers of attorney were filed on 6 April 2004, after the Registrar had determined that the chosen counsel were qualified under Rule 44(A) of the Rules of Procedure and Evidence (“Rules”).

3. At the initial appearance on 6 April 2004, Judge Orie expressed concerns as to the potential existence of conflicts of interest with respect to four defence counsel chosen by the accused, namely Zeljko Olujic, Zelimir Par, Kresimir Krsnik and Tomislav Jonjic, on the ground that they were already representing other defendants before the Tribunal, accused or convicted in the first instance of charges arising from the same or partly similar factual situations as those charged against the accused they represent in this case.

4. Zeljko Olujic is appointed as lead counsel by Bruno Stojic in this case and is the assigned lead counsel of Ivica Rajic in Case No. IT-95-12-PT. Zelimir Par is the appointed co-counsel of Jadranko Prlic in this case and is the assigned lead counsel of Vinko Martinovic in Case No. IT-98-34-A. Kresimir Krsnik is the appointed lead counsel of Slobodan Praljak in this case and is the assigned lead counsel of Mladen Naletilic in Case No. IT-98-34-A. Tomislav Jonjic is the appointed lead counsel of Valentin Coric in this case and is the assigned lead counsel of Pasko Ljubicic in case No. IT-00-41-PT.

5. While the Registrar found that the four counsel qualified under Rule 44 of the Rules, he also deemed, upon review of the indictments concerned, that a potential for a conflict of interest existed with the representation of another accused to whom they were assigned as counsel. Consequently, Zelimir Par submitted to the Registry a “Declaration as to alleged conflict of interests in the case of defence of the accused Vinko Martinovic, and the accused Jadranko Prlic” on 9 April 2004,³ which denied the existence of any conflict of interest. Zeljko Olujic and Kresimir Krsnik filed similar declarations on 13 April 2004 (“Declarations of Counsel”).⁴ In addition, three accused in other cases, namely Rajic, Ljubicic and Martinovic,⁵ who could be affected by a conflict of interest with the accused represented in this case, submitted written statements whereby they asserted that they had been informed of the existence of potential conflict of interest and agreed that their counsel represent an accused in this case (“Written Consents”). After consulting with the counsel concerned, and considering the Written Consents submitted by some of the affected accused, the Registrar maintained the view that a potential for conflict of interest existed with respect to Mr. Olujic, Mr. Par and Mr. Krsnik. The Registrar further expressed doubts as to whether the accused concerned fully appreciated all possible implications that such representation could have on their defence. He therefore invited these counsel to submit the matter to the Trial Chamber, which the Registrar presented as the entity ultimately responsible for protecting the rights of the accused.⁶ As indicated above, these requests were filed before the Trial Chamber on 4 and 5 May 2004.⁷

6. On 14 May 2004, the Prosecution filed a general “Submission Regarding Conflicts of interest Concerning Defence Counsel” (“General Submission”), where it expressed concern about actual and potential conflicts of interest with respect to counsel Zeljko Olujic, Zelimir Par, Kresimir Krsnik and Tomislav Jonjic. Two additional submissions were filed on 14 May 2004, in which the Prosecution presented its concerns in more detail regarding respectively Zelimir Par and Tomislav Jonjic (“Submission on Par and Jonjic”),⁸ and Kresimir Krsnik (“Submission on Krsnik”).⁹ Zelimir Par, co-counsel for the accused Jadranko Prlic, filed a response to the Submissions on 18 May 2004 (“Par’s Response”). Tomislav Jonjic, counsel for Valentin Coric, filed a “Response to Prosecution’s Submissions Regarding Conflicts of Interest of 14th May 2004” on 19 May 2004 (“Jonjic’s Response”). Zeljko Olujic, lead counsel for Bruno Stojic, filed a “Response to the Prosecution’s Submission Regarding Conflict of Interests Concerning Defence Counsel (Stojic)” on 20 May 2004 (“Olujic’s Response ”). On 21 May 2004, Kresimir Krsnik, counsel for the accused Slobodan Praljak, filed a “Response of the Counsel of the Accused Slobodan Praljak to Prosecution’s Submissions Regarding Conflicts of Interests of 14th May 2004” (“Krsnik’s Response”). On 27 May 2004, the Prosecution filed, confidentially, a reply to Olujic’s Reponse (“Prosecution Reply”).¹⁰ Counsel Olujic replied to the Prosecution Reply through a confidential filing dated 1 June 2004 (“Olujic’s Reply”).¹¹

7. On 16 June 2004, Slobodan Praljak addressed a letter to the Registrar informing him that, pursuant to his agreement with Mr. Krsnik and by reason of a possible conflict of interest with regard to Mr. Krsnik’s previous work at the Tribunal, he declines to be represented by Mr. Krsnik and instead chooses Bozidar Kovacic and Nika Pinter as his counsel and co-counsel.¹² The issue of potential conflict of interest with regard to Mr. Krsnik has therefore become moot.

8. Two requests remain before the Trial Chamber, namely Olujic’s Request and Par’s Request. Although no request is presented by Mr. Jonjic, the Prosecution has filed submissions in his respect, to which the counsel responded, and the Trial Chamber will briefly consider them.

9. A public hearing was held on 19 and 20 July 2004 (“Hearing”), where the counsel concerned were invited to respond to additional verifications before the pre-trial Judge.
   II. DISCUSSION
   A. The right of the accused to choose counsel and its limits

10. The right to choose counsel is a fundamental right of the accused and is recognised by Article 21 (4)(b) of the Statute, which incorporates Article 14 of the International Covenant on Civil and Political Rights of 1966.¹³

11. However, this right is not without limits. The Appeals Chamber has on several occasions stated that “the right to free legal assistance by counsel does not confer the right to choose one’s counsel”¹⁴ and that the decision of whom to assign is at the discretion of the Registrar, in accordance with the procedure laid down in the Directive on Assignment.¹⁵ The Registrar usually does take into consideration the choice expressed by the accused, “but it is within the Registrar’s discretion to override that preference if (he ( considers that it is in the interests of justice to do so.”¹⁶

12. Counsel chosen by the accused must also meet the requirements of Rule 44(A) of the Rules, under the control of the Registrar.

13. Actual or potential conflict of interest is another limit to the accused’s choice.¹⁷ An accused should be prevented from choosing counsel who is unable to defend him to the best of his interests. Under Article 14 of the of Professional Conduct for Counsel Appearing Before the International Tribunal (the “Code”),¹⁸ a counsel must refrain from representing a client when such representation is, or may reasonably be expected to, affect, or be affected by, the representation of another of his current or former clients. Article 14 of the Code provides:

    A. Counsel owes a duty of loyalty to a client. Counsel also has a duty to the Tribunal to act with independence in the interests of justice and shall put those interests before his own interests or those of any other person, organisation or State.

    B. Counsel shall exercise all care to ensure that no conflict of interest arises.

    C. Counsel shall not represent a client in connection with a matter in which counsel participated personally and substantially as an official or staff member of the Tribunal or in any other capacity, unless the Registrar determines, after consultation with the parties and taking account the views of the Chamber, that there is no real possibility shown that a conflict between the former and present assignment exists.

    D. Counsel or his firm shall not represent a client with respect to a matter if:

    i. such representation will be, or may reasonably be expected to be, adversely affected by representation of another client;

    ii. representation of another client will be, or may reasonably be expected to be, adversely affected by such representation;

    iii. the matter is the same or substantially related to another matter in which counsel or his firm had formerly represented another client ("former client"), and the interests of the client are materially adverse to the interests of the former client; or

    iv. counsel’s professional judgement on behalf of the client will be, or may reasonably be expected to be, adversely affected by:

    1. counsel’s responsibilities to, or interests in, a third party; or
    2. to counsel’s own financial, business, property or personal interests.

    E. Where a conflict of interest does arise, counsel shall:

    i. promptly and fully inform each potentially affected present and former client of the nature and extent of the conflict; and

    ii. either:

    1. take all steps necessary to remove the conflict; or
    2. obtain the full and informed consent of all potentially affected present and former clients to continue the representation unless such consent is likely to irreversibly prejudice the administration of justice.

14. The obligations of counsel under Article 14 of the Code stem from a “duty of loyalty to a client” and a “duty to the Tribunal to act with independence in the interests of justice.” This matter should primarily be a matter of assessment by counsel. Practically, counsel is the one who can fully evaluate the existence or a risk of conflict between clients: he knows who are his current and former clients, what information he received or is likely to receive from them and he is the one who has a full grasp of each case in which he has acted as a counsel. Legally, he is under a professional obligation to abide by Article 14 of the Code and is subject to disciplinary measures in case of breach.¹⁹ A Trial Chamber therefore normally presumes that counsel complies with his professional obligations.²⁰ The privileged lawyer -client relationship warrants that judicial authorities should avoid, to the extent possible, to interfere in this relationship.

15. However, the Trial Chamber has a statutory obligation, as set forth in Articles 20 and 21 of the Statute of the Tribunal, to ensure the fair and expeditious conduct of the proceedings, with full respect of the rights of accused. The existence, or risk of conflict of interest may impact on the conduct of the trial. Counsel may be reluctant to pursue a line of defence, to adduce certain items in evidence, or to plead certain mitigating factors at the sentencing stage, in order to avoid prejudicing another client. He may thus be prevented from providing full and complete assistance to his client. There is also a risk that a conflict of interest arises in the course of trial, which may prompt counsel to withdraw from the case, thereby causing delay in the proceedings, to the detriment of the accused. This may further justify that some witnesses be called back in order to have them testify on matters that counsel did not touch upon by reason of a potential or actual conflict. Such disruption in the proceedings is even more damaging in cases, like the present one, involving several accused.

16. To conclude, counsel, before accepting to represent a client, is bound by a professional duty to ensure that he will be in a position to defend this client in full independence and with loyalty. Counsel’s duty is not exclusive of the Trial Chamber’s inherent powers deriving from its duty to ensure the right of the accused to a fair and expeditious trial and proper administration of justice.²¹ Where the existence or a reasonable expectation of conflict of interest is obvious, the Trial Chamber cannot presume any longer that counsel has fulfilled his professional obligations, including Article 14 of the Code, but it falls to the Trial Chamber to guarantee that each accused is effectively assisted by counsel²² and to ensure that the integrity of the proceedings is not endangered. The risk of conflict of interest would be obvious in cases where counsel represents two accused, who are, at least partly, charged with the same criminal acts, committed during the same period of time and in the same area. The Trial Chamber must then assess factors such as the objective likelihood of conflict and the harm that could be caused to the accused and the proceedings, especially in cases, as this one, which concern several accused. It must further explore whether counsel is aware of all potential conflicts of interest and has properly assessed their possible consequences. After reviewing these elements, the Trial Chamber determines whether the risks and damage that could be caused are such as to jeopardise the right of the accused to a fair and expeditious trial or proper administration of justice, and, if it finds that that is so, takes the appropriate measures to restore or protect the fairness of trial and the integrity of the proceedings. Such measures include barring counsel from representing an accused. The Trial Chamber concurs in this respect with the Hadzihasanovic Decision which, noting that the Trial Chamber is entitled, under the Rules, to exclude counsel from representing any suspect or accused before the Tribunal,²³ inferred that “the Chamber certainly has the power to take less far-reaching steps aimed at ensuring a fair trial and the proper administration of justice in a concrete case pending before that Chamber.”²⁴
    B. The conflicts of interest considered
    1. Zeljko Olujic, counsel for Ivica Rajic and Bruno Stojic

17. Zeljko Olujic is the assigned lead counsel of Ivica Rajic and has been chosen by Bruno Stojic as his lead counsel in the present case.

    (a) Charges against the accused

18. Ivica Rajic is charged, under Articles 7(1) and 7(3) of the Statute, with acts committed in Vares and Stupni Do (Bosnia and Herzegovina) between October 1993 and December 1993. The main criminal acts are alleged to have been committed on or about 23 October 1993. Ivica Rajic is charged with these acts on the basis of his de jure and de facto command and control of various Croatian Defence Council units in his area of responsibility (including Kiseljak, Kakanj and Vares municipalities), including the Ban Jelacic Brigade, the Bobovac Brigade and units known as the “Maturice” and “Apostoli.”²⁵

19. Bruno Stojic is presented in the Indictment as the head of the HVO department (later Ministry) of Defence from 3 July 1992 until November 1993²⁶ and, in this capacity, “that body’s top political and management official, in charge of the Herceg-Bosna/HVO armed forces”, who exercised “de jure and de facto power, effective control and substantial influence over all parts and branches of such forces’ operations.”²⁷ Paragraphs 207 through 216 of the Indictment refer to acts committed in Vares and Stupni Do between October 1993 and December 1993. Ivica Rajic,²⁸ as well as the “Maturice” and “Apostoli” units,²⁹ are mentioned among those who took part in these criminal acts. Bruno Stojic is charged for these acts as a member of a joint criminal enterprise under Article 7(1) of the Statute³⁰ and as a superior under Article 7(3) of the Statute.

    (b) Submissions of the parties

20. Mr. Olujic avers that no conflict of interest exists between the two accused. Mr. Olujic first argues that a conflict of interest is excluded by the mere fact that both accused claim their full innocence.³¹ Mr Olujic also considers that no point of contact can exist between his two clients, given their position in the hierarchy:³² Ivica Rajic was an army commander, while Bruno Stojic is accused as a civilian authority.³³ According to Mr. Olujic, this excludes any risk of conflict of interest between the two accused.³⁴ Mr. Olujic adds that, even if one takes as a hypothesis that both accused were linked by a superior-subordinate relationship, it is well known that claiming lack of discipline by, and control over, subordinate units on the one hand, or claiming mere execution of superior orders on the other hand, does not exonerate an accused. As both accused intend to plead their complete innocence, none of them will base their defence on this alleged relationship.³⁵ When the Pre-trial Judge pointed to Mr. Rajic’s claim that he was stopped from conducting investigations by Mate Boban, who is presented as Rajic’s superior, albeit a civilian authority,³⁶ and as one of the members of the joint criminal enterprise pleaded in the Indictment, Mr. Olujic responded that this claim was made in a different context and could not be transposed to the relation between Rajic and Stojic because both clients were informed in detail about this and nevertheless assured him of their willingness to be represented by him.³⁷ Mr. Olujic admits that Rajic’s defence strategy thus far is to blame higher-up authorities ³⁸ but nevertheless argues that his clients’ consent constitutes a guarantee that no conflict will arise.³⁹ Mr. Olujic explains in this respect that he obtained both accused’s unconditional consent to his representing Mr. Stojic in this case.⁴⁰ Mr. Olujic however specifies that “unconditional” consent does not mean absolute consent and acknowledges that his clients could withdraw their consent at any point in time.⁴¹

21. Bruno Stojic confirmed at his initial appearance that he discussed the matter with his counsel and insisted on having Mr. Olujic as his counsel.⁴² The accused further asserted at the Hearing that no superior-subordinate relationship existed between him and Mr. Rajic, since the latter came under the Main Staff, with which Stojic had nothing to do.⁴³ Mr. Stojic claims that he left the ministry of Defence a few days after the events of Stupni Do and that Mr. Rajic surely does not blame him when referring to the civilian superior authorities who prevented him from investigating the events.⁴⁴ Mr. Stojic also explained that he chose Mr. Olujic as counsel on the basis of his reputation, that he has been working with him for the last four or five months and wants to keep him as lead counsel.⁴⁵

22. Mr. Olujic insists on the right of the accused to choose counsel⁴⁶ and notes that both cases are presided by Judge Liu Daqun, which, in his view, makes the conflict of interest “practically impossible” to arise “because the defence is controlled in both cases.”⁴⁷

23. Finally, Mr. Olujic points out that he is assisted by a co-counsel in the case against Ivica Rajic and therefore “could at any time withdraw from the case, with no danger of creating any kinds of problems in terms of the proceeding itself.” A co-counsel would also be appointed in the case against Mr. Stojic, thereby likewise permitting Mr. Olujic to withdraw from this case if needed, without causing undue delay or hardship in the proceedings.⁴⁸ When asked from which case he would withdraw in case of conflict, Mr. Olujic stated that it was too hypothetical a question for him to answer.⁴⁹

24. The Prosecution points out that Ivica Rajic is charged with “exactly the same crimes in Vares and Stupni Do as charged against Bruno Stojic in this case,”⁵⁰ Mr. Stojic being charged, in part, as “Rajic’s co-perpetrator and Article 7(3) superior.”⁵¹ In particular, the Prosecution rejects Mr. Olujic’s argument that, because Mr. Stojic was a member of the civilian authorities and Mr. Rajic was an army commander, no conflict of interest can arise. On the contrary, it is the Prosecution’s case, as presented in the Indictment, that Mr. Stojic had “de jure and/or de facto authority over Mr. Rajic and other military commanders.”⁵² The Prosecution attaches to its Submission two documents, signed by Mr. Stojic, which would indicate a superior-subordinate relationship between Stojic and Rajic. The Prosecution claims that a conflict of interest would arise if Mr. Stojic takes the position that crimes were committed by HVO soldiers under Mr. Rajic’s command in Vares and Stupni Do but that he had no knowledge of it, or if Mr. Rajic pleads that the orders to commit the crimes in Stupni Do came in part from Mr. Stojic, or that other troops directly responsible to Mr. Stojic committed the crimes.⁵³ A conflict of interest would also arise if one or both accused decided to plead guilty and to co-operate with the Prosecution.⁵⁴ The Prosecution concludes that there is “an irreconcilable conflict in Mr. Olujic representing both Mr. Rajic and Mr. Stojic concerning these exact same crimes,”⁵⁵ that “the conflicts in this situation are too direct and severe, and cannot be corrected by a waiver or consent.”⁵⁶ Finally, the Prosecution claims that a withdrawal of counsel at a late stage of the case would be very detrimental to the entire case.⁵⁷

25. In his Response, Mr. Olujic explains that he sees no problem in a situation where one client may take a position which is contrary to the other client’s interests, as the lawyer is here to advise them and instruct them on how to minimize all potential conflicts of interests.⁵⁸ He argues that “in the case of simultaneous representations the idea is to coordinate the two defenses in order to make the punishment less severe. Mr. Olujic goes on by saying that “(o(nly if the two accused got into a dispute, and that would happen if they didn’t have a mediator they could both trust, all the ‘dirty laundry’ of the two accused would come out before the Tribunal.”⁵⁹ Mr. Olujic adds that “having one counsel is the best way of ensuring that the two clients are not asked to be witnesses against each other”⁶⁰ and concludes that there is no conflict of interest.⁶¹ Rather, Mr. Olujic understands that the Prosecution tries, by its arguments, to convey the idea that a “counsel being paid by an outside source includes a presumption of the counsel’s guilt.”⁶² When asked, at the Hearing, to further explain his position, Mr. Olujic indicated that he responded this way because he was attacked by the Prosecution⁶³ and meant that, “with the knowledge gained in both cases, he would be able to help both clients to select what is best for them and what will give them the best possible position” in their trial.⁶⁴

26. Regarding the hardships caused by withdrawal of counsel at a later stage of the proceedings, Mr. Olujic responds that a withdrawal can arise for many reasons other than conflict of interest since a client can dismiss a counsel at any point in the proceedings and concludes that “(i(rregularities occurring in the case of ‘conflict of interests’ are no more different or greater than in the case where there is no such conflict.” ⁶⁵ Mr. Olujic also questions the authenticity and reliability of the documents annexed to the General Submission. He concludes, among other things, that the Prosecution “is trying to take away the interests of the accused” and “to impose its tactics, aims and even counsels.”⁶⁶

27. The Prosecution replies that it is up to the Defence counsel to show convincingly that no conflict of interest exists and/ or that such conflict has been effectively resolved. It adds that, by explaining that his role would consist of mediating and co-ordinating the best interest of his two clients, Mr. Olujic in fact recognises that a conflict of interest exists.⁶⁷ This position, in the Prosecution’s view, is consistent and reinforced by a 22 July 1998 report from the Chief of the Croatian Intelligence Service, attached to the Prosecution Reply, and which states, among other things, that “the defence of one indictee must not jeopardize other persons, especially those against whom a procedure is already being led.”⁶⁸ Finally, the Prosecution claims that the fact that a counsel may have to withdraw from the case in the course of the proceedings for reasons other than conflict of interest, does not mean that such problem should not be addressed.⁶⁹

28. The Defence contests the authenticity and reliability of the 1998 report attached to the Prosecution Reply and further points out that this document does not concern him since his name is not listed therein, as opposed to other defence counsel’s names.⁷⁰

    (c) Findings of the Trial Chamber

29. Both accused are charged with the same criminal acts and were allegedly linked by a relatively close superior-subordinate relationship at the relevant time. It is apparent, from a reading of the two indictments, that a conflict of interest is likely to arise, if not already existing, between the two accused. Mr. Olujic’s written and oral arguments are not pertinent. First, the arguments he advances to deny the existence or likelihood of conflict are inaccurate. The mere fact that one accused is charged as a civilian authority while the other is charged as a military authority does not exclude the existence of a superior-subordinate relationship between them. Second, the fact that the same judge would conduct both proceedings is irrelevant to the issue. On the one hand, there is no guarantee that the same judge would sit in both trials. Judge Liu Daqun is the presiding judge of the Trial Chamber in charge of these cases in pre-trial. Once ready for trial, these cases will be referred to the first Trial Chamber available, which may not include Judge Liu Daqun as one of its members. On the other hand, while a judge hearing both cases might notice the existence of conflict more easily, his presence would not prevent such a conflict from arising. Finally, the mere fact that both accused intend to plead their complete innocence is not in itself a guarantee against conflict of interest. Innocence can be pleaded in many different ways and the line of defence may, and often does, evolve in the course of the case. It is the duty of counsel to take this factor into consideration when assessing the potential for conflict of interest. In fact, several arguments proffered by Mr. Olujic do suggest that potential conflict of interest will, as a certainty, hamper his defence of Mr. Stojic. Mr. Olujic states, for instance, that he “would coordinate the two defenses”, act as a “mediator” between the accused “to minimize all potential conflicts of interest”, or that being the counsel of both accused is “the best way of ensuring that the two clients are not asked to be witnesses against each other.” Mr. Olujic implicitly admits by these utterances that he may not be able to diligently and promptly protect his clients’ best interests as expected and required of counsel : to suggest compromise rather than to pursue, without any restriction, the interests of his clients, is in contradiction with the counsel’s professional obligations.

30. The Trial Chamber finds that a conflict of interest is very likely to arise and that such likelihood will very likely prevent Mr. Olujic from defending Mr. Stojic in the best of his interests.

31. The remedies suggested by Mr. Olujic should a conflict of interest arise are not satisfactory. Replacement of lead counsel inevitably causes delays and disrupts the conduct of the proceedings. It could even cause irreparable prejudice to the accused, as it may be difficult for the new counsel to alter the defence strategy adopted by his predecessor and plead the case as he would have, had he represented the client from the beginning of the case. Replacement of counsel during proceedings should be avoided to the extent possible and a Trial Chamber, under its inherent powers to ensure a fair and expeditious trial and proper administration of justice, will generally not allow withdrawal of counsel in the course of the proceedings, unless proper justification is provided and the Trial Chamber is satisfied that it is in the interests of justice to allow it. Conflict of interest is a proper justification for withdrawal of counsel. However, if the Trial Chamber determines, from the beginning of the case or at its earlier stage, that there is a substantial likelihood that such conflict will arise in the course of the proceedings, it should not allow such risk to be taken, unless there are compelling reasons to do so. A distinction should be made in this regard between avoidable and unavoidable risks. As stated in the Hadzihasanovic Decision, it is the duty of the Trial Chamber to make sure that the proceedings would not be halted by foreseeable, and therefore avoidable, risks: “(t(he Chamber cannot wait until foreseeable harm is done to the proceedings. It is for the Chamber to prevent such foreseeable harm.”⁷¹

32. The “unconditional” consent expressed by Mr. Stojic at his initial appearance and the Written Consent submitted by Ivica Rajic cannot have the effect of validating the appointment if the Trial Chamber is convinced that the interests of justice dictates otherwise.
    2. Zelimir Par, co-counsel for Jadranko Prlic and counsel for Vinko Martinovic

33. Zelimir Par is the assigned lead counsel of Vinko Martinovic since the beginning of the case. He is Jadranko Prlic’s co-counsel in this case, the lead counsel being Camil Salahovic.

    (a) Charges and convictions relating to the two clients

34. On 31 March 2003, Vinko Martinovic was found guilty by a Trial Chamber, as a commander, within the HVO, of the Vinko Škrobo anti-terrorist group (“ATG”),⁷² for criminal acts committed by this unit and himself in the Mostar municipality, from May to September 1993.⁷³ The Trial Chamber found that the Vinko Škrobo ATG held positions at the confrontation line next to the Health Centre at least from mid-May 1993 onwards.⁷⁴ The Trial Chamber convicted Martinovic of unlawful labour, inhumane acts, inhuman treatment and cruel treatment under Articles 2(b), 3, 5(i) and 7(1) for, among other things, ordering prisoners detained at the Heliodrom detention center to perform labour in dangerous conditions in the area of responsibility of the Vinko Škrobo ATG, for ordering detainees to assist in the looting of private property and for ordering prisoners to turn a private property into the headquarters of the Vinko Škrobo ATG.⁷⁵ Martinovic was also convicted of unlawful transfer of civilians for events that occurred on 9 September 1993⁷⁶ and on 29 September 1993.⁷⁷

35. Jadranko Prlic is presented in the Indictment as holding the position of head of the HVO Department of Finance from 15 May 1992 until 14 August 1992, when he was appointed President of Herceg-Bosna’s HVO. He became the Prime minister of Herceg -Bosna in late August 1993 and remained so throughout the indictment period.⁷⁸ In this capacity, he is alleged to have “had de jure and/or de facto power, effective control and/or substantial influence over the Herceg-Bosna/HVO government and military.”⁷⁹ Paragraphs 35, and 88 through 135, refer to criminal acts committed in the Mostar municipality from April 1993 to April 1994. Prlic is alleged to be responsible for these acts, as a member of a joint criminal enterprise under Article 7(1) of the Statute, and as a superior under Article 7(3) of the Statute. The charges against Prlic include allegations of inhumane acts (forcible transfer) and unlawful transfer of a civilian, particularly for events that occurred on 9 May 1993⁸⁰ and late September 1993.⁸¹ The Indictment also charges Prlic with inhumane acts, inhuman treatment and cruel treatment, notably on the ground that Bosnian Muslims detained at the Heliodrom detention center were allegedly used for forced labour or as human shields.⁸²

    (b) Submissions of the parties

36. Zelimir Par declares that, before accepting Mr. Prlic’s power of attorney, he carefully considered whether conflicts of interest could arise between his two clients and concluded that, regardless of possible defence strategies eventually adopted, no conflict of interest existed or could arise in the future between these two cases.⁸³ Mr. Par points out that the proceedings against Vinko Martinovic, including on appeal, will be completed by the time this trial begins⁸⁴ and that Martinovic’s defence is by now fully defined and finalised, thereby permitting a confident assessment that no conflict of interest can arise with the defence of Mr. Prlic.⁸⁵ Mr. Par also notes that Jadranko Prlic is accused as a civilian authority while Martinovic was convicted as a military commander.⁸⁶ While admitting that a civilian can in theory be the superior of a military officer,⁸⁷ Mr. Par claims that, in this particular case, to present Martinovic as being under the command and control of Jadranko Prlic, is “but a theoretical construct, according to which Jadranko Prlic would be responsible for every crime committed by any HVO soldier in the territory of Herceg-Bosna during the period in time relevant for the indictment.”⁸⁸ Mr. Par insists that no superior-subordinate relationship existed between Mr. Martinovic and Mr. Prlic, that Martinovic has consistently pleaded that his unit was placed under the command of the military commander for the units on the separation line and that he had no connection of any kind with other military or civilian authorities.⁸⁹

37. Mr. Par claims that the opinion expressed by the accused themselves is the decisive factor to consider in appreciating whether a conflict of interest exists or is likely to arise.⁹⁰ He however specified at the Hearing that he consulted both his clients only after being satisfied himself that no conflict existed between the two accused.⁹¹ Both accused are of the opinion that no conflict of interest exists between their defences and have agreed to be defended by the same counsel.⁹² Mr. Prlic himself confirmed at his initial appearance that he had discussed the matter with his counsel and believed that any conflict of interest will be avoided.⁹³ Mr. Prlic further explained at the Hearing that he never had any contact with Mr. Martinovic, that nothing linked him with Martinovic and that, while appreciating the Trial Chamber’s involvement and assistance in this matter, he asked to be allowed to take the risk of a hypothetical conflict and to exercise his right to choose Mr. Par as co-counsel.⁹⁴

38. Mr. Par adds that the fact that both cases are/were presided over by Judge Liu Daqun and conducted by the same Prosecutor, renders the existence of a conflict of interest “practically impossible.”⁹⁵ Mr. Par however specified at the Hearing that he thereby simply meant that he would be monitored by the judges and the Prosecution.⁹⁶

39. Finally, Mr. Par insists that he would act in this case as a co-counsel and as such is not in charge of designing or even influencing the line of defence, which is adopted by the lead counsel together with his client.⁹⁷ In case a conflict of interest nevertheless arises, his position as co-counsel would also guarantee that his withdrawal from the case would not cause any undue delay or hardship in the proceedings.⁹⁸

40. Mr. Par further points out that he has proved his professionalism as a defence counsel in two previous cases before this Tribunal.⁹⁹

41. The Prosecution submits that “Mr. Prlic is charged as both a co-perpetrator and an Article 7(3) superior of Mr. Martinovic, concerning the same crimes, as well as others.”¹⁰⁰ The Prosecution further maintains that Mr. Prlic is charged, in part, with Article 7(3) responsibility for Mr. Martinovic’s behaviour, despite the fact that he is a civilian authority while Martinovic is convicted as a military officer.¹⁰¹ The Prosecution therefore doubts that Mr. Prlic and Mr. Martinovic were fully informed of the potential conflicts that could arise when they gave their consent to Mr. Par representing them both.¹⁰² As a result, the Prosecution suggests that their consent be received “before a judge (or the Chamber) in an on-the-record hearing where steps are taken to ensure that each of the clients gives a fully-informed and voluntary waiver after being appropriately advised of the issues.”¹⁰³

42. Mr. Par indicated that he would not object to the procedure suggested by the Prosecution in order to obtain the consent of his two clients.¹⁰⁴

    (c) Findings of the Trial Chamber

43. The charges brought against Mr. Prlic cover acts for which Mr. Martinovic has been convicted at trial. Further, Mr. Prlic and Mr. Martinovic are allegedly linked by a superior-subordinate relationship. This relationship is however more remote than the alleged relationship linking the two accused previously considered. Vinko Martinovic was a relatively low-level commander within the HVO, and, according to the Naletilic & Martinovic Trial Judgement, his unit was under the HVO Main Staff chain of command or placed under the command of the area commander when sent to the front lines.¹⁰⁵ Mr. Prlic allegedly acted as the Prime Minister of the Herceg-Bosna/HVO government. While, according to their indictments, a superior-subordinate relationship does exist between the two accused, the apparent remoteness of one from the other in the alleged hierarchy ensures that the likelihood for potential conflict of interest between them is acceptably low. The Trial Chamber notes in this respect that the name of Mr. Prlic did not come up during the Martinovic & Naletilic trial in relation to Martinovic.¹⁰⁶ Under these circumstances, the Trial Chamber must give credit to the assessment conducted by counsel. The Trial Chamber also notes that Mr. Par would act as a co-counsel in this case. The impact of a potential conflict upon the defence of a client is therefore less serious. The disruption and delays likely to be caused by his withdrawal in the course of the case, although not negligible, would also be less significant than if he acted as lead counsel.

44. Mr. Martinovic submitted his Written Consent for his defence counsel to also represent Mr. Prlic, under the understanding that no conflict of interest existed between the two defences. At the initial appearance, Mr. Prlic expressed his belief that any conflict of interest will be avoided.¹⁰⁷ He reiterated his willingness to be represented by Mr. Par at the Hearing. The Trial Chamber is satisfied that the accused exercised his right to choose counsel in full knowledge of the relevant facts.
    3. Tomislav Jonjic, counsel for Valentin Coric and counsel for Pasko Ljubicic

45. Tomislav Jonjic is the lead counsel of Pasko Ljubicic and has been chosen as lead counsel by Valentin Coric in the present case. Mr. Jonjic has not submitted any request before the Trial Chamber as the Registrar did not express any concerns regarding the existence of a potential or actual conflict of interest. The matter was however addressed in court during the initial appearance, and the Prosecution filed submissions with respect to Mr. Jonjic.

    (a) The charges against the two accused

46. Pasko Ljubicic is charged, under Articles 7(1) and 7(3) of the Statute, with acts committed in the municipalities of Vitez and Busovaca from January to July 1993.¹⁰⁸ The main criminal acts are alleged to have been committed in April 1993. He is charged with these acts on the basis of his position, within the HVO, as commander of the 4th military police battalion from January 1993 until 1 July 1993, then as assistant chief of the military police administration for the Central Bosnia Operational Zone until November 1993.¹⁰⁹

47. Valentin Coric is presented in the Indictment as the Deputy for Security and commander of the HVO police administration from April 1992 until 20 November 1993 and minister of interior in the Croatian Republic of Herceg-Bosna from about 20 November 1993 onwards.¹¹⁰ In this capacity, he is alleged to have had “de jure and/or de facto command and control of the HVO Military Police” and to have “exercised effective control and substantial influence over the HVO Military Police,” including “the authority and responsibility to command and discipline members of the HVO Military Police.”¹¹¹ Paragraphs 33 and 34 of the Indictment refer to criminal acts committed in the municipalities of Vitez and Busovaca in April 1993. The specific villages cited in the Indictment however differ from those listed in the indictment against Pasko Ljubicic, with the exception of the village of Ahmici. Valentin Coric is alleged to be responsible for these acts, as a member of a joint criminal enterprise under Article 7(1) of the Statute, and as a superior under Article 7(3) of the Statute.

    (b) Submissions of the parties

48. Mr. Jonjic indicates that, in his opinion, no conflict of interest exists between the two cases,¹¹² although he acknowledges that the events that occurred in Ahmici on 16 April 1993 constitute the core of the charges brought against Ljubicic.¹¹³ He adds that he discussed the question with Mr. Ljubicic who fully consented to his representing Coric in this case.¹¹⁴ Mr. Coric declared at his initial appearance that he was aware that his counsel also represented Mr. Ljubicic and that he and his counsel believed that there was no conflict of interest.¹¹⁵

49. Mr. Jonjic further states that there is no real danger that both cases will be heard at the same time, since the Ljubicic case is ready for trial, while this case is just starting. However, he has informed Mr. Coric that, should such situation happen, he would have to withdraw from this case.¹¹⁶

50. The Prosecution acknowledges that the existence of any actual or potential conflicts in connection with Mr. Jonjic representing Mr. Coric and Mr. Ljubicic appear, at the present time, not to be serious. It would however advise that Mr. Jonjic obtain full waiver from his two clients.¹¹⁷ In the Prosecution’s view, “these waivers should be taken before a judge (or the Chamber) in an on-the-record hearing where steps are taken to ensure that each of the clients gives a fully-informed and voluntary waiver after being appropriately advised of the issues.”¹¹⁸

51. Mr. Jonjic responds that the Prosecution is not able to establish in concrete terms what the conflict of interest may consist of.¹¹⁹ He points out that the two accused are not charged with the same events in the Lasva valley¹²⁰ and that no conflict of interest can therefore arise. Mr. Jonjic further insists that “(t(his is a matter of concern exclusively of the interests of the accused and of the professional ethics of the counsel” and that the intervention of the Prosecution in this field is inappropriate. Finally, Mr. Jonjic indicates that both accused have expressed their agreement in writing and that he does not object to the Trial Chamber or the Registry’s making additional enquiries, should they deem them necessary.¹²¹ Mr. Coric indicated at the Hearing that he is aware of a theoretical risk of conflict between the two cases but stated that the events that overlap in the indictments are minor. He hence believes that no conflict will arise and reiterated his willingness to be defended by Mr. Jonjic.¹²²

    (c) Findings of the Trial Chamber

52. The criminal acts charged against the two accused are partly similar, in particular as far as they concern Ahmici. The two accused are also linked with an alleged superior -subordinate relationship, albeit quite remote. Upon a reading of both indictments, a risk of conflict of interest does exist. However, this risk is acceptably low and the Trial Chamber is satisfied, following the Hearing, that counsel properly assessed the risks and fully advised his clients. Under these circumstances, the Trial Chamber must give credit to the assessment conducted by counsel. The Trial Chamber is also aware that the Registrar, after consulting with counsel and the accused he represents, concluded that the risk for potential conflict of interest was not such as to interfere with the proper administration of justice.
    III. DISPOSITION

    PURSUANT TO Articles 20 and 21 of the Statute, the Trial Chamber,

    BARS Mr. Zeljko Olujic from representing Mr. Bruno Stojic and invites Mr. Stojic to appoint another lead counsel within a period of one month. In the meantime, Zeljko Olujic shall continue to represent the accused.

    REQUESTS the Office of Legal Aid and Detention Matters (OLAD) to provide the Trial Chamber with explanations in case a new counsel is not appointed within the one-month period.

    CONFIRMS the appointment of Mr. Zelimir Par as co-counsel for Mr. Prlic.

    CONFIRMS the appointment of Mr. Tomislav Jonjic as lead counsel for Mr. Coric.

Done in English and French, the English version being authoritative.

_________________
Judge Liu Daqun,
Presiding

Done this Thirtieth day of July
At The Hague
The Netherlands

[Seal of the Tribunal]