Court name
Special Court for Sierra Leone
Case number
SCSL 16 of 2004
Case name

Prosecutor v Alex Tamba Brima & Ors - Decision on Brima-kamara Defence Appeal Motion Against Trial Chamber II Majority Decision on Extremely Urgent Confidential Joint Motion for the Re-appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for a
Law report citations
Media neutral citation
[2005] SCSL 9


SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA
ROAD • FREETOWN • SIERRA LEONE

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Extension: 178 7000 or +39 0831 257000 or +232 22 295995

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295996


THE APPEALS CHAMBER


Before:
Justice Raja Fernando, Presiding
Justice Emmanuel Ayoola,
Justice
George Gelaga King
Justice Geoffrey Robertson, QC
Justice Renate
Winter


Interim Registrar:
Mr. Lovemore Munlo, SC
Date:
8th December 2005
PROSECUTOR
Against
Alex Tamba Brima
Brima Bazzy Kamara
Santigie Borbor
Kanu

(Case No.SCSL-2004-16-AR73)


DECISION ON BRIMA-KAMARA DEFENCE APPEAL
MOTION

AGAINST TRIAL CHAMBER II MAJORITY DECISION
ON
EXTREMELY URGENT CONFIDENTIAL JOINT MOTION

FOR THE RE-APPOINTMENT OF
KEVIN METZGER AND WILBERT HARRIS

AS LEAD COUNSEL FOR ALEX TAMBA BRIMA
AND BRIMA BAZZY KAMARA


First Respondent:
The Registrar
Court Appointed Counsel for Alex Tamba
Brima:

Kojo Graham
Glenna Thompson
Second Respondent:
The Principal Defender
Court Appointed Counsel for Brima Bazzy
Kamara

Andrew K. Daniels
Mohammed Pa-Momo Fofanah


THE APPEALS CHAMBER (“Appeals Chamber”) of the Special
Court for Sierra Leone (“Special Court”) composed of Justice Raja
Fernando,
Presiding Judge, Justice Emmanuel Ayoola, Justice George Gelaga-King,
Justice Geoffrey Robertson and Justice Renate Winter;

BEING SEISED OF “Brima-Kamara Defence Notice of
Appeal” and of “Brima-Kamara Defence Appeal Motion Pursuant to
Article II of the
Practice direction for Certain Appeals Before the Special
Court” filed on 2 September 2005 on behalf of Alex Tamba Brima and
Brima
Bazzy Kamara (the “Appeal”) pursuant to Rule 73(B) of the Rules of
Procedure and Evidence of the Special Court
(“Rules”);

CONSIDERING the “Defence Office Response to Brima-Kamara Defence
Appeal Motion Pursuant to Article II of the Practice Direction for Certain
Appeals Before the Special Court” filed by the Defence Office on 9
September 2005 (the “Defence Office Response”)
and its Corrigendum
of 13 September 2005;

CONSIDERING the “1st Respondent’s
Response to the Interlocutory Appeal of Alex Tamba Brima and Brima Bazzy
Kamara” filed by the Registrar
on 12 September 2005 (the
“Registrar’s Response”);

CONSIDERING the “First Respondent’s Additional Motion to
the Interlocutory Appeal of Alex Tamba Brima and Brima Bazzy Kamara and the
Response by the Principal Defender (the Second Respondent)” filed by the
Registrar on 13 September 2005 (the “Registrar’s
Additional
Motion”);

CONSIDERING the “Second Respondent’s Response to the First
Respondent’s Additional Motion to the Interlocutory Appeal of Alex
Tamba
Brima and Brima Bazzy Kamara and the Response by the Principal Defender (Second
Respondent)” filed by the Principal Defender
on 16 September 2005 (the
“Principal Defender’s Response to the Registrar’s Additional
Motion”);

CONSIDERING “Brima-Kamara Joint Defence Reply to
1st Respondent’s Response to the Interlocutory
Appeal of Alex Tamba Brima and Brima Bazzy Kamara” filed on the behalf of
Alex Tamba Brima and Brima Bazzy Kamara on 16 September 2005 (the
“Reply”);

NOTING the “Decision on the Extremely Urgent Confidential Joint
Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris
as Lead
Counsel for Alex Tamba Brima and Brima Bazzy Kamara and Decision on Cross Motion
by Deputy Principal Defender to Trial Chamber
II for Clarification of its Oral
Order of 12 May 2005” rendered by Trial Chamber II on 9 June 2005 (the
“Impugned Decision”);

NOTING the “Decision on Brima-Kamara Application for Leave to
Appeal from Decision on the Re-Appointment of Kevin Metzger and Wilbert
Harris
as Lead Counsel” rendered by Trial Chamber II on 5 August 2005 (the
“Decision Granting Leave to Appeal the Impugned
Decision”);

NOW DETERMINES THIS APPEAL ON THE BASIS OF THE WRITTEN SUBMISSIONS OF THE
PARTIES



I. PROCEDURAL HISTORY OF THIS APPEAL

1. This is an appeal by Alex Tamba Brima and Brima
Bazzy Kamara (“the Appellants”) against the Impugned Decision in
which
their motion for the re-assignment of Kevin Metzger and Wilbert Harris as
their Lead Counsel was dismissed.


2. The procedural history in this matter is set out in the Impugned Decision
and does not need to be repeated here in detail. The
following summary is
sufficient for present purposes. By an oral order of 12 May
2005[1] and a written
decision filed on 20 May 2005, the Trial Chamber permitted former Lead Counsel
for the Appellants to withdraw from
the case to which they had been assigned on
the grounds of the threats to former Lead Counsel and their
families.[2] By a Motion
filed on 24 May 2005, the Appellants sought an Order: (i) that the Registrar
re-assign former Lead Counsel; (ii) to the
Acting Principal Defender to
immediately enter into a legal services contract with former Lead Counsel; (iii)
that Justices who re-confirmed
the order not to re-appoint be recused from
hearing he motion; (iv) declaring as null and void the decision of the Registrar
not
to re-assign Counsel; and (v) any other relief deemed fit and
appropriate.[3] Trial
Chamber II dismissed the Motion to Re-appoint finding that it was frivolous and
vexatious. On 5 August, the Trial Chamber allowed
an appeal by the Appellants
and they filed notice of appeal on 2 September 2005.



II. NOTING THE SUBMISSIONS OF THE PARTIES

  1. The
    Impugned Decision dismissed the Motion filed by the Defence for Brima and Kamara
    (the “Appellants”) on 24 May 2005
    for the re-appointment of their
    respective Lead Counsel as “frivolous and vexatious” and refused the
    following relief
    prayed for, namely (a) an Order to the Registrar to ensure that
    Counsel Metzger and Harris are re-assigned as Lead Counsel for Brima
    and Kamara;
    (b) an Order to the Acting Principal Defender to immediately enter into a legal
    services contract with the two Counsel;
    (c) that the Judges who reconsidered not
    to re-appoint the two Counsel as indicated in a letter from the
    Registrar’s Legal
    Adviser recuse themselves from hearing the Motion; (d)
    an Order to declare as null and void the decision of the Registrar not to
    re-assign Counsel which was made without legal or just cause; (e) a public and
    open court hearing of the Motion and Cross Motion
    filed by the Principal
    Defender.

A. The Appeal Motion:

  1. After
    submitting that the current appeal fully fulfils the requirements of the
    Practice Direction for Certain Appeals, the Defence
    raises the following grounds
    of appeal:
    • (i) The Defence
      refers to a decision of the Registrar refusing the re-appointment of former Lead
      Counsel and submits that it amounted
      to a breach of the right of the Appellants
      to choose their own Counsel. The Defence submits that the Registrar might only
      refuse
      the Appellants’ wishes regarding the appointment of their Counsel
      on reasonable and valid grounds, which were lacking in the
      current case. The
      Defence further submits that the Trial Chamber had no power or authority to
      interfere in the statutory right of
      an accused to choose his or her assigned
      Counsel by giving directives that are contrary to that choice to the
      Registrar.
    • (ii) The
      Defence challenges Trial Chamber II decision not to exercise its inherent
      jurisdiction to judicially review the administrative
      actions of the Registrar
      and the Acting Principal Defender. According to the Defence, the Trial chamber
      erred in law by stating
      that it had no power to order the Acting Principal
      Defender to enter into a Legal Services Contract with the Counsel.
    • (iii) The
      Defence further challenges the denial of an order for a public hearing on its
      application. The Defence submits that Rule
      73(A) gives the Trial Chamber the
      power and discretion to hear motions in open court and that the Trial Chamber
      misinterpreted this
      Rule in a way which erodes the rights of the Appellants
      under Article 17 of the Statute.
    • (iv) The
      Defence submits that the Trial Chamber erroneously considered its Extremely
      Urgent Confidential Joint Motion for the Re-Appointment
      of Kevin Metzger and
      Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara of 24
      May 2005 (the “Motion
      to Re-Appoint”) as a Motion to Withdraw
      Counsel under Rule 45(E), and therefore dismissed it as “frivolous and
      vexatious”,
      when it was filed pursuant to Rule 54, Article 17(4)(d) and
      the inherent power of the Court.
    • (v) The Defence
      further submits that that the Trial Chamber erred in law and/or in fact
      considering the Motion to Re-Appoint as a
      continuation or extension of the
      earlier application to Withdraw Counsel under Rule 45(E) and that this confusion
      prevented it from
      considering the merits of the Motion to Re-Appoint.
    • (vi) The
      Defence submits that the Trial chamber erred in law and/or in fact by
      considering that former Lead Counsel were not eligible
      to be re-appointed since
      they were no longer on the list of qualified Counsel required to be kept under
      Rule 45(C), when their removal
      was effected by the Registrar when the Motion to
      Re-Appoint was pending judicial consideration by the Trial Chamber.
    • (vii) Finally,
      the Defence submits that the Trial Chamber erred in law and/or in fact by ruling
      that there were no grounds for submitting
      that any Judge recuse himself or
      herself, when, according to Justice Sebutinde’s observations in her
      dissenting opinion, the
      two other Justices expressed their preference or
      otherwise for Counsel, thereby giving an impression of partiality, bias and
      unsolicited
      and unwarranted interference with the statutory rights of the
      Appellants.
  2. For
    the foregoing reasons, the Defence prays the Appeals Chamber to (a) make a
    declaration that refusal of the Registrar and the Trial
    chamber to re-appoint
    Counsel Metzger and Harris as Lead Counsel amounted to a violation of the
    statutory rights of the Accused under
    Article 17(4)(d) of the statute; (b) make
    a declaration that the Registrar’s decision against the re-assignment of
    Counsel
    Metzger and Harris and the removal of their names from the list of
    eligible Counsel was ultra vires and null and void; (c) order the
    reinstatement of Counsel Metzger and Harris on the list of qualified counsel;
    (d) declare that the
    Trial Chamber has both the inherent jurisdiction and the
    power to review the Registrar’s decision not to re-assign Counsel
    Metzger
    and Harris, as well as the Registrar’s decision to remove their names from
    the list of qualified Counsel; (e) declare
    that Justices Doherty and Lussick,
    having advised the Registrar against the re-appointment of the two Counsel,
    should have recused
    themselves from hearing the Motion on their re-appointment;
    and (f) declare that the Trial Chamber erred in law by not considering
    the
    Motion before it on its merits as a separate and distinct application.

B. Defence Office’s Response:

  1. The
    Defence Office supports the ground tendered by the Defence in its Appeal by
    adding the following submissions:
    • (i) On the
      first ground of appeal, the Defence Office submits that, although the right of
      the Appellants to Counsel of his own choosing
      is not absolute, if the withdrawn
      Counsel fulfil the criteria for eligibility to be placed on the list of
      qualified Counsel, have
      a good rapport with their client, and are knowledgeable
      about their case, they should, in the interest of justice, have been re-assigned
      considering the stage at which the case has reached.

(ii) On the Second Ground of Appeal, the Defence Office submits that the Trial
Chamber could, as did Trial chamber I in a former
Decision in the Brima
case,[4] have
exercised its inherent jurisdiction to entertain a motion on the ground of
denial of request for assignment of Counsel and to
prevent a violation of the
rights of the accused.



(iii) On the Third Ground of Appeal, the Defence Office admits that the motion
is not a hearing per se, but submits that it was brought during the
process of trial and fits within the precincts of Article 17(2) of the Statute.
The Defence
Office further submits that the application for a public hearing was
made upon the discovery that the Registry had de-listed both
Lead Counsel from
the roll of eligible Counsel before the Special Court, and that the Trial
Chamber erroneously considered that the
request for public hearing should not
have been made within the Reply, when it did not constitute a claiming for
additional relief.
The Defence Office submits that the Article 17(2)(d)
guarantee of the right to a public hearing should prevail Rule 73(A) provision
that the Trial Chamber shall rule interlocutory Motions based solely on the
written submissions of the parties unless it is otherwise
decided.



(iv) On the Fourth and Fifth Grounds of Appeal, the Defence Office submits that
the Trial Chamber erroneously considered the Motion
to Re-Appoint as a Request
for review of its earlier decision on Motion for Withdrawal filed by their
former Counsel and, consequently,
had no regard to the request of the Accused to
have their withdrawn Counsel re-assigned, which it dismissed as “vexatious
and
frivolous” and without bona fide motive. The Defence Office
emphasises that the Accused genuinely wanted their Lead Counsel to be
re-appointed and that the Motion
was filed under Rule 54 and 73(a) of the Rules
and the inherent jurisdiction of the Court.



(v) On the Sixth Ground of Appeal, the Defence Office challenges the Trial
Chamber’s finding that the Registrar has the power
to remove Counsel from
the list of eligible Counsel on the basis of “security concerns” and
stresses that the role of
assignment, withdrawal and replacement of Counsel is
essentially a role and function of the Principal Defender. The Defence Office
further submits that the “security concerns” on which the removal
was based were not investigated by the Registrar before
taking its decision and
are not even prescribed by the Rules or the Directive on the Assignment of
Counsel. The Defence Office notes
that the Acting Registrar requested the Deputy
Principal Defender to strike Counsel off the list and that his request was
declined
on the grounds that the matter was sub-judice. The Defence
Office thus emphasises that the Lead Counsel were struck off the list by the
Acting Registrar without the consent and
despite the legal advice from the
Defence Office.



(vi) On the Seventh Ground of Appeal, the Defence Office supports the Appeal on
the ground of extra judicial interference in the
re-appointment of Counsel by
Justices Doherty and Lussick.

  1. In
    addition to the above Grounds of Appeal, the Defence Office adds the following
    “Additional Grounds and Arguments”:
    • (i) Firstly,
      the Defence Office submits that the Trial Chamber erred in endorsing the general
      submissions of the Registrar concerning
      his administrative role and the lack of
      statutory authority of the Principal Defender. The Defence Office submits that
      it was mandated
      under Rule 45 and vested with legal duties to assign Counsel, to
      compile and maintain the list of qualified Counsel under Rule 45(C),
      to place
      Counsel on the List if they meet the criteria stipulated in Rule 45(C) and to
      deal with matters pertaining to their removal
      or withdrawal. It further submits
      that, while the Registrar is expected to exercise administrative and financial
      oversight over it
      and to give its logistical and other administrative support,
      he should not assume the function of the Defence Office or veto the
      decisions of
      its officials made in pursuance of its mandate. The Defence Office emphasises
      that it should exercise its functions
      independently of the Registrar and that,
      although a consultative process should be encouraged in practice, any attempt to
      interfere
      with these functions would be tantamount to an infringement upon the
      rights of the Accused. The Defence Office submits that, in the
      absence of the
      Principal Defender, it relied on the Deputy Principal Defender to carry on her
      task in an acting capacity, without
      this provisional vacuum becoming an occasion
      for the Registrar to arbitrarily take over the duties of the Defence Office.

    • (ii) The
      Defence Office challenges the Trial Chamber’s finding that the Deputy
      Principal Defender went out of her way to undermine
      an order of the Trial
      Chamber or was unwilling to do her job or to follow the directions of the
      Registrar.
    • (iii) The
      Defence Office submits that the consultation between the Registrar and the Trial
      Chamber, which was conceived to be under
      Rule 33, was not notified to the
      Appellants nor their Counsel, when the matter was very crucial to their rights.
      The Defence Office
      relies on Justice Sebutinde’s Dissenting Opinion to
      challenge the Registrar’s submission that the representations he
      made to
      the Chamber were to clarify and inform himself of the view of the Trial Chamber
      on the order it made on the withdrawal of
      Counsel, when the issue at stake was
      not the withdrawal of Counsel but their re-assignment and, had it been the
      withdrawal, there
      was then no need to approach the Trial Chamber.
    • (iv) Finally,
      the Defence Office submits that the Trial Chamber erroneously leaned to the
      Registrar’s submissions to the detriment
      of fairness, without elaborating
      on the applicability of the “reasonable and valid grounds” test to
      satisfy for denying
      the Appellants’ request to have their Counsel
      reassigned, and without considering that the role of the Registrar to assign
      Counsel before the ICTR and ICTY is parallel to that of the Principal Defender
      before the Special Court.
  2. In conclusion, the Defence Office supports the Relief sought by the Defence in
    the Appeal Motion and requests the Appeals Chamber
    to give direction on the role
    of the Defence Office in view of its Mandate pursuant to Rule 45 and its
    interaction with the Registrar
    with regard to the assignment and re-assignment
    of Lead Counsel for the Appellants.

C. Registrar’s Response:

  1. The
    Registrar opposes all the Grounds of Appeal, for the following reasons:
    • (i) On the
      First Ground of Appeal, the Registrar supports the finding made by the Impugned
      Decision that the Appellants have no absolute
      right to Counsel of their choosing
      and refers to the finding of the Oral Order Permitting Withdrawal of 12 May 2005
      on the application
      for withdrawal of Counsel that “Lead Counsel with their
      present difficulties would not be capable of acting in the best interests
      of
      their clients”. He further refers to the fact that both Lead Counsel
      applied to withdraw from the trial on the basis that
      they were not receiving
      full instructions from their clients and that they had received unspecified
      threats; this application was
      granted by the Trial Chamber on the basis that
      Counsel were not able to represent their clients to the best of their ability.
      The
      Registrar further submits that the Principal Defender acted reasonably
      within his powers under Rule 45(C) in refusing the request
      for the
      re-appointment of Counsel by the Appellants, particularly when there were no new
      circumstances.
    • (ii) On the
      Second Ground of Appeal, the Registrar submits that the Trial Chamber does not
      have the power to force parties to enter
      into a contract, but can only order
      parties to enter negotiations to enter into a contract. The Registrar submits
      that although the
      Trial Chamber has power to review administrative decisions of
      the Registrar and the Principal Defender when it affects the right
      of the
      Accused to a fair trial under Article 17(4)(d) of the Statute, all the Trial
      Chamber can do is order the Principal defender
      to enter negotiations for a
      contract, but not simply order him to enter a contract.
    • (iii) As
      regards the Third Ground of Appeal, the Registrar challenges the Defence
      assumption that the right to a hearing in open Court
      is absolute and submits
      that reasons must be presented to the Trial Chamber as to why there should be an
      open Court hearing. The
      Registrar further recalls that, as mentioned in the
      Impugned Decision, the application for a hearing in open court was made in the
      Defence Reply and, as such, gave no opportunity to the Respondents to present
      submissions.
    • (iv) On the
      Fourth Ground of Appeal, the Registrar supports the finding by the Impugned
      Decision that the application was confusing
      because of the unclear pleading of
      the Appellants who cannot now complain that the Trial Chamber did not consider
      the basis of their
      argument under Rule 54.
    • (v) On the
      Fifth Ground of Appeal, the Registrar supports the finding by the Impugned
      Decision that the Motion was a backdoor attempt
      to review the original order of
      the Trial Chamber permitting Counsel to withdraw and challenges the Defence
      assumption that the Motion
      to withdraw and the Motion to Re-Appoint were
      separate.
    • (vi) On the
      Sixth Ground of Appeal, the Registrar submits that, after the Trial Chamber
      ordered the withdrawal of Counsel, the Acting
      Registrar decided to remove them
      from the list of qualified Counsel on the basis of unresolved security concerns
      that Counsel had
      raised in their application to withdraw, without even trying to
      seek the assistance of the Registrar to deal with these security
      issues and when
      they expressly refused to disclose the sources of the alleged threats. The
      Registrar submits that he is entitled
      to act immediately upon his authority and
      discretion to seek the removal of Counsel from the List of Qualified Counsel if
      their appointment
      raises concerns for the security of the court and the
      personnel within it.
    • (vii) On the
      Seventh Ground of Appeal, the Registrar submits that there were no grounds upon
      which to seek the recusal of Judges of
      the Trial Chamber. The Registrar submits
      that, pursuant to Rule 33(B), he is entitled to make oral or written
      representations to
      Chambers on issues arising in the context of a specific case
      which affects or may affect the implementing of judicial decisions and
      that this
      regulation implies that Chambers can make comments on the matters raised by the
      Registrar. The Registrar states that his
      representation to Chambers in the case
      was to clarify and inform himself of the views of the Trial Chamber on the 12
      May 2005 Order
      and was pursuant to Rule 33(B). The Registrar further submits
      that it was the inherent power of the Trial Chamber, acting in order
      to ensure
      the Appellants right to a fair trial, to express its view on the attempt to have
      Counsel re-assigned in contravention of
      the Order.
  2. Consequently, the Registrar prays for the Appeals Chamber to dismiss the Appeal
    and refuse the relief sought.

D. Registrar’s Additional Motion:

  1. As
    regards the “Additional Grounds and Arguments Submitted by the Defence
    Office” in its Response, the Registrar submits
    that the Defence Office is
    not entitled to plead additional grounds outside the grounds of appeal filed by
    the Appellants, but could
    have sought leave to appeal and then filed its own
    grounds of appeal. The Registrar submits that this use of pleadings prevented
    the Registrar from responding to the additional Grounds raised by the Defence
    Office. The Registrar submits that the Additional Grounds
    raised by the Defence
    Office should not be considered by the Appeals Chamber and, should the Appeals
    Chamber consider these additional
    Grounds, the Registrar requests that he be
    given the opportunity to file a Response.

E. Defence Office’s Response to the Registrar’s Additional
Motion:

  1. The
    Defence Office submits that the Registrar’s Additional Motion is not
    admissible for lack of legal basis because there was
    no original motion to which
    this Motion may be “additional”, and because the Registrar failed to
    provide the statutory
    basis or the Rules under which he was proceeding. The
    Defence Office challenges the Registrar’s characterisation of his
    statements
    as “Grounds of Appeal” and submits that its
    “additional grounds and arguments” were only intended to further
    articulate the Appellants Grounds 1, 5 and 6. As such, they should be construed
    in their very original literal meaning as valid points
    to raise in any appeal
    proceeding and any suggestive interpretation other than what the Defence Office
    intended them to mean is vigorously
    resisted. The Defence Office finally submits
    that the Registrar has been accorded a fair opportunity to present his arguments
    in
    support of all the issues and matters pertaining to the Appeal and should not
    seek to enlarge that time frame and waste the resources
    of the Court.

F. Defence Reply:

  1. In
    Reply, the Defence makes the following submissions:
    • (i) On the
      First Ground of Appeal, the Defence submits that it is disingenuous for the
      Registrar to deny the Appellants their choice
      of Counsel on the grounds that
      such a denial will ensure them an “effective defence” , more so when
      the Appellants have
      unequivocally expressed their own choice or preference for
      Counsel.
    • (ii) On the
      Second Ground of Appeal, the Defence submits that legal services contracts are
      more or less standard and leave little
      room for negotiation, apart for the
      composition of the team and the allocation of billable work hours, and that the
      Trial Chamber
      has an inherent jurisdiction to give orders which will have the
      effect of ensuring that a legal services contract is entered into
      between the
      Principal Defender and the Lead Counsel.
    • (iii) On the
      Third Ground of Appeal, the Defence submits that the Trial Chamber erroneously
      dismissed the application for a public
      hearing on the ground that it was an
      application for additional relief, when its principal purpose was to ensure that
      the Appellants
      receive a fair and public trial.
    • (iv) On the
      Fourth Ground of Appeal, the Defence submits that the Motion was properly made,
      inter alia, pursuant to Rule 54 and the inherent jurisdiction of the
      Trial Chamber and that non-submission of arguments under Rule 54 was not
      fatal
      to the Motion to Re-Appoint because of its inherent jurisdiction leg.
    • (v) On the
      Fifth Ground of Appeal, the Defence emphasises that the Motion to withdraw was
      brought by the Counsel, when the Motion
      to Re-Appoint was brought by the
      Appellants.
    • (vi) On the
      Sixth Ground of Appeal, the Defence submits that it is not within the power of
      the Registrar to de-list or remove the
      names of Counsel from the list of
      assigned Counsel without just and reasonable cause, especially when the matter
      is pending before
      the Trial Chamber and that the de-listing of Counsel was an
      improper and pre-emptive strike designed to present the Trial Chamber
      with a
      fait accompli in respect of the re-appointment of Counsel.
    • (vii) On the
      Seventh Ground of Appeal, the Defence submits that by expressing their opinion
      against the re-appointment of the Lead
      Counsel, Justices Doherty and Lussick
      were not in a position to impartially consider the Motion to Re-Appoint and
      therefore aught
      to have properly recuse themselves. The Defence also challenges
      the Registrar’s submission that Justice Sebutinde’s Dissenting
      Opinion can not be relied upon because of the factual disputes among the
      Chamber.
  2. The
    Defence finally questions the legal validity of Justice Doherty’s Comment
    appended to a totally unrelated matter and takes
    issue with this procedure
    engendering a serious violation of the Accused rights to fair trial. The Defence
    submits that this “personal
    comment” was intended to unduly
    influence the Appeals Chamber and makes Justice Doherty a party to the Appeal,
    which she is
    not. The Defence therefore appeals the Appeals Chamber not to
    consider Justice Doherty’s Comment.


III. DECIDES AS FOLLOWS

  1. Before
    going to the merits, the Appeals Chamber deems it necessary to address several
    preliminary issues of procedure that are raised
    in this Appeal.

A. Preliminary Issues

  1. The
    preliminary issues raised in this Appeal relate to:
    1. Trial
      Chamber II’s Leave to Appeal the Impugned Decision;
    2. Time
      Limits for Filing Submissions in Appeal;
    1. Admissibility
      of New Grounds and/or New Requests Submitted in Response or Reply Before the
      Appeals Chamber;
    1. Admissibility
      of the Registrar’s Additional Motion.

1. First Preliminary Issue: Trial Chamber II’s Certification to Appeal
the Impugned Decision

(a) Summary of Issue

  1. In
    Section II of its Appeal Motion, the Defence submits that it perfectly fulfilled
    the requirements of the Practice Direction for
    Certain Appeals. Although the
    Appeals Chamber agrees with the submissions made by the Defence in support of
    this assertion, the
    question of admissibility of Appeals is not that simple and
    may raise problems from different aspects. In particular, this Appeals
    Chamber,
    concurring on this aspect with the Appeals Chamber of the International Criminal
    Tribunal for Rwanda
    (“ICTR”)[5],
    has already admitted and exercised its jurisdiction on the standards for
    certification of
    appeal.[6] These
    standards are set out in Rule 73(B) of the SCSL Rules, which provides, in
    particular that decisions rendered on interlocutory
    motions are “without
    interlocutory appeal”, but that leave to appeal may be granted “in
    exceptional circumstances”
    and “to avoid irreparable
    prejudice to a party” where the appellant applies for “within 3 days
    of the
    decision”.[7]
  2. The
    Appeals Chamber notes that the Appellants application for leave to appeal was
    filed on 14 July 2005[8]
    when the Impugned Decision is dated 9 June 2005. Although the Impugned Decision
    was appended a Dissenting Opinion filed by Justice
    Sebutinde on 11 July
    2005[9], it is the view
    of the Appeals Chamber that the application for leave to appeal was out-of-time
    pursuant to Rule 73(B).

(b) Applicable Standards


  1. Rule 73(B) of the SCSL Rules of Procedure and evidence provides that application
    for leave to appeal interlocutory decision shall
    be filed within 3 days of the
    impugned decision. This Rule does not make any exception as regards the later
    filing of concurring/dissenting
    opinions appended to the impugned decision.

  2. The Appeals Chamber takes this opportunity to emphasise that Article 18 of the
    Statute provides that judgements – or decisions
    – shall be
    accompanied by a reasoned opinion, which in practice embodies the reasoning of
    the decision, to which separate or
    dissenting opinions may be appended. Article
    18 does not provide a time difference between the filing of the Decision and the
    filing
    of any concurring/dissenting opinion and the word “appended”
    clearly means that, in the spirit of the Statute, those
    opinions shall be filed
    at the very same time as the majority decision.
  3. This interpretation is consistent with this Appeals Chamber’s
    jurisprudence that the Statute and Rules of the Special Court
    should be
    interpreted according to the purpose of enabling “trials to proceed
    fairly, expeditiously and
    effectively”.[10]
    An expeditious determination of interlocutory motions would be favoured by a
    time-limit running from the date of the appealed decision
    itself. At the same
    time, to compel the parties to decide whether or not they should request leave
    to appeal without knowing the
    entire considerations having led to the decision
    and the reason why a judge of the bench may dissent from the majority decision,
    would be unfair and would jeopardise the effective right of the parties to
    appeal interlocutory decisions. Although the applicant
    is not supposed to submit
    his/her grounds of appeal in his/her application for leave to appeal,
    concurring/dissenting opinions may
    bear on his/her decision to appeal the
    majority decision. The Appeals Chamber therefore finds that those
    concurring/dissenting opinions
    shall be filed together with the majority
    decision, in order to put the parties in a position to decide whether or not to
    apply for
    leave to appeal.
  4. This
    interpretation is also confirmed by the common practice before other
    International Tribunals, which is to file, at the same time,
    the decision and
    its concurring/dissenting opinions, without any delay. This Appeals
    Chamber has always followed this practice of other International Tribunals on
    the filing of concurring/dissenting opinions.
  5. Both Trial Chambers of the Special Court for Sierra Leone have on occasions
    departed from this common practice and have filed concurring/dissenting
    opinions
    after the related decision is rendered. A review of the Trial Chambers practice
    shows that the time difference between the
    filing of the decisions and the
    concurring/dissenting opinions has sometimes reached several months, thereby
    delaying substantially
    the proceedings and casting uncertainty on the opinion of
    Judges on important legal issues. The Appeals Chamber notes that this practice
    does not occur in every case and that some opinions are filed on the same day as
    the related decisions.
  6. The Appeals Chamber deems it necessary to put an end to the regrettable practice
    that has developed in the Trial Chambers and clearly
    finds that, pursuant to
    article 18 of the Statute, the concurring/dissenting opinions that are not
    properly “appended”
    to the decision they relate to, and filed
    together with it, are not admissible and shall be disregarded.
  7. This being said, the 3-day time limit for filing an application for leave to
    appeal under Rule 73(B) obviously runs from the date
    when the decision the
    applicant wishes to appeal is filed, without any exception on the ground of the
    later filing of a dissenting/concurring
    opinion being admissible.

(c) Application to the Current Case


  1. In the instant case, the application for leave to appeal was filed more than
    three days after the appealed Decision was rendered.
    This application was
    therefore out of time and should have been dismissed accordingly. However,
    taking into account the fact that
    neither of the Respondents have objected to
    the Applicants’ non-compliance with the Rules and the fact that the
    application
    for leave to appeal was filed on credence of a wrong precedent
    established by Trial Chamber
    I[11], and in
    accordance with the practice of the ICTR Appeals
    Chamber[12], the
    Appeals Chamber considers that it is nevertheless properly seized of the
    Appeal.

2. Second Preliminary Issue: Time Limits for Filing Submissions in Appeal


  1. Another preliminary issue raised in this Appeal relates to the time limits for
    filing submissions in appeal.

(a) Summary of Issue


  1. On 5 August 2005 Trial Chamber II granted the Appellants leave to appeal
    pursuant to Rule 73(B) of the Rules of Procedure and Evidence
    of the Special
    Court (“the Rules”). On Friday 2 September
    2005 at 5.13 p.m. the accused, Brima and Kamara, filed a Notice of Appeal. On
    5th September 2005 at 1.40 p.m., Court Management
    emailed the Notice of Appeal to the Registry and other parties including the
    Appeals
    Chamber. On 5th September 2005, the paper copy
    was stamped as a true copy by the Chief of Court Management. On Friday 9
    September 2005 at 4.59 p.m.,
    the Office of the Defence filed a Response to the
    above Notice of Appeal. On Monday 12 September 2005 at 2.12 p.m., the Registrar
    (First Respondent) filed his Response to the above Notice of Appeal. On Tuesday
    13 September 2005 at 3.50 p.m., the Registrar filed
    his Additional Motion to the
    Interlocutory Appeal. On 16 September 2005 at 12.00 noon, the Defence Office
    filed its Response to the
    Registrar’s Additional Motion. On the same day
    at 2.43 p.m., the Defence filed its Reply.
  2. The time frame of those filings raises an issue as regards to the time limits
    for filing submissions in appeal, which manifestly
    need some clarification and
    which the Appeals Chamber deems necessary to address.

(b) Applicable Standards


  1. Rule 108(C) provides that “[i]n appeals pursuant to Rules 46, 65 and
    73(B), the notice and grounds of appeal shall be filed
    within 7 days of the
    receipt of the decision to grant leave.” This Rule is implemented by
    Article 11 of the Practice Direction
    for Certain Appeals before the Special
    Court (the “Practice Direction for Certain
    Appeals”)[13]
    which provides that “[t]he appellant’s submissions based on the
    grounds of appeal shall be filed on the same day as the
    Notice of
    Appeal....”
  2. Article 12 of the Practice Direction on Certain Appeals, which also applies to
    leave conditioned appeals, further provides that “[t]he
    opposite party
    shall file a response within seven days of the filing of the appeal. This
    response shall clearly state whether or
    not the appeal is opposed, the grounds
    therefore, and the submissions in support of those grounds.”
  3. Those time limits shall be computed in accordance with Rule 7 (A) and (B), which
    provide as follows:

(A) Unless otherwise ordered by a Chamber or by a Designated Judge,
or otherwise provided by the Rules, where the time prescribed
by or under the
Rules for the doing of any act shall run from the day after the notice of the
occurrence of the event has been received
in the normal course of transmission
by the Registry, counsel for the Accused or the Prosecutor as the case may
be.


(B) Where a time limit is expressed in days, only ordinary calendar days
shall be counted. Weekdays, Saturdays, Sundays and Public
Holiday shall be
counted as days. However, should the time limit expire on a Saturday, Sunday or
Public Holiday, the time limit shall
automatically be extended to the subsequent
working day.


  1. On computation of time, Article 18 of the Practice Direction for Certain Appeals
    before the Special Court adds:

In accordance with the Rules, the time-limits prescribed under this
Practice Direction shall run from, but shall not include, the
day upon which the
relevant document is filed. Should the last day of time prescribed fall upon a
non-working day of the Special
Court it shall be considered as falling on the
first working day thereafter.


  1. The
    Practice Direction on Filing Documents before the Special Court for Sierra Leone
    (the “Practice Direction on Filing of
    Documents”)[14]
    regulates the format and contents of documents. Its Article 9 – Method of
    Filing Documents - provides:

(B) The official filing hours are from 9:00 to 17:00 hours every
weekday, excluding official holidays. However, documents filed after
16:00 hours
shall be served the next working day. Documents shall not be accepted for filing
after 17:00 hours except as provided
under Article 10 of this Practice
Direction.[15]


(C) The date of filing is the date that the document was received by the
Court Management Section. The Court Management Section shall
stamp the document
legibly with the date of its receipt, subject to the provisions of Articles 4 to
8 of this Practice Direction
[...]


(c) Application to the Current Case


  1. Since leave to appeal was granted by the Trial Chamber on Friday 5 August 2005
    and the Summer Recess froze all time-limits for filing
    submissions from Monday 8
    August 2005 until Sunday 28 August
    2005[16], Rule 108(C)
    7-days time-limit ended on Friday 2 September 2005. According to Article 9(B)
    of the Practice Direction on Filing of
    Documents, the Notice and grounds of
    Appeal were to be filed at the latest on 5.00 p.m. The stamp on the Notice of
    Appeal shows that
    it was received by the Court Management Section of the Special
    Court at 5.13 p.m., in violation of Article 9(B) of the Practice Direction.
  2. As a consequence of this first breach, the Notice of Appeal was circulated to
    the Parties on Monday 5 September 2005 only. The Defence
    Office’s Response
    was timely filed on Friday 9 September 2005 at 4.59 p.m. but the Registrar filed
    his Response on Monday 12
    September only. This filing would be out-of-time, if
    the date of reference for computation of Article 12 of the Practice Direction
    on
    Certain Appeal 7-days time-limit for filing responses was computed from the date
    of filing of the Notice of Appeal, namely Friday
    2 September 2005. But since the
    late filing of the Notice of Appeal consequently led to a late circulation of
    the Notice of Appeal
    to the Parties, the useful date for computation of time to
    file a response was the date of circulation of the Notice of Appeal, namely
    Monday 12 September. In that respect, the Registrar’s Response was filed
    in time.
  3. As regards the Additional Motion filed by the Registrar on 13 September 2005,
    however, and depending on the Appeals Chamber’s
    determination on its
    nature, i.e. should it be considered as an amplification of the
    Registrar’s
    Response,[17] it would
    be clearly out-of-time.
  4. For the foregoing reason, the Appeals Chamber finds that the Court Management
    Section erred by accepting the filing of the Defence
    Notice of Appeal after the
    5.00 p.m. time limit provided by Article 9(B) of the Practice Direction on
    Filing of Documents. The Appeals
    Chamber finds consequently that the Defence
    Notice of Appeal was filed out-of-time pursuant to Rule 108(C) and Article 9(B)
    of the
    Practice Direction on Filing of Documents. However, taking into account
    the fact that neither of the Respondents have objected to
    the Applicants’
    non-compliance with the Rules and Practice Directions on that ground and the
    fact that part of the responsibility
    for the mistake visibly bears on the Court
    Management Section of the Special Court which was not strict enough as regards
    the respect
    of time limits, the Appeals Chamber considers that it is nonetheless
    properly seized of the Appeal.

3. Third Preliminary Issue: Admissibility of New Grounds and/or New Requests
Submitted in Response or Reply Before the Appeals
Chamber

(a) Summary of Issue


  1. In Section IV of its Response to the Appeal Motion, the Defence Office submits
    what is entitled “Additional Grounds and Arguments”.
    These
    “Additional Grounds and Arguments” relate to: (i) the mandate of the
    Defence Office and its relation with the Registry;
    (ii) the finding by the Trial
    Chamber that the Deputy Principal Defender undermined its Order or was unwilling
    to do her job; (iii)
    the consultation between the Registrar and the Trial
    Chamber; (iv) the Trial Chamber’s evaluation of the Registrar’s
    action.
  2. In his Additional Motion, the Registrar submits that the Defence Office is not
    entitled to plead additional grounds outside the grounds
    of Appeal raised by the
    Appellants; that if the Defence Office wanted to raise grounds of appeal, it
    should have sought leave to
    appeal from the Trial Chamber; and that this way of
    proceeding prevents the Registrar from responding to the Additional Grounds
    raised
    by the Defence Office. The Registrar therefore prays the Appeals Chamber
    not to consider these Additional Grounds and, in the alternative,
    requests to be
    given the opportunity to file a Response.
  3. In its Response to the Registrar’s Additional Motion, the Defence Office
    challenges the characterisation of its statements
    as “Grounds of
    Appeal” and submits that the issues addressed in the “Additional
    Grounds and Arguments” contained
    in its Response are not new but have
    already been deliberated upon by the Trial Chamber, or submitted upon by the
    Registrar, and
    were only intended to further articulate Grounds 1, 5 and 6
    developed by the Appellants.
  4. The same issue of admissibility is also raised by the submissions made in the
    Defence Reply with regard to the validity of Justice
    Doherty’s Comment
    appended to the Decision granting leave to appeal: the Defence submits that this
    comment engenders a serious
    violation of the Accused rights to fair trial and
    was intended to unduly influence the Appeals Chamber. The Defence therefore
    requests
    the Appeals Chamber not to consider this “personal
    comment”.

(b) Applicable Standards


  1. On the issue of new grounds developed by a respondent in response to a motion
    filed before the Trial Chamber, Trial Chamber I of
    the Special Court for Sierra
    Leone already ruled in another case:

The Chamber wishes to express its strong disfavour of the practice
of expanding the nature of submissions in response to a motion
to the extent of
introducing specific, new and separate arguments amounting to, as it has been
identified by the Defence in its Response,
a “counter motion”. The
proper course of action in order to avoid confusion with reference to the nature
and time limits
for subsequent responses and replies is for the Defence to
identify and distinguish the new legal issue, and then file a separate
and
distinct motion.
[18]


  1. In the AFRC Case, on the issue of new requests sought for the first time
    in Reply, Trial Chamber II already held:

The Trial Chamber notes that, in its Reply, the Defence sought to
substantially modify the relief sought. This is a practice that
must be
discouraged. A Reply is meant to answer matters raised by the other party in its
Response, not to claim additional relief
to that sought in the Motion. Obviously
the other party, having already filed a Response to the Motion, has no way under
the Rules
to answer the new prayer, except to apply to the Trial Chamber for
leave to do so. In future, the Trial Chamber will not hear claims
for additional
relief contained in a
Reply.[19]


This same finding was made in the Impugned
Decision.[20]


  1. Trial Chamber II also stressed that such practice casts confusion with reference
    to the nature and time limits for subsequent responses
    and replies:

The Trial Chamber wishes to express its strong disfavour for the
practice of combining pleadings or submissions for which the Rules
prescribe
different filing time limits. As the Defence has rightly observed, Rule 7 (C) of
the Rules provides that “unless
otherwise ordered by the Trial Chamber, a
response to a motion shall be filed within ten days while a reply to response
shall be
filed within five days.” We note that in this case the
Prosecution’s Combined Reply comprises two pleadings, namely the
Prosecution Response to the Defence Reply (for which a filing time limit of five
days is applicable), and the Prosecution’s
Reply to the Defence Notice and
Request (for which a filing time limit of ten days is applicable). The proper
and preferred course
of action is for the parties to file the various responses
and replies in separate documents in order to avoid confusion over issues
as
well as time frames. In the present case we observe that the irregularity by the
Prosecution has not occasioned a miscarriage
of justice as their “Combined
Reply” was filed on the 18 May 2005, five days after the filing of the
Defence Reply. The
Prosecution therefore appears to have complied with both time
limits prescribed by Rule 7 (C). The preliminary objection is accordingly
overruled.[21]


  1. As regards new grounds made in a response before the Appeals Chamber, it must
    first and foremost be reminded that the requirement
    for leave to submit grounds
    to the Appeals Chamber prevents a party which did not apply for leave to appeal
    from submitting new grounds
    of appeal. The Appeals Chamber already ruled
    that:

for the need to deal with the issue raised in these proceedings
once and for all in order to clear any doubt as to the limits of the
Court’s inherent jurisdiction, it would have been in order to refuse to
entertain the proceedings on the ground that there
is no procedural foundation
for approaching the Appeals Chamber in matters such as this, touching on a
decision of the Trial Chamber
rendered in a motion under Rule 73(A), without
prior leave of the Trial
Chamber.[22]


Consequently, a party who has not applied for a leave to appeal cannot take
advantage of the leave granted to another party to raise
grounds of appeal in
its response to the appeal motion.


  1. As regards new grounds or requests made by the appellant in its reply,
    Paragraph 10 of the Practice Direction for Certain Appeals
    provides that,
    where leave to appeal is granted, the appellant shall, in accordance with the
    Rules, file and serve on the other parties
    a notice of appeal containing,
    notably, (c) the grounds of appeal and (d) the relief sought. A new ground or
    request made by the
    appellant in its reply cannot, by that very fact, comply
    with Paragraph 10 of the Practice Direction since it was not mentioned in
    the
    notice of appeal. Moreover, the above comments made by Trial Chambers about
    “confusion with reference to the nature and
    time limits for subsequent
    responses and replies” cast on the trial proceedings are equally
    applicable in appeal. For these
    reasons, the Appeals Chamber finds that such new
    grounds or requests are inadmissible.
  2. This finding, however, shall not apply to new submissions made in response or
    reply by the Parties in connection with the grounds
    and requests properly
    submitted in the appeal. The confusion met in the current Appeal between, on the
    one hand, grounds and requests,
    and, on the other hand, submissions, requires
    some urgent clarification by the Appeals Chamber.
  3. “Grounds” are defined in Paragraph 10(c) of the Practice Direction
    for Certain Appeals which provides that they consist
    of “clear concise
    statements of the errors complained
    of”.[23]
    Although Article 20(1) of the Statute and Rule 106 apply to appeals from
    convicted persons, the list of errors referred to in these
    provisions may
    provide some guidance, albeit limited, to interlocutory appeals under Rule
    73(B). These errors are “(a) A procedural
    error; (b) An
    error on a question of law invalidating the decision; (c) An error
    of fact which has occasioned a miscarriage of
    justice.”[24] To
    that list, a decision of Trial Chamber I in the RUF Case added appeals
    based on a legal issue that is of “general significance to the
    Tribunal’s
    jurisprudence”[25],
    but that extension of the standard grounds of appeal relied on a prior version
    of the International Criminal Tribunal for the Former
    Yugoslavia
    (“ICTY”) Rule
    73(B)[26] and goes
    against the otherwise established jurisprudence of the Special Court for Sierra
    Leone on the matter.
  4. As regards “requests”, Paragraph 10(d) of the Practice Direction
    provides that the notice of appeal shall mention “the
    relief
    sought”. On the nature of that relief, Article 20(2) of the Statute and
    Rule 106(B) may also be of some guidance in
    reaching the finding that it may
    consist in the reversal or revision of the decision taken by the Trial
    Chamber.[27]
  5. When new grounds or requests not mentioned in the notice of appeal are, for the
    above reasons, inadmissible, new arguments, that
    are related to, either
    supporting or challenging, the appellant’s admissible grounds and requests
    may be considered admissible
    in a response to the appeal motion. Submission of
    these new arguments is the main purpose of a response to an appeal motion and
    does
    not cast any “confusion with reference to the nature and time limits
    for subsequent responses and replies” in the proceedings:
    indeed, they can
    only be replied by the appellant in the normal way provided by the Rules and do
    not create a new right to respond
    for the other Parties.
  6. New arguments in reply may also be deemed admissible, with the limitation that
    they should be strictly limited to the purpose of
    replying to the arguments
    developed in response to the appeal motion. New arguments supporting the appeal
    motion which do not reply
    to the Respondent’s arguments challenging it
    shall accordingly not be admitted. To rule otherwise would jeopardize the
    Respondent’s
    right to challenge the appeal motion.

(c) Application to the Current Case


  1. In the instant case, the Appeals Chamber needs to determine the following
    preliminary issues in relation to the Admissibility of
    New Grounds of Appeal or
    Requests Submitted in Response/Reply:
    1. The
      admissibility of the “Additional Grounds and Arguments” submitted by
      the Defence Office in its Response;
    2. The
      admissibility of the Defence Request, in its Reply, not to consider Justice
      Doherty’s “Personal Comment”.

(i) Admissibility of the “Additional Grounds and Arguments”
Submitted by the Defence Office in its Response


  1. Although the entitling of this section of the Defence Office’s submissions
    in Response may be awkward, the Registrar’s
    formal approach, requesting
    the Appeals Chamber to reject these “Additional Grounds and
    Arguments” as a whole, is not
    satisfactory. As mentioned earlier, a
    distinction must be made between “Additional Grounds” – which
    are inadmissible
    at this stage – and “Additional Arguments” in
    relation with the Appellants’ grounds of appeal, – which
    may be
    admitted under the conditions set forth above.
  2. A careful reading of the “Additional Grounds and Arguments” section
    of the Response filed by the Defence Office reveals
    that some of the submissions
    it contains are closely related to and support the Appellants Grounds of
    Appeal:
    1. The
      Defence Office’s submissions on the mandate of the Defence Office and its
      relation with the Registry (Section 1 of the Defence
      Office’s Additional
      Grounds and Arguments) and the Trial Chamber’s evaluation of the
      Registrar’s action (Section
      4 of the Defence Office’s Additional
      Grounds and Arguments) are supporting the Appellants’ sixth Ground of
      Appeal on
      the lack of power of the Registrar to strike Counsel out of the list
      of Eligible Counsel.
    2. The
      Defence Office’s submissions on the consultation between the Registrar and
      the Trial Chamber (Section 3 of the Defence Office’s
      Additional Grounds
      and Arguments) are supporting the Appellants’ seventh Ground of Appeal on
      the impartiality of the Trial
      Chamber and the recusation of its Judges.
  3. These additional arguments are submissions supporting the Appellants’
    Grounds of Appeal and are admissible in Response to the
    Appeal Motion. They do
    not require a further Response from the Registrar.
  4. On the contrary, the Defence Office’s submission relating to the Trial
    Chamber’s finding that the Deputy Principal Defender
    undermined its Order
    or was unwilling to do her job (Section 2 of the Defence Office’s
    Additional Grounds and Arguments) does
    not relate to any of the
    Appellants’ Grounds of Appeal. Rather, the Appeals Chamber is of the view
    that this submission is
    an attempt to appeal the Trial Chamber’s
    determination of the Deputy Principal Defender’s Cross Motion in the
    Impugned
    Decision. If the Defence Office wanted to appeal the Trial
    Chamber’s Decision on its Cross Motion, it should have applied for
    a leave
    to appeal. Since it did not, this additional ground of appeal is
    inadmissible.

(ii) Admissibility of the Defence Request, in its Reply, not to Consider
Justice Doherty’s “Personal Comment”


  1. This request was not mentioned in the original Notice of Appeal filed by the
    Defence. The submissions supporting it do not relate
    to the grounds of appeal
    developed by the Defence in its Appeal Motion. In accordance with the above
    mentioned applicable standards,
    the Appeals Chamber considers that this new
    request is inadmissible and, consequently, dismisses it.

4. Fourth Preliminary Issue: Registrar’s Additional Motion

(a) Summary of Issue


  1. In addition to his Response to the Appeal Motion, the Registrar also filed, on
    13 September 2005, an “Additional Motion”.
    The purpose of this
    Additional Motion is to challenge the “Additional Grounds and
    Arguments” submitted in its Response
    by the Defence Office. The Registrar
    submits that the Defence Office is not entitled to plead additional grounds to
    the grounds of
    appeal set out in the Notice of Appeal and that, if it wished to
    do so, it should have applied for leave to appeal, but it did not.
    The Registrar
    submits that these new Grounds should not be considered by the Appeals Chamber
    and, should the Appeals Chamber nonetheless
    decide to consider them, requests to
    be given the opportunity to file a response.
  2. In its Response to the Registrar’s Additional Motion, the Defence Office
    submits that this Additional Motion is not admissible
    for lack of legal basis
    and challenges the characterisation of his statements as “Grounds of
    Appeal”. The Defence adds
    that the Registrar has been accorded a fair
    opportunity to present his arguments and opposes the Registrar’s request
    to be
    given the opportunity to file another response.

(b) Merits of the Registrar’s Additional Motion


  1. The Registrar’s Additional Motion requests the Appeals Chamber not to
    consider the “Additional Grounds and Arguments”
    raised by the
    Defence Office in its Response, or, in the alternative, that the Appeals Chamber
    leaves the Registrar respond them.
    The Appeals Chamber will address these two
    alternative requests separately.
  2. As regards the request for the Appeals Chamber not to consider the
    “Additional Grounds and Arguments” raised by the Defence
    Office in
    its Response to the Appeal, Rule 113(B) specifically provides that no further
    submissions, but the appellant’s submissions
    in
    appeal[28] and
    reply[29] and the
    respondent’s
    response[30] may be
    filed, except with leave of the Appeals Chamber. In particular, the Statute and
    the Rules nowhere provide for a right of a
    respondent to reply/rejoin another
    respondent’s response. It is therefore the view of the Appeals Chamber
    that the proper way
    to address the new grounds and arguments raised in the
    Defence Office’s Response was for the Registrar to address them in his
    own
    Response and that the request not to consider the Defence Office’s
    “Additional Grounds and Arguments” was anyway
    to be filed within the
    time-limit for filing the Registrar’s Response pursuant to Paragraph 12 of
    the Practice Direction for
    Certain Appeals. In the current case, and for the
    reasons set out
    earlier,[31] the
    time-limit for filing responses to the Appeal expired on 12 September 2005.
    Since the Registrar’s Additional Motion was
    filed on 13 September 2005 and
    no application for extension of time under Rule 116 was filed by the Registrar,
    the Appeals Chamber
    finds that the Registrar’s request not to consider the
    Defence Office’s “Additional Grounds and Arguments”
    was
    out-of-time. The Registrar’s Additional Motion is therefore dismissed on
    this aspect.
  3. The
    second request mentioned above seeks leave to respond the Defence Office’s
    “Additional Grounds and Arguments”.
    Such response to grounds and
    arguments brought in another Respondent’s response can only be made,
    pursuant to Rule 113(B),
    with the Appeals Chamber’s express leave. Rule
    113(B) does not specify the criteria to be satisfied for such leave, but it
    is
    obvious that such leaves shall remain very exceptional and be granted only where
    the respect of the adversarial character of the
    proceedings strongly requires
    so. Since the Appeals Chamber has already decided that the additional ground
    raised in the Defence
    Office’s Response was inadmissible, there is no need
    for the Registrar to respond it. Leave to do so under Rule 113(B) is accordingly
    denied. As regards the application for leave to respond the Defence
    Office’s additional arguments, the Appeals Chamber is of
    the view that
    these arguments were properly made in the Defence Office’s Response, that
    the Registrar has already been given
    full opportunity to respond the Appeal
    Motion and that he did so, that the Statute and Rules do not provide for a right
    of a respondent
    to reply/rejoin another respondent’s response and that
    there is consequently no reason for leaving the Registrar to file further
    submissions in relation to these arguments.
  4. The Registrar’s Additional Motion is therefore denied in its entirety.
    This finding does not vary, however, the Appeals Chamber’s
    earlier finding
    on the admissibility of the Defence Office’s “Additional Grounds and
    Arguments”.[32]

B. Merits of the Appeal

1. Defence First Ground of Appeal


  1. In its First Ground of Appeal, the Defence challenges the alleged
    Registrar’s Decision not to reassign Counsel and the Trial
    Chamber’s
    power or authority to interfere in the statutory right of the Accused to choose
    their assigned Counsel.
  2. The “Registrar’s Decision” referred to in this ground is
    embodied by a Letter from the Legal Adviser of the Registrar,
    Mr. Kevin Maguire,
    to Ms. Elizabeth Nahamya, Deputy Principal Defender, of 19 May
    2005.[33] This
    decision by the Registrar follows several correspondences addressed to him by
    the Deputy Principal Defender in which she informed
    him of her intention to
    reassign the withdrawn
    Counsel[34] and
    requested his written instructions.
    [35] In the Letter of
    19 May 2005, Mr. Maguire writes:

I have been asked by the Registrar to confirm formally with you
that Counsel WILBERT HARRIS and KEVIN METZGER are not to be reappointed
as lead
counsel in the AFRC trial in Trial chamber 2.


The reason was conveyed to you verbally early this afternoon by the Registrar
in his office which was that the trial chamber had made
an order allowing
counsel to withdraw and that order was to stand.


The trial chamber confirmed this order again on 16 May following an oral
notification of the desire to re-appoint counsel and the
court said that the
order had been made and any letters, correspondence or documents that seek to go
behind that decision cannot
be countenanced by the court.


  1. In the view of the Appeals Chamber, the First Ground of Appeal raises three
    questions: First, did the Trial Chamber have jurisdiction
    to judicially review
    the decision of the Registrar? If the Chamber had jurisdiction, then, second,
    could the Registrar decide on
    the issue of the reassignment of the withdrawn
    Counsel? And, third, was the Trial Chamber right, in the Impugned Decision, in
    confirming
    that decision from the Registrar? The Appeals Chamber now addresses
    those three issues consecutively.

(a) Trial Chamber’s Jurisdiction to Judicially Review the Decision not
to Re-assign Counsel


  1. The Motion to re-assign specifically requested the Trial Chamber to declare null
    and void the Registrar’s decision not to re-assign
    the withdrawn Counsel.
    Trial Chamber II addressed that issue in the Impugned Decision and proceeded to
    a review of the motives of
    the Registrar’s decision, thereby implicitly
    exercising its jurisdiction to judicially review a decision of an administrative
    nature without further justification. It is the view of the Appeals Chamber that
    the Trial Chamber’s jurisdiction to judicially
    review the
    Registrar’s decision was not that obvious and deserved some
    explanations.
  2. Rule 45 is mute on the remedy against a decision refusing the assignment of
    Counsel. This issue is specifically addressed in the
    Directive, which
    provides:[36]

The Suspect or Accused whose request for assignment of counsel has
been denied or who is subject to a demand under Article 9(A)(ii)
of this
Directive may bring a Preliminary Motion before the appropriate Chamber
objecting to the Principal Defender’s decision
in accordance with Rule
72(B)(iv) of the Rules.


  1. It is obvious that the disposition of Article 12(A) of the Directive do apply
    only in the case of the initial assignment of Counsel,
    at a stage where
    Preliminary Motions can be filed pursuant to Rule 72(A), namely “within 21
    days following disclosure by the
    Prosecutor to the Defence of all the material
    envisaged by Rule 66(A)(i)”. The possibility that Article 12(A) of the
    Directive
    may derogate Rule 72(A) of the Rules of Procedure and Evidence by
    allowing the filing of Preliminary Motions at other stages of the
    procedure,
    especially once the trial has started, cannot be contemplated since the
    Directive was precisely issued by the Registrar
    acting upon the authority given
    to him by the Rules. The Appeals Chamber concurs on this point with the finding
    of Trial Chamber
    in its decision of 6 May 2004 in the Brima Case, that
    “the provisions of the Directive on the Assignment of Counsel promulgated
    by the Registrar on the 3rd October, 2003, cannot
    operate to either replace or to amend the Rules of Procedure and Evidence
    adopted by the Plenary of Judges
    of the Special
    Court”.[37] The
    remedy contemplated in Article 12(A) is therefore not applicable in the current
    case, since the stage of Preliminary Motions
    is far overstayed.
  2. The Appeals Chamber notes that the jurisprudence of other sister Tribunals has
    admitted, in the silence of the Rules and Directive
    applicable before those
    Tribunals, that the Registrar’s administrative decision denying the
    assignment of Counsel could be
    reviewed by the President, when the Accused had
    an interest to
    protect.[38] However,
    such power to judicially review an administrative decision of the Registrar is
    denied to the Trial
    Chamber.[39]
  3. The
    requirement for a judicial review of administrative decisions where the Accused
    has an interest to protect was perfectly justified
    by Justice Pillay, the then
    President of the International Criminal Tribunal for Rwanda, in her decision of
    13 November
    2002:[40]

Modern systems of Administrative Law have built in review
procedures to ensure fairness when individual rights and protected interests
are
in issue, or to preserve the interests of justice. In the context of the
Tribunal, Rules 19 and 33(A) of the Rules ensure that
such review is available
in appropriate cases. While the Registrar has the responsibility of ensuring
that all decisions are procedurally
and substantially fair, not every decision
by the Registrar can be the subject of review by the President. The Registrar
must be
free to conduct the business of the Registry without undue interference
by Presidential review.


In all systems of administrative law, a threshold condition must be satisfied
before an administrative decision may be impugned by
supervisory review. There
are various formulations of this threshold condition in national jurisdictions,
but a common theme is that
the decision sought to be challenged, must involve a
substantive right that should be protected as a matter of human rights
jurisprudence
or public policy. An application for review of the
Registrar’s decision by the President on the basis that it is unfair
procedurally
or substantively, is admissible under Rules 19 and 33(A) of the
Rules, if the accused has a protective right or interest, or if it
is otherwise
in the interests of justice.


  1. The Appeals Chamber concurs with Justice Pillay’s view on the need for a
    juridical review of administrative decisions affecting
    the rights of the
    Accused. However, the Appeals Chamber is not convinced that, in the specific
    situation of the Special Court, this
    judicial power should necessarily fall
    within the exclusive province of the President for the following reasons.
  2. First,
    the Appeals Chamber notes that Article 24 (E) and (F) of the Directive submits
    the Principal Defender’s decision to withdraw
    Counsel to the judicial
    review of “the presiding Judge of the appropriate Chamber”. This
    regulation is not problematic
    when, as in the current case, the trial is pending
    before a Trial Chamber, since the question is then submitted to the Presiding
    Judge of the Trial Chamber; but, once the case has reached the appeal phase,
    then the decision to withdraw Counsel would be submitted
    to the President of the
    Appeals Chamber, who is, pursuant to Article 12(3) of the Statute, the President
    of the Special Court. In
    that situation, would the decision to assign Counsel
    fall in the exclusive province of the President of the Special Court, he would
    be the only authority to judicially review the administrative decision to
    withdraw Counsel and then, once again, the decision denying
    the assignment of
    Counsel. That may put the President of the Special Court in a difficult
    situation.
  3. Second,
    although the remedy provided by Article 12(A) of the Directive is not applicable
    in the current case, the Appeals Chamber
    notes that this Article gives
    jurisdiction to the Trial Chamber to review, by way of Preliminary Motion, the
    administrative decision
    on assignment of Counsel. The Appeals Chamber sees no
    reason to depart from that solution and considers that Article 12(A) should
    apply mutatis mutandis in the present situation and allow to seize the
    Trial Chamber by way of an interlocutory Motion pursuant to Rule 73(A) of the
    judicial
    review of the administrative decision on assignment of counsel.
  4. Third, the Appeals Chamber concurs with the finding made by Trial Chamber I in
    its decision of 6 May 2004 in the Brima Case, that such judicial review
    falls, due to the silence of the regulations applicable before the Special
    Court, within the inherent
    jurisdiction of the Trial
    Chamber:[41]

[T]he chamber is of the opinion that the motion, even though
brought under the wrong Rule, can, and so do we decide, in the overall
interests
of justice and to prevent a violation of the rights of the Accused, be examined
by invoking our inherent jurisdiction to
entertain it and to adjudicate on it on
the ground of a denial of request for assignment of Counsel within the context
of Article
17(4)(d) of the Statute.


  1. The
    Appeals Chamber refers to the above quoted reasoning of President Pillay as
    regards the reasons for exercising such inherent jurisdiction.
  2. For the foregoing reasons, the Appeals Chamber finds that the Trial Chamber had
    jurisdiction to judicially review the Registrar’s
    Decision not to
    re-assign Counsel.

(b) The Decision of the Registrar not to reassign Counsel


  1. It is the view of the Appeals Chamber that the Statute, the Rules of Procedure
    and Evidence and the Directive on the Assignment of
    Counsel describe a coherent
    system in which the main responsibility for assigning Counsel to the Accused is
    given to the Defence
    Office set up by the Registrar pursuant to Rule 45.
  2. The Defence Office and, at his head, the Principal Defender are notably
    responsible for:
  • Ensuring the
    rights of suspects and
    accused;[42]
  • Providing
    representation to the suspects and
    accused;[43]
  • Maintaining a
    list of highly qualified criminal defence counsel who are appropriate to act as
    duty counsel or to lead the defence
    or appeal of an
    accused;[44]
  • Determining the
    suspect or accused requests for assignment of
    Counsel;[45]
  • Assigning
    Counsel;[46]
  • Assigning
    Counsel in the interests of
    justice;[47]
  • Notifying
    his Decision to assign Counsel to the suspect or accused and his
    Counsel;[48]
  • Negotiating and
    Entering Legal Services Contracts with the Assigned
    Counsel;[49]
  • Determining
    requests for replacement of assigned
    Counsel;[50]
  • Withdrawing
    Counsel when the Suspect or Accused is no longer
    indigent;[51]
  • Withdrawing
    Counsel in other
    situations;[52]
  • In the event of
    the withdrawal of a Counsel, assigning another Counsel to the
    Accused.[53]
  1. On the other hand, the Registrar is given the responsibility :
  • for the
    administration and servicing of the Special
    Court;[54]
  • for
    establishing, maintaining and developing a Defence Office, for the purpose of
    ensuring the rights of suspects and
    accused;[55]
  • for assisting
    the Principal Defender in the performance of his
    functions;[56]
  • for maintaining
    and developing a Defence Office, for the purpose of ensuring the rights of
    suspects and
    accused.[57]
  1. The Appeals Chamber notes that the Statute itself does not mention the Defence
    Office, or the Principal Defender, and is mute on
    which organ is given the
    responsibility for ensuring the rights of the Accused provided in Article 17 of
    the statute. Article 16(1)
    of the Statute provides that the Registry is
    responsible for the administration and servicing of the Special Court, which
    duty may
    include some aspects of protection of the rights of the Accused, but is
    nevertheless quite distinct. On the other hand, Rule 45 does
    provide for the
    establishment of a Defence Office by the Registrar and that this Defence Office
    is given the main responsibility
    for ensuring the rights of suspects and
    accused.
  2. It results from the Statute and Rules that the Defence Office is not an
    independent organ of the Special Court, as Chambers, the
    Office of the
    Prosecutor and the Registry are pursuant to Articles 11, 12, 15 and 16 of the
    Statute. As a creation of the Registrar,
    the Defence Office and at its head, the
    Principal Defender, remain under the administrative authority of the Registrar.
    Although
    the Defence Office is given the main responsibility for ensuring the
    rights of the accused by accomplishing the functions mentioned
    above, it is
    supposed to exercise its duty under the administrative authority of the
    Registrar who, notably, is in charge of recruiting
    its staff, including the
    Principal Defender, in accordance with his general responsibility on
    administration pursuant to Article
    16(1) of the Statute.
  3. It may be inferred from the creation of the Defence Office by the Registrar
    pursuant to Rule 45 that the Registrar bore the primary
    responsibility for
    ensuring the rights of the Accused pursuant to Article 17 of the Statute and
    that, by establishing the Defence
    Office, he delegated this responsibility to
    it. But this interpretation would be contrary to the Statute of the Special
    Court according
    to which the responsibility for ensuring the rights of the
    Accused does not fall on any organ in particular but rather appears, in
    the
    silence of Article 17, as a common duty shared by the three organs. The Rules
    cannot vary the responsibilities of the organs
    of the Court under the Statute.
    Moreover, other Rules provide the responsibility of the other organs of the
    Special Court, notably
    Chambers,[58] for
    other aspects of ensuring the rights of the accused. The delegation given by the
    Registrar to the Defence Office is therefore
    limited to certain aspects of the
    Registrar’s responsibility for ensuring the rights of the accused under
    the Statute, namely
    the administrative aspect of the task, which includes
    notably, assignment, payment, withdrawal and replacement of Counsel. On his
    part, the Registrar still keeps the responsibility for ensuring certain aspects
    of the rights of the Accused, notably as regards
    their rights in detention
    pursuant to Rule 33(C).
  4. Having clarified the repartition of responsibilities between the Registrar and
    the Defence Office, it appears that the responsibility
    to reassign the withdrawn
    Counsel, or to assign other Counsel in compliance with Trial Chamber II’s
    express order, fell in
    the province of the Defence Office pursuant to Rule 45(E)
    and Article 23(D) of the Directive.
  5. Does that mean that the Registrar could not interfere in the matter? The Appeals
    Chamber does not find so for two reasons. First,
    the above mentioned
    correspondences of the Deputy Principal Defender to the Registrar show that she
    expected and requested his written instructions on the matter, thereby
    putting him in a position of administrative authority under which the Deputy
    Principal Defender intended to
    act. Second, having found that, by creating the
    Defence Office, the Registrar delegated part of his power and responsibility in
    the
    enforcement of the rights of the Defence to it, it results from English
    administrative
    law[59], that the
    Registrar did not divest himself of his power and can therefore act concurrently
    with the Principal Defender, in particular
    when she requires him to do so as in
    the current case.
  6. The Appeals Chamber therefore finds that the Registrar had the power to decide
    on the issue of the re-assignment of the withdrawn
    Counsel, especially when he
    had expressly been seized of the matter by the Deputy Principal Defender,
    thereby deferring to his administrative
    authority on the Defence Office. The
    Appeals Chamber observes that the Registrar was extremely cautious in not
    interfering in the
    Principal Defender’s province by limiting his
    intervention to instructions, when he may have decided to appoint by himself
    new
    Counsels to the Accused. The Appeals Chamber now turns to the question of
    whether the Registrar did take the right decision.
  7. Rule 45(E) of the Rules of Procedure and Evidence provides that in the event of
    the withdrawal of a Counsel, “the Principal
    Defender shall assign another
    Counsel who may be a member of the Defence Office, to the indigent
    accused”. Article 24 –
    Withdrawal of Assignment in Other Situations
    - of the Directive, applicable in the current case, provides in Paragraph (D)
    that “[t]he
    Principal Defender shall immediately assign a new Counsel to
    the Suspect or Accused”. Neither Rule 45(E) nor Article 24(D)
    does
    provide, in the circumstances of the withdrawal of Counsel, discretion of the
    Principal Defender to reassign the same Counsel
    as withdrawn. The choice of the
    new Counsel to be assigned belongs to the Principal Defender, in consultation
    with the suspect or
    accused, pursuant to Article 9(A)(i) of the Directive, but
    Rule 45(E) and Article 24(D) make it clear that the assigned Counsel shall
    be
    different from the withdrawn one.
  8. The Appeals Chamber does not see any merits in the Defence allegation that the
    exclusion of the withdrawn Counsel from re-assignment
    violates the
    accused’s right to a Counsel of their own choosing. On this aspect, the
    Appeals Chamber concurs with the Trial
    Chamber’s finding in the Impugned
    Decision[60], agreed
    upon by both
    Respondents[61], that
    the right to counsel of the Accused’s own choosing is not absolute,
    especially in the case of indigent accused, and observes
    that the conditions of
    exercise of this right are set up by the Directive. In particular, the indigent
    Accused shall be consulted
    on the choice of his counsel pursuant to article
    9(A)(i) of the Directive and he may only elect one Counsel from the list of
    qualified
    counsel set up by the Principal Defender in accordance with Rule 45(C)
    and Article 13 of the Directive. The Appeals Chamber notes
    that this
    consultation process goes substantially further in the protection of the
    indigent accused right to a counsel of their own
    choosing than the regulations
    applicable before other sister Tribunals, which provide that the Registrar
    chooses and appoints Counsel
    but does not mention any consultation with the
    Accused.[62] The SCSL
    regulations are also fully consistent with the jurisprudence of the European
    Court for Human Rights, in particular its Decision
    in the Mayzit v.
    Russia
    Case relied upon by the
    Applicants:[63]

Notwithstanding the importance of a relationship of confidence
between lawyer and client, the right to choose one’s own counsel
cannot be
considered to be absolute. It is necessarily subject to certain limitations
where free legal aid is concerned and also
where it is for the courts to decide
whether the interests of justice require that the accused be defended by counsel
appointed by
them. When appointing defence counsel the national courts must
certainly have regard to the defendant’s wishes. However, they
can
override those wishes when there are relevant and sufficient grounds for holding
that this is necessary in the interests of justice
(see Croissant
v. Germany, judgment of 25 September 1992, Series
A no. 237-B, § 29).


  1. It is therefore the view of the Appeals Chamber that the aforementioned
    regulations applicable before the Special Court are fully
    consistent with
    Article 17(4)(d) right of the Accused to a counsel of his own choosing.
  2. In his decision embodied by Mr. Maguire’s Letter of 19 May 2005, the
    Registrar did nothing more than restate the order “allowing
    counsel to
    withdraw” made by Trial Chamber II on 12 May
    2005[64] and confirmed
    “again on 16 May following an oral notification of the desire to
    re-appoint counsel” when “the court
    said that the order had been
    made and any letters, correspondence or documents that seek to go behind that
    decision cannot be countenanced
    by the
    court”.[65]
  3. In the view of the Appeals Chamber, the Registrar may have made his decision
    clearer by referring to the Trial Chamber’s orders
    directing “the
    Principal Defender to assign another counsel as lead counsel to” Brima and
    Kamara[66] and to the
    relevant dispositions of Rule 45(E) and Article 24(D) of the Directive. But it
    is the Appeals Chamber’s view that
    the Registrar’s decision that the
    withdrawn Counsel shall not be re-assigned was fully consistent with these
    regulations and
    did not violate in any way the Accused right to Counsel of their
    own choosing.
  4. The Appeals Chamber therefore finds that the Registrar had the capacity to take
    the decision embodied by Mr. Maguire’s letter
    of 19 May 2005 and that the
    decision he made was correct.

(c) The Trial Chamber’s Refusal to Declare the Decision of the Registrar
Not to Re-assign Counsel Null and Void

  1. To
    deny the Applicants’ request to declare the Registrar’s decision not
    to re-assign Counsel null and void, the Trial
    Chamber first justifies the
    intervention of the Registrar in that matter on the ground that, “in the
    absence of the actual
    Principal Defender, certain obligations to carry out
    duties fall out upon the
    Registrar”.[67]
    The Appeals Chamber disagrees with that opinion of the Trial Chamber. As held by
    Trial Chamber I in its decision of 6 May 2004 in
    the same
    case:[68]

In fact, in view of the very nature and functioning of public or
private services, it is, and should always be envisaged, that the
substantive
holder of the position is not expected to be there at all times. In order to
ensure a proper functioning and a continuity
of services with a view to avoiding
a disruption in the administrative machinery, the Administration envisages and
recognizes the
concept of “Acting Officials” in the absence of their
substantive holders.


The Chamber, contrary to the Applicant’s submission on this issue, is
of the opinion that where an official is properly appointed
or designated to act
in a position during the absence of the substantive holder of that position, the
Acting Official enjoys the
same privileges and prerogatives as those of the
substantive official and in that capacity, can take the decisions inherent in
that
position.


The Appeals Chamber concurs with this opinion of Trial Chamber I and
considers that, in the absence of the actual Principal Defender,
the duty to
decide on the reassignment of the withdrawn Counsel automatically fell on the
Deputy Principal Defender in her acting
capacity.


  1. However, the Appeals Chamber agrees with the Trial Chamber’s next finding
    that the Registrar “has a further overall duty
    to act as principal
    administrator of the Court”. The Appeals Chamber finds that the
    Registrar’s capacity to decide not
    to re-assign Counsel derived from his
    administrative authority on the Defence Office and, as explained above, from the
    delegation
    of his statutory prerogatives as regards the enforcement of the
    rights of the Defence pursuant to Articles 16(1) and 17 of the SCSL
    Statute,
    which did not divest him from his powers in the matter.
  2. As regards the substance of the Registrar’s decision, the Appeals Chamber
    has already found that it was fully compliant with
    Rule 45(E) and Article 24(D)
    of the Directive, applicable in the case, and did not violate in any way the
    Accused’s statutory
    right to have a Counsel of their own choosing. The
    Registrar’s decision was furthermore in perfect accordance with the Trial
    Chamber’s oral ruling of 12 May 2005, as confirmed on 16 May 2005. The
    Appeals Chamber therefore finds that the Impugned Decision
    rightly dismissed the
    Applicants’ request to declare the Registrar decision null and void.
  3. For the foregoing reasons, the Appeals Chamber dismisses the Appellants’
    first ground of appeal in its entirety.

2. Defence Second Ground of Appeal


  1. In their second ground of appeal, the Appellants challenge the Trial
    Chamber’s refusal to order the Acting Principal Defender
    to immediately
    enter into a legal contract with Messrs. Metzger and
    Harris.[69] The
    Appeals Chamber notes that the Impugned Decision denies the Applicants request
    on that aspect on the ground that it does “not
    have the power to interfere
    with the law relating to privity of contract”.
  2. Without need to enter the details of privity of contract and of the way Legal
    Services Contracts are concluded, the Appeals Chamber
    observes that, pursuant to
    Article 1(A) of the Directive, the Legal Services Contract is defined as an
    “agreement between Contracting
    Counsel and the Principal Defender for the
    representation of a Suspect or Accused before the Special Court for Sierra Leone
    outlined
    in Article 16 of this Directive”. As confirmed by Article 16(C)
    of the Directive, which provides that it is entered “as
    soon as
    practicable after assignment”, the Legal Services Contract is passed
    between the assigned Counsel and the Principal
    Defender. Since Mssrs. Metzger
    and Harris were no more assigned after their voluntary withdrawal on 12 May
    2005, and could not be
    reassigned pursuant to Rule 45(E), Article 24(D) of the
    Directive and the Trial chamber’s express order, there was no way a
    Legal
    Services Contract could be concluded between them and the Principal
    Defender.
  3. Although the reason given by the Trial Chamber in the Impugned Decision is
    incorrect, the Appeals Chamber agrees with the denial
    of the request to order
    the Principal Defender to enter a Legal Services Contract with the withdrawn
    Counsel and therefore dismisses
    the second ground of appeal in its entirety.

3. Defence Third Ground of Appeal


  1. As Third Ground of Appeal, the Defence challenges the denial of an order for a
    public hearing on its application. The Defence submits
    that the right of the
    Accused to a fair and public trial is guaranteed by Article 17(2) of the Statute
    and that the only statutory
    restriction upon that right is that of measures
    imposed by the Trial chamber for the protection of victims and witnesses. The
    Defence
    submits that Rule 73(A) gives the Trial Chamber the power and discretion
    to hear motions in open court and that the Trial Chamber
    misinterpreted this
    Rule in a way which erodes the rights of the Accused under Article 17 of the
    Statute.
  2. Article 17(2) of the Statue provides that the accused shall be given a fair and
    public hearing the purpose of which is to “protect
    litigants from the
    administration of justice in secret with no public
    scrutiny”.[70]
    This right can be restricted as provided for in Article 17(2) of the Statute in
    order to protect victims and witnesses. This right
    is implemented in the Rules
    of Procedure and Evidence, in particular Rule 78 which provides that
    “[a]ll proceedings before
    a Trial Chamber, other than deliberations of the
    Chamber, shall be held in public, unless otherwise provided”.
  3. The
    issue of publicity of the proceedings shall however be distinguished from the
    issue of their written or oral character. Written
    submissions are, unless
    otherwise specifically provided, public. Article 4(B) of the Practice Direction
    on Filing Documents provides:

“Where a Party, State, organization or person seeks to file
all or part of a document on a confidential basis, the party shall
mark the
document as ‘CONFIDENTIAL’ and indicate, on the relevant Court
Management Section form, the reasons for the
confidentiality. The Judge or
Chamber shall thereafter review the document and determine whether
confidentiality is necessary. Documents
that are not filed confidentially may be
used in press releases and be posted on the official website of the Special
Court.”


  1. The publicity of written submissions and decisions implies, as mentioned in
    Article 4(B) of the Practice Direction on Filing of Documents,
    their potential
    use in press releases and their accessibility through the Special Court’s
    Website. In these circumstances there
    is no question of justice being
    administered secretly.
  2. The
    Appeals Chamber therefore finds no merits in the assertion that Rule 73(A)
    provision according to which interlocutory motions
    may be ruled “based
    solely on the written submissions of the parties, unless it is decided to hear
    the parties in open Court”,
    is, or may be interpreted, in contradiction
    with the Accused right to a fair and public hearing pursuant to Article 17(2) of
    the
    Statute. In the current case, all the submissions filed in relation to the
    Motion to re-assign before the Trial Chamber were filed
    publicly and are freely
    accessible on the Special Court’s Website, as well as the Impugned
    Decision.
  3. The Appeals Chamber further finds that Rule 73(A) provides for a discretion of
    the Trial Chamber to determine on the opportunity
    of having an hearing, which
    may not be public if the Chamber decides so pursuant to Rule 79, and that Trial
    Chamber II did not err
    in law in deciding to determine the Motion to re-assign
    without organising such hearing in the Impugned Decision. This decision in
    no
    way could jeopardize the Accused right to a fair and public hearing pursuant to
    Article 17(2) of the Statute.
  4. For
    the foregoing reasons, the Appeal is dismissed on this ground.

4. Defence Fourth and Fifth Grounds of Appeal


  1. In their fourth ground of appeal, the Appellants submit that the Trial Chamber
    erroneously considered the Motion to re-assign as
    a Rule 45(E) application. In
    their fifth ground of appeal, the Appellants submit that the Trial Chamber
    erroneously considered the
    Motion to re-assign as an application for review of
    its earlier Decision to withdraw. The Appeals Chamber deems appropriate to
    address
    those two grounds together.
  2. The Impugned Decision finds that the Motion to re-assign “seeks to reverse
    an order granting relief which the defence itself
    sought” and therefore
    considers it as “frivolous and
    vexatious”.[71]
    This conclusion relies on the findings that “the two lead counsel were not
    sincere in their reasons for bringing their motion
    to withdraw from the case and
    that they never expected it to
    succeed”[72],
    that “it [was] unclear on what legal grounds this application [was]
    made”[73], and
    that “this application in reality [was] simply a application to reverse a
    majority decision given by the Trial Chamber
    on 12 May 2005 because in that
    decision all relief prayed for was granted to
    Counsel”.[74]
    The Appeals Chamber will address these three reasons consecutively.

(a) Sincerity of the Application to Withdraw


  1. The Appeals Chamber observes that this finding and the considerations on which
    it relies are purely findings of fact, namely the
    absence of direct evidence of
    a change in the circumstances having led to their withdrawal and the fact that
    the application to re-assign
    “emanate[d] from a letter from the accused
    purportedly written on the same day as the Trial Chamber’s order”.
    [75]
  2. As regards findings of fact made by the Trial Chamber, the Appeals Chamber
    recalls that, pursuant to Article 20(1)(c) of the Statute
    of the Special Court,
    it can only be seized of “an error of fact which has occasioned a
    miscarriage of justice” and that,
    pursuant to Article 20(2), the
    “Appeals Chamber may affirm, reverse or revise the decisions taken by the
    Trial Chamber”.
    This Appeals Chamber has already held that these
    dispositions were also applicable to interlocutory
    appeals.[76]
  3. These dispositions are the same as before other sister International
    Tribunals.[77] They
    have been interpreted by the Appeals Chamber of both sister International
    Tribunals as implying a limited control of the Trial
    Chamber’s assessment
    of facts, which may be overturned by the Appeals Chamber only where no
    reasonable trier of fact could
    have reached the same finding or where the
    finding is wholly erroneous. This Appeals Chamber concurs with the finding made
    in The Prosecutor v. Semanza, which relies on several judgements of both
    ICTR and ICTY Appeals
    Chamber:[78]

As regards errors of fact, as has been previously underscored by
the Appeals Chamber of both this Tribunal and of the International
Criminal
Tribunal for the former Yugoslavia (“ICTY”), the Appeals Chamber
will not lightly overturn findings of fact
made by a trial chamber. Where an
erroneous finding of fact is alleged, the Appeals Chamber will give deference to
the trial chamber
that heard the evidence at trial as it is best placed to
assess the evidence, including the demeanour of witnesses. The Appeals Chamber
will only interfere in those findings where no reasonable trier of fact could
have reached the same finding or where the finding
is wholly erroneous. If the
finding of fact is erroneous, it will be quashed or revised only if the error
occasioned a miscarriage
of
justice.[79]


The Appeals Chamber emphasises that, on appeal, a party cannot merely repeat
arguments that did not succeed at trial in the hope that
the Appeals Chamber
will consider them afresh. The appeals process is not a trial de novo and
the Appeals Chamber is not a second trier of fact. The burden is on the moving
party to demonstrate that the trial chamber’s
findings or decisions
constituted such an error as to warrant the intervention of the Appeals Chamber.
Thus, arguments of a party
which do not have the potential to cause the impugned
decision to be reversed or revised may be immediately dismissed by the Appeals
Chamber and need not be considered on the
merits.[80]


  1. The Appeals Chamber of the Special Court sees no reason to depart from this
    common jurisprudence of both sister International Criminal
    Tribunals’
    Appeals Chamber and will apply it in the current case.
  2. In the present case, neither the Trial Chamber’s conclusion as regards the
    sincerity of the Counsel’s application to
    withdraw, nor the considerations
    of facts on which this conclusion relies are challenged by the Appellants. The
    considerations of
    facts on which the Trial Chamber’s assessment of the
    sincerity of the application to withdraw relies are therefore not challenged
    by
    the Appellants.
  3. In
    these circumstances, the Appeals Chamber finds that the Appellants failed to
    demonstrate that the Trial Chamber’s finding
    that the application to
    withdraw was not sincere could not have been reached by a reasonable trier of
    fact or was wholly erroneous
    and therefore dismisses the grounds on that
    aspect.

(b) Lack of Legal Basis of the Application to Re-assign


  1. The Appeals Chamber notes the finding in the Impugned Decision
    that:[81]

it is unclear on what legal grounds this application is made. The
application does not say it is founded on Rule 45(D) and makes no
submission
that there are exceptional circumstances that would allow the Trial Chamber to
exercise its jurisdiction under Rule 45(D).


  1. Although this finding relates to the legal basis of the application to
    re-assign, it relies on another finding of facts, namely the
    fact that the
    applicants nowhere specify the legal basis of their application in their
    submissions.
  2. The Appeals Chamber finds this finding of fact wholly erroneous and refers to
    the very title of the Motion to re-assign the Trial
    chamber was seized
    of:[82]

Extremely Urgent Confidential Joint Motion for the Re-appointment
of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba
Brima and
Brima Bazzy Kamara, Pursuant to Articles 17(4)(C) and 17(4)(D) of the Statute
of the Special Court for Sierra Leone and Rule 54 of the Rules of Procedure
and
Evidence and the Inherent Jurisdiction of the Court


  1. It results from this very title of the application that the Motion to re-assign
    identified three different legal grounds, namely
    (i) Article 17(4)(C) and (D) of
    the Statute, (ii) Rule 54 and (iii) the inherent jurisdiction of the Court.
    References to Article
    17(4)(C) is made at paragraph 25 of the Motion to
    re-assign. References to Article 17(4) (D) are made at paragraphs 18, 21 and 24.
    Rule 54 and the inherent jurisdiction of the Court are referred to at paragraph
    36.
  2. Without assessing in any way on the appropriateness of these legal grounds, the
    Appeals Chamber therefore finds that Trial Chamber
    II finding that the Motion to
    re-assign was not motivated, is wholly erroneous and reverses the Impugned
    Decision on that aspect.

(c) Attempt to Reverse the Decision to Withdraw

  1. Once
    again, the finding made in the Impugned Decision, that the Motion to re-assign
    was indeed “an application to reverse a
    majority decision given by the
    Trial Chamber on 12 May
    2005”[83] relies
    on factual considerations by the Trial Chamber, namely that the Decision to
    withdraw granted all relief prayed for by the
    applicants and the “alacrity
    with which the accused and their Counsel and the Deputy Principal Defender
    sought to go behind
    that order and seek to reverse
    it”.[84]
  2. Neither
    the fact that the previous oral ruling of 12 May 2005 on the application to
    withdraw, as confirmed by the written decision
    of 20 May 2005, did indeed grant
    all the relief claimed by the applying Counsel, nor the alacrity of the
    applicant to claim and then
    move the Trial Chamber for their re-assignment are
    challenged by the Appellants. The considerations of facts on which the Trial
    Chamber’s
    finding that the application to re-assign was indeed an
    application to reverse the majority decision to withdraw Counsel are therefore
    not challenged by the Appellants.
  3. In
    these circumstances, the Appeals Chamber finds that the Appellants failed to
    demonstrate that the application to re-assign was
    not an application to reverse
    the majority decision of 12 May 2005 on the application to withdraw.
  4. This
    being said, the Appeals Chamber does not find that the sole fact that the
    application to re-assign was an attempt to reverse
    the decision on the
    application to withdraw makes it necessarily a “frivolous and
    vexatious” motion. An applicant whose
    application has been fully granted
    by a Chamber may have reasons to seek review of the Chamber’s decision
    when the circumstances
    which led to his or her application have changed. This
    opportunity to seek review of a decision by the same Chamber which rendered
    it,
    which is different from the right to appeal the
    decision,[85] is
    admitted in the jurisprudence of both sister International Tribunals. The
    Appeals Chamber of the International Criminal Tribunal
    for Rwanda clarified the
    criteria for review in the following terms:
    [86]

[...] it is clear from the Statute and
Rules[87] that, in
order for a Chamber to carry out a review, it must be satisfied that four
criteria have been met. There must be a new fact;
this new fact must not have
been known by the moving party at the time of the original proceedings; the lack
of discovery of the
new fact must not have been through the lack of due
diligence on the part of the moving party; and it must be shown that the new
fact could have been a decisive factor in reaching the original decision.


  1. This
    Appeals Chamber considers that the possibility to seek review of a previous
    decision when the circumstances have changed is broadly
    admitted at the
    international level. Beyond the jurisprudence of the other sister International
    Tribunals, Article 4, paragraph 2
    of Protocol No. 7 to the European Convention
    for the Protection of Human Rights and Fundamental Freedoms (1950) provides for
    the
    reopening of cases if there is inter alia “evidence of new or
    newly discovered
    facts”.[88]
    Article 14 of the International Covenant on Civil and Political Rights
    (ICCPR)(1966) refers to the discovery of “newly or newly
    discovered
    facts”. The International Law Commission has also considered that such a
    provision was a “necessary guarantee
    against the possibility of factual
    error relating to material not available to the accused and therefore not
    brought to the attention
    of the Court at the time of the initial trial or of any
    appeal.”[89]
    Finally, Article 84(1) of the Rome Statute of the International Criminal Court
    provides for the revision of judgements on the following
    grounds:[90]

“(a) New evidence has been discovered that:


  1. Was
    not available at the time of trial, and such unavailability was not wholly or
    partially attributable to the party making application;
    and
  2. Is
    sufficiently important that had it been proved at trial it would have been
    likely to have resulted in a different verdict;

(b) It has been newly discovered that decisive evidence, taken into
account at trial and upon which the conviction depends, was false,
forged or
falsified;


(c) One or more of the judges who participated in conviction or confirmation
of the charges has committed, in that case, an act of
serious misconduct or
serious breach of duty of sufficient gravity to justify the removal if that
judge or those judges from office
under Article 46.”


  1. The
    facility to seek review on the ground of a change of circumstances has also been
    admitted for interlocutory decisions rendered
    in the course of
    trials.[91]
  2. The
    Appeals Chamber therefore finds that an application before Trial chamber II
    seeking review of the Decision to withdraw Counsel
    based on a change of
    circumstances may have been admissible and would not be per se
    “frivolous and vexatious”. This finding is without prejudice of the
    fulfilment of the above mentioned criteria for review
    by the applicants, which
    would have been to be determined by the Trial Chamber. The Appeals Chamber
    notes that such an application
    should have been filed by the applicants to the
    previous decision which review was sought, namely the withdrawn Counsel
    themselves,
    and not, as in the present case, their clients. However, in the
    view of the Appeals Chamber, this error on behalf of the Applicants
    and their
    Counsel is not sufficient to conclude that the Motion to re-assign, although
    ill-conceived, was “frivolous and vexatious”.
  3. As
    a conclusion on the Fourth and Fifth Grounds, the Appeals Chamber finds that the
    applicants successfully demonstrated that the
    Trial Chamber erred in fact by
    stating that the Motion to re-assign had no clear legal basis and that the
    Motion was indeed based
    on Article 17(4)(C) and (D) of the Statute, Rule 54 and
    the Inherent Jurisdiction of the Court. The present finding by the Appeals
    Chamber does not imply any judgement on the relevance of these legal bases.
    However, the applicants failed to demonstrate that the
    Trial Chamber’s
    findings that the application to withdraw was not sincere and that the Motion to
    re-assign was indeed an application
    to reverse the Decision to withdraw could
    not have been reached by a reasonable trier of fact or were wholly erroneous.
    Nevertheless,
    the Appeals Chamber finds that Trial Chamber II erred in law by
    considering that the fact that the Motion to re-assign was an application
    to
    reverse the Decision to withdraw did make this application “frivolous and
    vexatious”.

5. Defence Sixth Ground of Appeal

  1. The
    Defence submits that the Trial chamber erred in law and/or in fact by
    considering that former Lead Counsel were not eligible to
    be re-appointed since
    they were no longer on the list of qualified Counsel required to be kept under
    Rule 45(C), when their removal
    was effected by the Registrar when the Motion to
    Re-Appoint was pending judicial consideration by the Trial Chamber. Accordingly,
    the Applicants pray the Appeals Chamber to declare the Registrar’s
    decision to remove Counsel from the list null and void as
    ultra vires, to
    declare that the Trial Chamber erred in law by considering that it had no
    jurisdiction to review this decision, and to review
    it.

(a) The Acting Registrar’s Decision to remove Counsel from the List of
Qualified Counsel

  1. The
    decision of the Registrar to withdraw Counsel from the List of qualified Counsel
    referred to at paragraph 51 of the Impugned Decision
    results from several
    correspondences attached to the submission of the Parties before the Trial
    Chamber. On 25 May 2005, Mr. Robert
    Kirkwood, the then Deputy Registrar, wrote
    in his capacity of Acting Registrar to Ms. Elizabeth Nahamya, Acting Head of the
    Defence
    Office:[92]

One of the main considerations for allowing Counsel to withdraw
from the trial was the ongoing security concerns that counsel had
for
themselves. To date this matter has not been resolved nor have the counsel
sought to have these matters investigated by court
security. They represent an
ongoing security issue for the court and at this point of time are not suitable
to be considered as counsel
in any trial before the court.


Any request for an investigation into these security issues may take some
months to satisfactorily resolve. In these circumstances
it is not appropriate
to have these counsel on the list of qualified counsel. You are therefore
directed to immediately remove Kevin
Metzger and Wilbert Harris from the list of
qualified counsel who may be assigned as counsel.


  1. On
    26 May 2005, Ms. Elizabeth Nahamya responded to Mr. Robert
    Kirkwood:[93]

Regarding your order to me to withdraw Mr. Kevin Metzger and Mr.
Wilbert Harris from the List of Qualified Counsel, the Trial Chamber’s
Order dated 12 May 2005 and the Decision rendering its reasons issued
subsequently on 20 May 2005, did not make a judicial Order
instructing the
removal of Kevin Metzger and Wilbert Harris. Thus absent a judicial Order to
that effect or absent any adjudicated
disciplinary findings against Counsel, I
cannot remove them from the List. The matter is again a judicial matter that
must be decided
by Lawyers and Judges.


  1. On
    the same day at 5.33 p.m., Mr Kirkwood sent an e-mail to Ms. Elizabeth Nahamya
    in which he
    wrote:[94]

Your concerns are duly noted and should judicial review overturn my
order it is something I am prepared to accept full responsibility
for. The order
stands as of the date that it was issued to you and therefore Messrs. Harris and
Metzger are no longer eligible for
consideration.


(b) Jurisdiction of the Appeals Chamber to Review the Decision of the Acting
Registrar

  1. The
    Appeals Chamber notes the caution taken by Trial Chamber II in the Impugned
    Decision which limits itself to the finding that “it
    appears that the said
    Counsel are not eligible to be reappointed since they are no longer on the list
    of qualified Counsel required
    to be kept under Rule
    45(C)”.[95] It
    is true that the Trial Chamber was not seized, as the Appeals Chamber is, of a
    request to judicially review the decision of the
    Registrar to remove the Counsel
    from the List of Qualified Counsel. The reason of this is that the Registrar
    took his decision to
    remove them from the List on 26 May 2005, when the Motion
    to re-assign was filed on 24 May 2005.
  2. Now
    the Applicants seek for the first time in this pending appeal a judicial review
    of the Registrar’s decision by the Appeals
    Chamber. It may be argued that
    such a new relief cannot be sought for the first time in appeal and shall
    therefore be denied. But
    the Appeals Chamber notes that the Parties did not
    raise any objection as regards this new request, that the Appellants had no
    knowledge,
    when they filed their Motion to re-assign before the Trial Chamber,
    of that decision of the Registrar which was taken while the matter
    was pending
    before the Trial Chamber, and that they tried to challenge this decision before
    the Trial Chamber in a public hearing
    on the Motion, which was refused by the
    Trial Chamber. The Appeals Chamber therefore accepts to consider this new
    request.
  3. The
    Appeals Chamber refers to its above finding on the inherent jurisdiction of
    Chambers to judicially review administrative decisions
    affecting the rights of
    the Accused. The Appeals Chamber restates that such inherent jurisdiction may be
    exercised only in the silence
    of the regulations applicable to the matter.
    [96]
  4. The
    Appeals Chamber notes that Article 13(F) of the Directive provides:

Where the Principal Defender refuses to place the name of the
applicant Counsel on the List of Qualified Counsel, or removes the name
of
Counsel from the List of Qualified Counsel, the concerned Counsel may seek
review, by the President, of the Principal Defender’s
refusal. An
application for review shall be in writing and the Principal Defender shall be
given the opportunity to respond to it
in writing.


  1. For
    the reasons mentioned earlier as regards the Registrar’s decision not to
    re-assign Counsel, the Appeals Chamber considers
    that where the Registrar uses
    the powers he keeps in concurrence with the Principal Defender, he shall do so
    in the same conditions
    as the Principal Defender would. In particular, where the
    regulations provide that the Principal Defender’s decision may be
    reviewed, the concurrent decision of the Registrar is submitted to the same
    condition.
  2. Therefore,
    the Appeals Chamber considers that, pursuant to Article 13(F) of the Directive,
    the review of the decision to remove a
    Counsel from the List of Qualified
    Counsel, either taken by the Principal Defender or the Registrar, falls within
    the exclusive province
    of the President of the Special Court.
  3. The
    Appeals Chamber therefore concludes that it has no jurisdiction to review the
    decision of the Registrar to remove Counsel from
    the List of Qualified Counsel
    and denies the ground and the related relief.

6. Defence Seventh Ground of Appeal

  1. In
    their seventh and last ground of appeal, the Appellants challenge the Trial
    Chamber’s ruling, in the Impugned
    Decision[97], that
    there were no grounds for submitting that any Judge recuse himself/herself from
    the deliberation on the Motion to re-assign.
    In this respect, the Appellants
    rely on Justice Sebutinde’s observations, in her dissenting opinion.
  2. The
    Appeals Chamber refers to its finding under the First Preliminary Issue raised
    in the current decision that, pursuant to article
    18 of the Statute, the
    concurring/dissenting opinions that are not properly “appended” to
    the decision they relate to
    and filed together with it are not admissible and
    shall be disregarded. Justice Sebutinde’s Dissenting Opinion having been
    filed after the Impugned Decision and separately, the Appeals Chamber considers
    that it is not admissible and accordingly disregards
    it.
  3. As
    regards the oral consultation that was admittedly made by the Registrar to the
    Trial Chamber, the Appeals Chamber observes that
    the Registrar justifies its
    oral consultation of the Trial Chamber on the ground of Rule
    33(B).[98] Rule 33(B)
    provides:

The Registrar, in the execution of his functions, may make oral or
written representations to Chambers on any issue arising in the
context of a
specific case which affects or may affect the discharge of such functions,
including that of implementing judicial decisions,
with notice to the parties
where necessary.


  1. The
    Appeals Chamber recognizes that in the exercise of its administrative functions
    and servicing of the Special Court pursuant to
    Article 16(1) of the Statute, the
    Registrar may need to confer with the Chambers from time to time. These
    consultations do not necessarily
    need to be made inter partes, namely in
    the presence of the Parties to the case. Rule 33(B) specifically provides that
    such notice to the Parties shall be made
    only “where necessary”.
    Such necessity may arise, in particular, where the interests of the Accused are
    concerned.
  2. The
    Appeals Chamber notes the Defence Office’s submission that “contrary
    to Rule 33, the [Registrar] did not notify the
    Accused nor their Counsel about
    his consultation with the Trial Chamber yet the matter at hand was very crucial
    to their
    rights”[99]. The
    Appeals Chamber agrees that, would this consultation have been crucial to the
    rights of the Accused, the Registrar should have
    notified the Parties pursuant
    to Rule 33(B).
  3. But
    the Appeals Chamber finds that the oral consultation between the Registrar and
    the Trial Chamber was apparently limited to the
    re-confirmation of the Oral
    Decision to withdraw Counsel, which was rendered on 12 May 2005 and confirmed on
    16 May 2005 and, in
    particular, the meaning of the consequential order to
    appoint another Counsel to each Accused pursuant to Rule 45(E). In those
    circumstances, the Appeals Chamber does not agree that this consultation,
    which
    appears to have been only motivated by the Defence Office’s insistence to
    re-appoint the same Counsel in contravention with the Trial
    Chamber’s express and repeated order to appoint another Counsel,
    was crucial to the rights of the Accused. The Appeals Chamber therefore
    concludes that there was no necessity to notify
    this consultation to the Parties
    pursuant to Rule 33(B).
  4. For
    the foregoing reasons, the Appeals Chamber concludes that the Appellants failed
    to demonstrate that the Trial Chamber erred in
    law and/or in fact by stating in
    the Impugned Decision that there were no grounds for submitting that any Judge
    should have recused
    himself or herself. This ground is consequently dismissed in
    its entirety.

FOR THESE REASONS
THE APPEALS CHAMBER


DECIDES that the Defence application for leave to appeal was filed
out-of-time,


DECIDES that the Defence Notice of Appeal and Submissions in Appeal
were filed out-of-time,


NEVERTHELESS DECIDES to determine on the merits of the Appeal,


DECIDES that the Defence Office’s additional ground raised in
Section IV, Sub-section 2 of the Defence Office’s Response is
inadmissible;


DENIES the Defence’s request in Reply not to consider Justice
Doherty’s Comment appended to the decision granting leave to appeal;


DENIES the Registrar’s Additional Motion in its entirety;


PARTIALLY GRANTS the Appeal;


FINDS that the Trial Chamber had jurisdiction to review the
Registrar’s decision not to re-assign Counsel Metzger and Harris,
BUT FINDS that the Trial Chamber correctly exercised its
jurisdiction by dismissing the request to declare that decision null and
void;


FINDS that the Trial Chamber erred in fact by stating that the Motion
to re-assign had no clear legal basis;


FINDS that the Trial Chamber erred in law by considering that the fact
that the Motion to re-assign was an application to reverse the Decision
to
withdraw did make this application “frivolous and vexatious”;


DISMISSES the Appeal on all other aspects.


Justice Ayoola, Justice King and Justice Robertson are appending their
Separate and Concurring Opinions to the present Decision.


Done at Freetown this day 8th of December 2005



________________
Justice Raja Fernando
Presiding Judge,

__________________
Justice Emmanuel Ayoola

___________________
Justice George Gelaga King

__________________
Justice Renate Winter


[Seal of the Special Court for Sierra Leone]



[1] Prosecutor v.
Brima, Kamara, Kanu,
T. 12 May 2005, 2.00 p.m., lines 13-16 (“Oral
Order Permitting
Withdrawal”).
[2]
Decision on the Confidential Application for Withdrawal by Counsel for Brima and
Kamara and on the Request for Further Representation
by Counsel for Kanu, 20 May
2005.
[3] Extremely
Urgent Confidential Joint Motion for the Re-Appointment of Kevin Metzger and
Wilbert Harris as Former Lead Counsel for
Alex Tamba Brima and Brima Bazzy
Kamara, Pursuant to Articles 17(4)(C) and 17(4)(D) of the Statute of the Special
Court for Sierra
Leone and Rule 54 of the Rules of Procedure and Evidence and
the Inherent Jurisdiction of the Court, filed on 24 May 2005 (“Motion
to
Re-Appoint”).
[4]
Prosecutor v. Brima, Case No. SCSL-2003-06-PT, Decision on
Applicant’s Motion Against Denial by the Acting Principal Defender to
Enter a Legal
services Contract for the Assignment of Counsel, 6 May 2004 (the
“6 May 2004 Decision in the Brima
case”).
[5]
ICTR, Prosecutor v. Nyiramasuhuko et al., Case No. 98-42-AR73.2, Decision
on Pauline Nyiramasuhuko’s Appeal on the Admissibility of Evidence, 4
October 2004, para.
4-5.
[6]
Prosecutor v. Norman, Kondewa, Fofana, Case No. SCSL-2004-14-A, Decision
on Amendment of the Consolidated Indictment, 16 May 2005, para. 43.

[7] Rules 73(B) of
the SCSL Rules.
[8]
Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-14-T, Brima-Kanu
Defence Application for Leave to Appeal from Decision on the Extremely Urgent
Confidential Joint
Motion for the Re-Appointment of Kevin Metzger and Wilbert
Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara and
Decision
on Cross Motion by Deputy Principal Defender to Trial Chamber II for
Clarification of its Oral Order of 12 May 2005, 14
July
2005.
[9]
Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-14-T, Dissenting
Opinion of the Hon. Justice Julia Sebutinde from the Majority Decision on the
Extremely Urgent
Confidential Joint Motion for the Re-Appointment of Kevin
Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima
Bazzy
Kamara and Decision on Cross Motion by Deputy Principal Defender to Trial
Chamber II for Clarification of its Oral Order of
12 May 2005”, 11 July
2005 (“Justice Sebutinde’s Opinion Dissenting from the Impugned
Decision”).
[10]
Prosecutor v. Norman, Fofana, Kondewa, Case No. SCSL-2004-14-A, Decision
on Amendment of the Consolidated Indictment, 16 May 2005, para. 45;
Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-16-A, Decision on
Defence Appeal Motion Pursuant to Rule 77 (J) on Both the Imposition of Interim
Measures and
an Order Pursuant to Rule 77(C)(iii), 23 June 2005, para.
28.
[11] Prosecutor
v. Norman, Fofana, Kondewa, Case No. SCSL-2004-14-T, Decision on Prosecution
Application for Leave to Appeal “Decision
on the First Accused’s
Motion for Service and Arraignment on the Consolidated Indictment”, 15
December 2004.
[12]
ICTR, Prosecutor v. Nyiramasuhuko et al., Case No. 98-42-AR73.2, Decision
on Pauline Nyiramasuhuko’s Appeal on the Admissibility of Evidence, 4
October 2004, para.
4-5.
[13] Practice
Direction for Certain Appeals Before the Special Court, 30 September
2004.
[14] Practice
Direction on Filing Documents Before the Special Court for Sierra Leone, 27
February 2003, Amended on 1 June
2004.
[15] Article
10 deals with urgent
measures.
[16]
See Order Designating Judicial Recess, 23 June
2005.
[17] See
below
, Fourth Preliminary
Issue.
[18]
Prosecutor v. Sesay, Kallon, Gbao, Case No. SCSL-2004-15-T, Decision on
Prosecution Request for Leave to Call Additional Witnesses and Disclose
Additional Witness
Statements, 11 February 2005, para.
28.
[19]
Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-16-T, Decision on
Joint defence Motion on Disclosure of All Original Witness Statements, Interview
Notes and
Investigator’s Notes Pursuant to Rule 66 and/or 68, 4 May 2005,
para. 20. See also Prosecutor v. Brima, Kamara, Kanu, Case No.
SCSL-2004-16-T, Decision on Objection to Question Put by Defence in
Cross-Examination of Witness TF1-227, 15 June 2005,
para.
43.
[20]
Prosecutor v. Brima, Kamara, Case No. SCSL-2004-16-T, Decision on the
Extremely Urgent Confidential Joint Motion for the Re-Appointment of Kevin
Metzger and
Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy
Kamara and Decision on Cross-Motion by Deputy Principal Defender
to Trial
Chamber II for Clarification of its Oral Order of 12 May 2005, 9 June 2005,
para. 20.
[21]
Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-16-T, Decision on
Prosecution request for Leave to Call an Additional Witness (Zainab Hawa
Bangura) Pursuant
to Rule 73bis(E), and on Joint Defence Notice to Inform
the Trial Chamber of its Position vis-à-vis the Proposed Expert Witness
(Mrs Bangura)
Pursuant to Rule 94bis, 5 August 2005, para.
27.
[22]
Prosecutor v Norman, Fofana, Kondewa, Case No. SCSL-2004-14-A, Decision
on Prosecution Appeal Against the Trial Chamber’s Decision of 2 August
2004 Refusing Leave
to File an Interlocutory Appeal, 17 January 2005,
para. 24.
[23]
Paragraph 10(C) of the Practice Direction on Certain Appeals (Emphasis
added)
[24] Article
20(1) of the Statute; Rule 106 of the Rules of Procedure and Evidence (Emphasis
added).
[25]
Prosecutor v. Gbao, Case No. SCSL-2004-15-T, Decision on Application for
Leave to Appeal Decision on Application to Withdraw Counsel, 4 August 2004,
para. 54-55,
57.
[26] For an
application of that old Rule by the ICTY Appeals Chamber, see Prosecutor v.
Tadic
, Case No. IT-94-1-A, Appeal Judgement, 15 July 1999, para. 247;
Prosecutor v. Kupreskic, Case No. IT-95-16-A, Appeal Judgement, 23
October 2001, para. 22. Rule 73(B) of the ICTY currently provides:
“Decisions on
all motions are without interlocutory appeal save with
certification by the Trial Chamber, which may grant such certification if
the
decision involves an issue that would significantly affect the fair and
expeditious conduct of the proceedings or the outcome
of the trial, and for
which, in the opinion of the Trial Chamber, an immediate resolution by the
Appeals Chamber may materially advance
the proceedings.(Amended 12 Apr 2001,
amended 23 Apr
2002).
[27] See
also Prosecutor v. Sesay, Case No. SCSL-2004-15-T, Decision on
Defence Motion, 15 July 2004, para. 13 and Prosecutor v. Kallon, Case No.
SCSL-2004-15-T, Decision on Confidential Motion, 11 October 2004, para. 21, on
the nature of “requests” before
the Trial
Chambers.
[28] Rule
111 of the Rules of Procedure and
Evidence.
[29] Rule
113(A) of the Rules of Procedure and
Evidence.
[30] Rule
112 of the Rules of Procedure and
Evidence.
[31]
Supra, Second Preliminary
Issue.
[32]
Supra Third Preliminary
Issue.
[33] See
Attachment C to the Motion for
Reappointment.
[34]
See
Interoffice Memorandum, re: “Re-appointment of Mr. Kevin Metzger
and Wilbert Harris as Lead Counsel”, 17 May 2005, in
Attachment A to the
Defence Office’s
Response.
[35]
See e-mail, re: :Re-assignment of Mr. Metzger and Harris”, 19 May
2005, in Attachment C-1 to the Defence Office’s
Response.
[36]
Article 12(A) of the
Directive.
[37]
Prosecutor v. Brima, Case No. SCSL-2004-16-PT, Decision on
Applicant’s Motion Against Denial by the Acting Principal Defender to
Enter a Legal
Service Contract for the Assignment of Counsel, 6 May 2004, para.
35.
[38] See
ICTR, Prosecutor v. Nzirorera, ICTR-98-44-T, President’s
Decision on Review of the Decision of the Registrar Withdrawing Mr. Andrew
McCartan as Lead Counsel
of the Accused Joseph Nzirorera (President Pillay), 13
May 2002, p. 3, sect. (xi); ICTY, Prosecutor v. Hadzihasanovic et al.,
IT-01-47-PT, Decision on the Prosecution’s Motion for Review of the
Decision of the Registrar to Assign Mr. Rodney Dixon as
Co-Counsel to the
Accused Kubura (TC), 26 March 2002, para. 12-13; ICTY, Prosecutor v. Delalic
et al.
, IT-96-21-PT, Decision of the President on the Prosecutor’s
Motion for the Production of Notes Exchanged Between Zejnil Delalic
and Zdravko
Mucic (President Cassese), 11 November
1996.
[39] ICTR,
Prosecutor v. Ntahobali, ICTR-97-21-T, Decision on Ntahobali’s
Extremely Urgent Motion for the Re-instatement of Suspended Investigator, Mr
Thaddée
Kwitonda (TC), 14 December 2001, para.
17.
[40] ICTR,
Prosecutor v. Ntahobali, ICTR-97-21-T, Decision on the Application by
Arsène Shalom Ntahobali for Review of the Registrar’s Decisions
Pertaining
to the Assignment of an Investigator”(President Pillay), 13
November 2002, para.
4-5.
[41]
Prosecutor v. Brima, Case No. SCSL-2004-16-PT, Decision on
Applicant’s Motion Against Denial by the Acting Principal Defender to
Enter a Legal
Service Contract for the Assignment of Counsel, 6 May 2004, para.
39.
[42] Rule
45(Chapeau) and Article 1(A) of the
Directive.
[43]
Rule 45(A) (Emphasis
added).
[44] Rule
45 (C) and Articles 13 and 23(B)(iii) of the
Directive.
[45]
Article 9(A) and 12(B) of the
Directive.
[46]
Article 9(A)(i) of the
Directive.
[47]
Article 10 of the
Directive.
[48]
Article 11 of the Directive (Emphasis
added).
[49]
Article 1(A), 14 and 16(C) to
(F).
[50] Rule
45(D).
[51] Article
23 (A) of the
Directive.
[52]
Article 24 (A) and (B) of the
Directive.
[53]
Rule 45(E) and Article 23(D) of the Directive. (Emphasis
added).
[54]
Article 16(1) of the Statute and Rule
33(A);
[55] Rule 45
(Chapeau).
[56]
Rule 33(A).
[57]
Rule 45 and Article 1(A) of the
Directive.
[58]
e.g. Rule
26bis.
[59]
Huth v. Clarke (1890) 25 QBD 391. See also the Local Government
Act 1972 s 101(4); and Halsbury’s Laws of England, Administrative
Law, 2. Administrative
Powers.
[60]
Impugned Decision, para.
44.
[61] Defence
Office’s Response, p. 6-7; Registrar’s Response, para. 2,
15.
[62] Article
10(A)(i) of the ICTR Directive on Assignment of Counsel; Article 11(A)(i) of the
ICTY Directive on Assignment of Counsel.
See also the jurisprudence referred to
at para. 45 of the Impugned
Decision.
[63]
Mayzit v. Russia, ECHR (2005), 20 January 2005, para.
66.
[64] See
Prosecutor v. Brima, Kamara, Kanu,
Case No. SCSL-2004-15-T, Transcript of 12
May 2005, p. 2, annexed to the Defence’s
Reply.
[65] See
Prosecutor v. Brima, Kamara, Kanu,
Case No. SCSL-2004-15-T, Transcript of 16
May 2005, p. 2, quoted in Defence Office’s Response, p.
3.
[66] Transcript
of 12 May 2005, p. 2, lines 17-20, annexed to the Defence’s
Reply.
[67] Para.
38 of the Impugned
Decision.
[68]
Prosecutor v. Brima, Case No. SCSL-2004-16-PT, Decision on
Applicant’s Motion Against Denial by the Acting Principal Defender to
Enter a Legal
Service Contract for the Assignment of Counsel, 6 May 2004, para.
78-79.
[69] Para.
37 of the Impugned
Decision.
[70]
Pretto v. Italy (A/71): (1984) 6 E.H.R.R. p.
182.
[71] Para. 52
of the Impugned
Decision.
[72]
Para. 48 of the Impugned
Decision.
[73]
Para. 49 of the Impugned
Decision.
[74]
Para. 50 of the Impugned
Decision.
[75]
Para. 48 of the Impugned
Decision.
[76]
Prosecutor v. Norman, Fofana, Kondewa, Case No. SCSL-2004-14-AR73,
Decision on Amendment of the Consolidated Indictment, 16 May 2005, para.
76.
[77] See
Articles 24(1)(b) and 24(2) of the ICTR Statute; Articles 25(1)(b) and 25(2)
of the ICTY
Statute.
[78]
Prosecutor v. Semanza, ICTR-97-20-A, Judgement, 20 May 2005, para.
8.
[79]
Niyitegeka Appeal Judgement, para. 8; Krstic Appeal Judgement,
para. 40; Krnojelac Appeal Judgement, para. 11-13, 39; Tadic
Appeal Judgement, para. 64; Celebici Appeal Judgement, para. 434;
Aleksovski Appeal Judgement, para. 63; Vasiljevic Appeal
Judgement, para.
8.
[80] See in
particular Rutaganda
Appeal Judgement, para. 18.

[81] Para. 49
of the Impugned
Decision.
[82]
Prosecutor v. Brima, Kamara, Kanu, Case no. SCSL-2004-16-T, Extremely
Urgent Confidential Joint Motion for the Re-appointment of Kevin Metzger and
Wilbert Harris as
Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara,
Pursuant to Articles 17(4)(C) and 17(4)(D) of the Statute of the Special
Court
for Sierra Leone and Rule 54 of the Rules of Procedure and Evidence and the
Inherent Jurisdiction of the Court, 24 May 2005.
(emphasis
added)
[83] Para.
50 of the Impugned
Decision.
[84]
Idem.
[85]
ICTY, Prosecutor v. Tadic, Case No. IT-94-1-A, Decision on
Appellant’s Motion for Extension of the Time-Limit and Admission of
Additional Evidence (AC),
15 October 1998, para.
30.
[86] ICTR,
Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Decision
(Prosecutor’s Request for Review or Reconsideration)”(AC), 31 March
2000, para.
41.
[87] Article
25, Rules 120 and
121.
[88] 22
November 1984, 24 ILM 435 at
436.
[89] Report
of the International Law Commission on the work of its
46th session
, Official Records,
49th session, Supplement Number 10 (A/49/10) at page
28.
[90] Article
84(1) of the Rome statute of the International Criminal
Court.
[91] ICTR,
Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Decision
(Prosecutor’s Request for Review or Reconsideration)”(AC), 31 March
2000, para. 41;
ICTR, Prosecutor v. Ndindiliyimana et al. (“Military
II”)
, Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion for
Reconsideration of the Chamber’s 19 March 2004 Decision on
Disclosure of
Prosecution Materials, 3 November 2004, para. 21; Prosecutor v.
Ndindiliyimana et al. (“Military II”)
, Case No. ICTR-00-56-T,
Decision on Nzuwonemeye’s Motion for Reconsideration of the
Chamber’s Oral Decision of 14 September
2005 on Admissibility of Witness
XXO’s Testimony in the Military I Case in Evidence, 10 October
2005.
[92] See
Attachment 1 to the Registrar’s (First Respondent) Response to the
Motion to
Re-assign.
[93]
See Attachment to the Principal Defender’s Response to the Motion
to Re-assign, pages
8923-8924.
[94]
See Attachment to the Principal Defender’s Response to the Motion
to Re-assign, page
8922.
[95] Para. 51
of the Impugned
Decision.
[96]
Prosecutor v. Norman, Fofana, Kondewa, Case No. SCSL-2004-14-T, Decision
on Prosecution Appeal Against the Trial Chamber’s Decision of 2 August
2004 Refusing Leave
to File an Interlocutory Appeal, 17 January 2005, para.
31-32.
[97] Para.
33 of the Impugned
Decision.
[98]
Para. 59 of the Registrar’s
Response.
[99] Page
20 of the Defence Office’s Response.