Srebrenica Exposed: A Word About Plea Agreements

The Association for Defence Counsel of the International Tribunal for the Former Yugoslavia (ADC-ICTY) has challenged the Tribunal's system of payment for representation of indigent or partially indigent defendants. In a legal brief the organization attempted to file with the Appeals Chamber, the ADC-ICTY argued that the current system brings into question 'whether each accused is entitled to a full and competent professional defence, and whether counsel who wish to practice ethically and professionally can any longer do so before this Tribunal.'

In a November 13, 2003 ruling, the Appeals Chamber rejected the application of the ADC-ICTY to raise the issue in the case of the Prosecutor v. Milutinovic, Sainovic and Ojdanic (Ojdanic case), in which the Chamber was asked to overrule a decision of Trial Chamber III, rejecting Appellant-Defence Counsel's application for additional pretrial funds. The Appeals Panel rejected the ADC-ICTY's request to intervene. The opinion noted that the ADC-ICTY was 'effectively [seeking] a review and overhaul of the Legal Aid System. . . .' The Chamber did not find it 'desirable' to do so in the particular case before it. 'A new Legal Aid System was brought into force on 13 October 2000,' the Chamber pointed out.

The Appeals Chamber went on to reject the application for additional resources by Dragoljub Ojdanic's Defence Counsel, upholding decisions by Trial Chamber III and the Registrar. The decision has potentially very serious consequences on Ojdanic's ability to mount a defence. After 11 months of pretrial preparation, his counsel all but stopped working last March when allocated pretrial resources had been exhausted. Funds allocated by the Registrar, who has authority over the matter, were based on an estimate of an 8-month long pretrial period. At the time of the appeal, 18 months had elapsed and Counsel anticipates trial will not commence for another 6 months, resulting in a 24 month pretrial period. Ojdanic has been charged with five counts of crimes against humanity and war crimes for ethnic cleansing and associated acts during the Kosovo War. He was Chief of the General Staff of the Yugoslav Army at the time of the war.

Defence Counsel in another case, Prosecutor vs. Hadzihasanovic and Kubura, are facing similar problems. Trial Chamber II, however, has rejected all their efforts to have pretrial allocation of resources reviewed, finding that they accepted the payment terms when they accepted the case.

The Appeals Panel in the Ojdanic case reasoned similarly. 'The Appeals Chamber further notes that counsel for the Appellant claim that they may be ethically required to withdraw from representing the Appellant because they do not have adequate resources to defend him. The Appeals Chamber observes that the assigned counsel agreed to represent the Appellant, aware of the system of remuneration for assigned counsel, and are bound thereby. There has been no change in the terms of representation or in the initial agreement, and counsel are required to fulfil their obligations to the International Tribunal.' Counsel deny agreeing to the terms of payment or even being consulted about them. Under their reading of the Directive on Assignment of Defence Counsel (Directive), their understanding was that the Registrar would adapt the allotment if the pretrial stage of the proceedings turned out to be 'substantially longer' than estimated.

The payment system for indigent defence was revised to address abuses in the system. According to the Registrar, in changing the system, 'The Registry has taken into account a number of considerations: . . . The need to provide the defence with an incentive to work efficiently and avoid some abuses observed in the past such as invoicing for unnecessary or unaccomplished work; . . . ' The revised system provides for a lump sum payment during the pretrial stage, which varies with the difficulty the Registrar assigns the case. The three levels are: 1) difficult, 2) very difficult, 3) leadership. At each level a maximum number of hours will be remunerated, based on the assumption that level 1 cases will require four months pretrial work, level 2 -- six months, and level 3 -- eight months. There was no evidence to show how the designated time periods were established. Under level III, Defence Counsel will be paid for up to 3000 hours and investigators on their team up to 4000 hours.

The Ojdanic Defence Team provided the Registrar with a detailed accounting of time and expenses. In its brief, it argued to the Appeals Chamber, 'The Registry has never disputed that the hours worked by the defence team were reasonable and necessary for General Ojdanic's defence, and has approved the detailed invoices submitted each month since May 2002 by each defence team member. It has never disputed the reasonableness and necessity of the further work that the defence has represented needs to be done to adequately prepare for General Ojdanic's trial. It simply refuses to acknowledge that its estimate of the resources needed to defend General Ojdanic's case was, is, and will be insufficient to provide for an adequate defence.'

The Directive provides: 'Where counsel has been assigned, the costs of legal representation of the suspect or accused necessarily and reasonably incurred shall be met by the Tribunal subject to the budgetary provisions, rules and regulations, and practice set by the United Nations. All costs are subject to prior authorization by the Registrar. If authorization was not obtained, the Registrar may refuse to meet costs. The Registrar establishes maximum allotments for each defence at the beginning of every stage of the procedure taking into account his estimate of the duration of the phase. In the event that a stage of the procedure is substantially longer or shorter than estimated, the Registrar may adapt the allotment. In the event of disagreement on the maximum allotment, the Registrar shall make a decision, after consulting the Chamber and, if necessary, the Advisory Panel.' [emphasis added] The Advisory Panel consists of six members, two appointed by the ICTY President from among counsel who have appeared before the Tribunal and four appointed by designated lawyers' associations. Each must have a minimum 10 years legal experience.

In the Ojdanic case, the Appeals Panel majority, Judge Hunt in dissent and Judge Mohammed Shahabuddeen in a separate concurring opinion, revealed varying interpretations of the statute, all of which differed from the Registrar?s. That alone should be reason enough for the Plenary of judges to consider at least clarifying it.

The Appeals Chamber ruled that a longer than anticipated pre-trial period is not in itself sufficient to justify an increase. The Chamber held that resource allocation should be based on complexity of the case and 'the amount of work required to ensure an effective pre-trial preparation.' That is reasonable enough. However, the Majority apparently assumed the Registrar, in establishing the 3-level scheme, took this into account. Once the Registrar assigns a case a level, the Appeals Chamber says it is required to do nothing more. In other words, the Registrar does not need to consider the requirements of an individual case beyond determining in which category to place it. The Appeals Chamber agreed with the Trial Chamber that if exceptional circumstances or events beyond the influence of the defence are shown, the Registrar may increase the allotment. However, the Chamber did not explain what is meant by 'exceptional circumstances' or 'events beyond the influence of the defence.' As Judge Hunt protested in his dissent, this limitation is not found in the Directive and is inconsistent with it.

The Ojdanic case was initially designated a level 1 case in spring 2002, following the general practice of the Registrar to assign all new cases level 1 status. Clearly, the Registrar makes no assessment at this stage. Only in January 2003 was the Ojdanic case up-graded to what it should have been all along -- a level 3 leadership case. The Registrar maintained that it fulfilled its duty to consider the necessity of increasing funds when it upgraded the case to level 3. The Appeals Chamber didn't entirely agree, following the Trial Chamber's view that adjustments can still be made if Defence Counsel show exceptional circumstances or events beyond Defence control. There was no such showing in the Ojdanic case, the Appeals Chamber agreed. How Defence Counsel were to know of this requirement is anyone's guess, since it is not contained in the Directive.

Expressing a different view, Judge Shahabuddeen concluded that once it is determined that a stage of the proceedings is 'substantially longer or shorter than estimated,' it is mandatory for the Registrar to adapt (increase or decrease) the allotment. To reach this conclusion, the Judge read the discretionary 'may' of the Directive as a mandatory 'shall,' providing another reason for statutory clarification. The Judge's interpretation would not have the adaptation rest on time, however, but on the amount of work occasioned by the changed period of time. Judge Hunt believes time is irrelevant; it is the work required for adequate trial preparation that matters. And the provision must be interpreted as allowing for adaptation when more time than anticipated by the Directive is necessary. In a lengthy dissent, Judge Hunt took issue with the Registrar's interpretation and application of the Directive, concluding, 'The Registrar has . . . seriously misdirected himself in the present case.'

In addition to their substantive disagreement, the judges also disagreed on the procedure to follow in seeking a variation from the established maximum allotment, where that is possible. In the Ojdanic case, the Registrar did not consult the Trial Chamber or the Advisory Panel before rejecting Defence Counsel's request for an increase as the Directive provides. Defence Counsel appealed the Registrar's denial of additional funds to the Trial Chamber, which upheld the Registrar. Defence Counsel then received permission to file an appeal with the Appeals Chamber. At no time was the Advisory Panel (the panel of experts) consulted. Though such consultation is discretionary (under a plain reading of the Directive), the Advisory Panel has precisely the kind of expertise needed to assess what is required for adequate pretrial preparation in a given case, expertise that Judge Hunt found lacking in the Registry.

The Majority held that the Trial Chamber has inherent power to review the Registrar's decision pursuant to its duty to insure a fair trial. Where the Registrar's decision does not affect the fairness of the trial but Defence Counsel object, then the Registrar may consult with the Trial Chamber and, if necessary, the Advisory Panel. The Majority didn't identify circumstances where such a decision would not impact the fairness of the trial. One is left to assume that any disagreement with the Registrar's decision at this stage is subject to Appeals Chamber review, though that is not necessarily a comforting thought, given this Panel's decision in the Ojdanic case.

Judge Hunt expressed a different view, i.e. that the Registrar erred by not consulting the Trial Chamber and, 'if necessary' the Advisory Panel, once Ojdanic's counsel had expressed disagreement with the Registrar's decision. Judge Shahabuddeen, on the third hand, felt that the stage for consulting with the Trial Chamber was not triggered. According to his interpretation, Defence Counsel have no right to review unless the Registrar first decides that an increase from the designated allotment is justified and counsel disagree with the amount. The confused and various interpretations cry out for clarity by the Tribunal sitting as a legislative body.

According to Judge Hunt, the Registry has established an allotment that it considers the maximum allowable in any Level 3 case. The Registry advised the Court that it doesn't want to vary the allotment in the Ojdanic case because it would set a precedent for other Defence teams to systematically request adaptation in the future. This application of the Directive, Judge Hunt objected, effectively precludes any level 3 case from obtaining additional funds. Under this system, the Registrar makes no estimation of the amount of work actually required in preparation of a particular case. '[I]f the funds provided turn out to be inadequate . . ., it is the fault of counsel' for not properly prioritising the work, according to the Majority opinion. The problem arises when, despite prioritisation, work necessary for a minimally adequate defence still exceeds the allotment.

Judge Hunt took issue with the Registrar's representation to the United Nations that the Tribunal's legal aid system insures that an indigent accused receives quality representation. An accused cannot receive quality representation in a system where his counsel are not granted sufficient funds to present an adequate case. 'Nor is such representation ensured by a system of legal aid which says that, no matter how much work is reasonably necessary (or 'adequate') in a Level 3 case, counsel who accept an assignment to such a case must personally bear the costs beyond the maximum allotment allowed, because it is their fault for not giving the work the degree of 'prioritisation' required.'

Judge Hunt's dissent would require the Registrar to establish the amount of an allotment for the pretrial stage in each case by estimating the amount of work that will be required. Then, if the Defence can show that the maximum allotment is insufficient for adequate preparation, the Registrar may adapt it. To do so, the Registrar would consult the Trial Chamber, and, if it or the Defence disagrees with his assessment, he would be required to consult the Advisory Panel. Only then could an appeal be taken if disagreement remains. A case by case estimate would more nearly reflect reality than general assumptions. Therefore, it would be more likely to result in fewer disagreements between Registrar and Defence Counsel. This would only be true if Registry officers reviewing the cases were well-experienced in litigation requirements (see discussion below).

The Registrar admits he does not make estimations of the amount of work anticipated in each case, and hasn't done so in the Ojdanic case. Nor did he consult the Trial Chamber or Advisory Panel when a disagreement arose between him and Defence Counsel. Judge Hunt pointed out that, in making any such estimation, the Registrar should begin by considering that the Ojdanic case is based upon the Kosovo indictment against Slododan Milosevic, from which his trial has been separated. 'It must be apparent to the Registrar when he undertakes the estimation . . . that the amount of work which is required [here] . . . is very [much] more substantial than many other Level 3 cases, and that refuge in 'presumptive limits or maximum allotment set by the Registry' is not available in this case.'

In most if not all cases before the Tribunal, the discovery process continues even after trial begins, as the Prosecution secures new witnesses and obtains additional documents, often quite extensive. (Rule 68 requires the Prosecution to disclose to the Defence all potentially exculpatory material.) While the Defence can foresee this will happen, it cannot foresee the extent of it in a particular case. Nevertheless, Judge Hunt added, the Registrar does not have to accept the Defence's estimate of what is adequate for pretrial preparation. In the Ojdanic case, the Judge suggested the Defence could have made some different choices. As the ADC-ICTY pointed out, however, the Defence case must respond to the case prepared by the Prosecution. The ADC-ICTY concluded, '[T]he system penalizes the Defence, but not the Prosecution, for any failure to confine the scope of the Prosecution case to that estimated by the Registry.'

Near the end of his opinion, Judge Hunt criticized the way Registry carries out its duty to provide indigent accused with an adequate defence. The personnel who decide what is adequate or excessive pretrial preparation are not experienced trial attorneys, he said. 'It is not appropriate to condition the exercise of any such discretion by a general restriction whose obvious purpose is to make the administration of the legal aid system easier for the junior legal officers with no apparent experience in trials or as counsel who have for some time now been charged by the Registrar with the administration of that system. That is no excuse at all for imposing impossible barriers [exceptional circumstances or events beyond Defence Counsel's influence] to the flexibility promised. The limitations are invalid. What is needed is the deployment of legal officers to deal with the legal aid system who do have experience which enables them to advise the Registrar how he should determine applications for additional funds, and who do not need to be protected by impossible barriers such as the Registar has now imposed.'

Defence Counsel in the Ojdanic case are well qualified trial attorneys with experience before the Tribunal. No question was raised about their abilities or professionalism. Activities for which they sought reimbursement were all considered reasonable (though Judge Hunt felt some could have been de-prioritised). The Appeals Chamber's decision leaves them no alternative but to provide free legal services to their client through the remainder of the pretrial stage, an obligation which could bankrupt them as they are both sole practitioners. If they cease work or seek to withdraw, they jeopardize their client's defence -- and potentially violate their professional code, which could lead to disciplinary action by their professional associations or a charge of contempt by the court. It is fundamentally unfair to place them in such a situation.

Of greater concern is the potential harm to indigent defendants who are brought before the Tribunal. Any system of criminal justice rests on fairness to all who come before it. Those accused before the ICTY have been charged with the most serious crimes conceived by humanity. They could spend up to the rest of their lives in prison. The system they face presumes they are innocent until proven guilty beyond a reasonable doubt. It assures them the means to answer the evidence presented against them, which includes representation by a qualified professional if they desire one and lack the means to pay. It does not guarantee the best lawyer in the world, nor unlimited funds for defending themselves. But it requires an adequate defense, which means representation by legal professionals who are knowledgeable in ICTY jurisprudence, criminal law in general and criminal trial practice in particular, as well as the conflicts in the former Yugoslavia. Defence counsel must have the ability to manage a complex case that involves multiple charges of war crimes, crimes against humanity and sometimes genocide and the ability to devote substantial periods of time, often many years, to a case. The vital work of the Tribunal requires well-qualified, highly professional and properly resourced Defence counsel, as well as prosecutors, judges, support personnel and Registry staff. While attention must be paid to efficiency and cost saving, financial concerns should not overshadow justice.

Where an accused receives a less than adequate defense, any judgment against him is questionable. The Court cannot be certain that all necessary facts have been presented to it. It cannot have confidence in its judgment. Nor can victims or the public. Convicting an innocent person cal also mean a guilty one goes free. Serious questions about inadequate representation harm the credibility of the Tribunal. As Ojdanic's Defence Counsel pointed out to the Appeals Chamber, 'The expenditure of public funds for an adequate defence has never been popular, but it has always been necessary for the legitimacy of a system of criminal justice and its resulting judgements.'

The Tribunal (including the Registrar) would be well advised to listen to the concerns of the ADC-ICTY and, together with that association, undertake a thorough review of the allotment system the Registrar established three years ago. It is quite proper that the system was changed because of perceived abuses. Sometimes, however, changes create new problems. Complaints by Defence counsel in two cases, backed by the ADC-ICTY and other international and national legal associations, put the Tribunal on notice that it is time to review that system.