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Counsel must continue to represent Barayagwiza diligently

Trial Chamber I of the International Criminal Tribunal for Rwanda (ICTR) has denied the motion for withdrawal from the proceedings submitted by the lawyers acting for Jean-Bosco Barayagwiza.

When the trial of Barayagwiza and his co-accused in the “Media case” opened on Monday 23 October he refused to attend the hearings claiming that the Tribunal was incapable of giving him a fair trial. He also instructed his lawyers, appointed for him by the Tribunal, not to attend hearings but otherwise to continue to represent him. However on 25 October the Trial Chamber refused to allow the lawyers to withdraw from the hearing.

The lawyers, Carmelle Marchessault of the Quebec Bar and David Danielson of the Bar of Washington State, claimed that they were thus put in an impossible position and they applied to be released from the case.

Dealing first with the absence of Barayagwiza from his trial, the Trial Chamber, composed of Judge Navanethem Pillay (South Africa, President), Judge Erik Møse (Norway) and Judge Asoka de Zoysa Gunawardana (Sri Lanka) held that, in circumstances “where the accused has been duly informed of his ongoing trial, neither the Statute nor human rights law prevent the case against him from proceeding in his absence.”

The Chamber then found that the Rules of the Tribunal and its Code of Professional Conduct for Defence Counsel indicated that Counsel were under an obligation to mount an active defence in the best interest of the accused. The Chamber also noted that Counsel is assigned, not appointed. This not only entails obligations towards the client but also implies that Counsel represents the interest of the Tribunal to ensure that the accused receives a fair trial.

In the present case, the Chamber observed, Barayagwiza was boycotting the UN Tribunal and had chosen both to be absent from the trial and to give no instructions as to how his legal representation should proceed. In such a situation his lawyers could not simply abide by his “instruction” not to defend him, which should be seen as an attempt to obstruct judicial proceedings.

Judge Gunawardana delivered a separate, concurring Opinion.

For information only - Not an official document

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