Restrictions

Notion(s) Filing Case
Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.3)

The Appeals chamber considered that, before restricting the accused’s right to self-representation, the Trial Chamber must issue an explicit warning specifically directed to the accused in the form of an oral or written statement. It held:

a warning with regard to possible assignment of counsel needs to be explicit, in the form of an oral or written statement to an accused explaining the disruptive behaviour and that, if it persists, the consequence will be restriction on the accused’s right to self-representation.[1]

[1] Decision, para. 26.

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Notion(s) Filing Case
Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.3)

The Appeals Chamber recalled that Article 21(4)(d) of the Statute provides the accused before the International Tribunal with the presumptive right of self representation. However, this right is not absolute and can be restricted where a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.[1] The right of  self-representation can be restricted irrespectively from the actual intention of the accused to obstruct the proceedings.[2] The Appeals Chamber recalled that, for the right to self-representation to be restricted, it is upon the Trial Chamber to decide

“Whether the appropriate circumstances exist and what they are is a matter for the Trial Chamber to determine on a case by case basis when considering the particular facts of a case as a whole.”[3]

In view of this principle, the Appeals Chamber affirmed that the Trial Chamber, in order to assign a Counsel to an accused who chose to self-represent himself, did not have to find that the accused’s behaviour the Trial Chamber had been “extremely disruptive to the point of rendering continuation of the proceedings practically impossible” but that “[a]ll that the Trial Chamber was required to do was find that appropriate circumstances, rising to the level of substantial and persistent obstruction to the proper and expeditious conduct of the trial exist, thereby warranting restriction of Šešelj’s right to self-representation.”[4]

[1] Decision, para. 8. The principle was first established in Milošević, Decision on Defence Counsel, paras 11-13.

[2] Milošević Decision on Defence Counsel ,para. 14.

[3] Decision, para. 20. In affirming this principle, the Appeals Chamber explicitly recalled Prosecutor v. Goiko Janković & Radovan Stanković, Case No. IT-96-23/2-PT, Decision Following Registrar’s Notification of Radovan Stanković’s Request for Self-Representation, 19 August 2005, para.10.

[4] Decision, para. 21.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.3)

The Trial Chamber, in the Impugned Decision[1], held that to restrict the right to self-representation during the pre-trial stage, the accused’s behaviour should provide, when considered as a whole,

 a strong indication that self-representation may substantially and persistently obstruct the proper and expeditious conduct of the proceedings.[2]

The Appeals Chamber agreed with the aforementioned approach adopted by the Trial Chamber, save for use of the word “may”, and held that the word “would” is more appropriate

as a Trial Chamber should have a high degree of certainty before exceptionally placing a restriction on the right to self-representation pre-emptively at the pre-trial stage before an accused has had the opportunity to conduct his own defence at trial.[3]

[1] Prosecutor v. Vojislav Šešelj, Case No. IT-06-67-PT, Decision on Assignment of Counsel (“Impugned Decision”), 21 August 2006, para. 14

[2] Impugned Decision, paras 74 and 79.

[3] Decision, para. 28.

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Notion(s) Filing Case
Decision on Amici Curiae Appeal - 20.01.2004 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.6)

19. There is no doubt that, by choosing to conduct his own defence, the Accused deprived himself of resources a well-equipped legal defence team could have provided. A defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel. The legal system’s respect for a defendant’s decision to forgo assistance of counsel must be reciprocated by the acceptance of responsibility for the disadvantages this choice may bring.[1] Where an accused elects self-representation, the concerns about the fairness of the proceedings are, of course, heightened, and a Trial Chamber must be particularly attentive to its duty of ensuring that the trial be fair.

[1] This principle is firmly enshrined in jurisdictions which recognize a defendant’s right to self-representation. See, e.g., Regina v. Walton, [2001] E.W.C.A. Crim. 1771 (C.A.), para. 50 (“[T]he right to defend oneself is acknowledged by the E[uropean] C[onvention] on H[uman] R[ights] Article 6(3)C. The exercise of that right may bring advantages and disadvantages. If a man chooses to exercise that right, whilst he may benefit from the advantages, he cannot pray in aid the ordinary and anticipated disadvantages of his choice in support of the argument that there was inequality of arms.”); Martinez v. Court of Appeal, 528 U.S. 152, 162 (2000) (“the trial judge is under no duty ... to perform any legal ‘chores’ for the [self-representing] defendant that counsel would normally carry out”) (citation omitted); Regina v. Fabrikant, (1995) 67 Q.A.C. 268 (C.A. Que.), para. 80 (“[A]n unrepresented accused enjoys no particular privilege.”); Regina v. Peepetch, 2003 SKCA 76, para 66 (“[A defendant] cannot demand the right to represent himself and at the same time demand the right to effective assistance of counsel. Having decided to represent himself he must live with the consequences and cannot later complain that his conduct of the trial did not reach the level of a competent lawyer.”).

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Decision on Assignment of Counsel - 01.11.2004 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.7)

11. Both the Trial Chamber and the Prosecutor recognize that defendants have a presumptive right to represent themselves before the Tribunal.  It is not hard to see why.  Article 21 of the ICTY Statute, which tracks Article 14 of the International Convention on Civil and Political Rights,[1] recognizes that a defendant is entitled to a basic set of “minimum guarantees, in full equality,” including the right “to defend himself in person or through legal assistance of his own choosing.”[2] This is a straightforward proposition:  given the text’s binary opposition between representation “through legal assistance” and representation “in person,” the Appeals Chamber sees no reasonable way to interpret Article 21 except as a guarantee of the right to self-representation.  Nor should this right be taken lightly.  The drafters of the Statute clearly viewed the right to self-representation as an indispensable cornerstone of justice, placing it on a structural par with defendants’ right to remain silent,[3] to confront the witnesses against them,[4] to a speedy trial,[5] and even to demand a court-appointed attorney if they cannot afford one themselves.[6]  In the words of the United States Supreme Court in Faretta v. California, which was recognized by the Trial Chamber as the classic statement of the right to self-representation,[7] an “unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction,” such that “counsel [becomes] not an assistant, but a master.”[8] Defendants before this Tribunal, then, have the presumptive right to represent themselves notwithstanding a Trial Chamber’s judgment that they would be better off if represented by counsel.

12. While this right to self-representation is indisputable, jurisdictions around the world recognize that it is not categorically inviolable.  In Faretta itself, the United States Supreme Court noted that, since “[t]he right of self-representation is not a license to abuse the dignity of the courtroom,” a trial judge “may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.”[9]  Recognizing this same basic contingency of the right, England,[10] Scotland,[11] Canada,[12] New Zealand,[13] and Australia[14] have all developed the principle that, in order to protect vulnerable witnesses from trauma, courts may severely restrict the right of defendants to represent themselves in sexual assault trials.  Scotland goes so far as to forbid such defendants from conducting any portion of their defenses in person.[15] And while this Appellate Chamber has not previously passed on the question, existing precedent from contemporary war crimes tribunals is unanimous in concluding that the right to self-representation “is a qualified and not an absolute right.”[16]

13. Recognizing that a defendant’s right to represent himself is subject to some limitations, however, does not resolve this case.  It must further be decided whether the right may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.  The Appeals Chamber believes that, under the appropriate circumstances, the Trial Chamber may restrict the right on those grounds.  It is particularly instructive in this regard to consider the parallel statutory right of an accused before the Tribunal “to be tried in his [own] presence”[17] – a right that is found in the very same clause of the ICTY Statute as the right to self-representation.  Notwithstanding the express enunciation of this right in the Statute, Rule 80(B) of the Rules of Procedure and Evidence allows a Trial Chamber to “order the removal of an accused from the courtroom and continue the proceedings in the absence of the accused if the accused has persisted in disruptive conduct.”  If a defendant’s right to be present for his trial – which, to reiterate, is listed in the same string of rights and indeed in the same clause as the right to self-representation – may thus be restricted on the basis of substantial trial disruption, the Appeals Chamber sees no reason to treat the right  to self-representation any differently.

[1] See Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808, 3 May 1993, S/25704, para. 106.

[2] Statute of the International Criminal Tribunal for the former Yugoslavia (hereinafter “ICTY Statute”), Art. 21, §4.

[3] ICTY Statute, Art. 21 §4(g).

[4] ICTY Statute, Art. 21 §4(e)

[5] ICTY Statute, Art. 21 §4(c).

[6] ICTY Statute, Art. 21 §4(d).

[7] Reasons for Assigning Counsel [Reasons for Decision on Assignment of Defence Counsel, 22 September 2004], para. 45.

[8] 422 U.S. 806, 820-821 (1975) (United States Supreme Court).

[9] 422 U.S. 806, 834 n.46 (1975) (United States Supreme Court).

[10] Youth Justice and Criminal Evidence Act (England) 1999, secs. 34-35

[11] Criminal Procedure (Scotland) Act 1995, sec. 288C(1), as amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002

[12] Criminal Code, RS 1985, sec. 486(2.3)

[13] Evidence Act 1908 (NZ), sec. 23F

[14] Crimes Act 1914 (Cth), secs 15YF, 15YG, 15YH; Evidence Act 1906 (Cth), sec. 106G; Criminal Procedure Act 1986 (NSW), sec. 294A; Sexual Offences (Evidence and Procedure) Act 1983 (NT), sec. 5; Evidence Act 1977 (Qld), sec. 21(L)-(S).

[15] Criminal Procedure (Scotland) Act 1995, sec. 288C(1), as amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002.  Civil law jurisdictions, of course, go further still:  as the Trial Chamber noted, defendants often have no choice but to accept representation by counsel in serious criminal cases.  E.g., Article 274 of the French Code of Criminal Procedure; Section 140 of the German Code of Criminal Procedure; Article 294 of the Belgian Code of Criminal Procedure; Article 71(1) of the Yugoslavian Code of Criminal Procedure; Articles 282 and 283 of the Code of Criminal Procedure of the Republic of Korea.

[16] Prosecutor v. Norman, Case No. SCSL-2004-14-T, Decision on the Application of Samuel Hinga Norman for Self Representation under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004, paras. 9, 15 (Special Court for Sierra Leone) (denying defendant’s request to represent himself in significant part because of the “long adjournments” that would be necessary if the request were granted); see also Prosecutor v. Šešelj, Case No. IT-03-67-PT, Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence,” 9 May 2003, para. 20 (recognizing that right to self-representation “is not absolute” and may be restricted on the basis of the Tribunal’s “legitimate interest in ensuring that the trial proceeds in a timely manner without interruptions, adjournments, or disruptions”).

[17] ICTY Statute, Art. 21 §4(d).

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Decision on Assignment of Counsel - 01.11.2004 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.7)

16. The Appeals Chamber parts ways with the Trial Chamber, however, in its assessment of the Order on Modalities.[1]  In spelling out the future working relationship between Milošević and Assigned Counsel, the Order sharply restricts Milošević’s ability to participate in the conduct of his case in any way.  The Order makes his ability to participate at all contingent on a case-by-case, discretionary decision by the Trial Chamber.[2]  It implies that he would only occasionally – “where appropriate” – be permitted to examine witnesses.[3]  And it indicates that, even where he is permitted to examine a witness, he may do so only after Assigned Counsel had already completed their examination.  In every way, then, the Order relegates Milošević to a visibly second-tier role in the trial.

17. These sharp restrictions, unfortunately, were grounded on a fundamental error of law: the Trial Chamber failed to recognize that any restrictions on Milošević’s right to represent himself must be limited to the minimum extent necessary to protect the Tribunal’s interest in assuring a reasonably expeditious trial.  When reviewing restrictions on fundamental rights such as this one, many jurisdictions are guided by some variant of a basic proportionality principle:  any restriction of a fundamental right must be in service of “a sufficiently important objective,” and must “impair the right . . . no more than is necessary to accomplish the objective.”[4] Similarly, while the International Covenant on Civil and Political Rights allows some restriction of certain civil rights where “necessary to protect national security, public order (ordre public), public health or morals, or the rights and freedoms of others,”[5] the United Nations Human Rights Committee has observed that any such restrictions “must conform to the principle of proportionality; . . . they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.”[6]  And the ICTY itself has been guided by a “general principle of proportionality” in assessing defendants’ suitability for provisional release, noting that a restriction on the fundamental right to liberty is acceptable only when it is “(1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target.”[7]

18. The Appeals Chamber considers that a proportionality principle of this sort was clearly called for here.  The excessiveness of the Trial Chamber’s restrictions is apparent for at least three reasons:  (1) the medical reports relied on by the Trial Chamber explicitly rejected the notion that Milošević’s condition is permanent;[8] (2) there was no evidence that Milošević had suffered from any health problems since late July; and (3) Milošević made a vigorous two-day opening statement without interruption or apparent difficulty.  Despite these indications of possible improvement in Milošević’s condition, however, the Trial Chamber failed to impose a carefully calibrated set of restrictions on Milošević’s trial participation. Given the need for proper respect of a right as fundamental as this one, this failure was an improper exercise of the trial court’s discretion.[9]

[1] We are unconvinced by the Prosecution’s contention that the propriety of this Order is not fairly encompassed within the question certified for review.  See Prosecution Motion to Strike Ground of Appeal (3) from Assigned Counsel “Appeal Against the Trial Chamber’s Decision on Assignment of Defence Counsel,” 5 October 2004.  The Trial Chamber’s decision to assign counsel cannot be understood without reference to its explanation of what, practically speaking, that assignment entails; indeed, the Reasons for Assigning Counsel itself reproduces all relevant portions of the Order on Modalities.

[2] Order on Modalities [Order on the Modalities to be Followed by Court Assigned Counsel, 3 September 2004], pp. 2-3.

[3] Order on Modalities, pp. 2-3.

[4] Elloy de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands, and Housing, 1 A.C. 69 (1998) (United Kingdom Privy Council) (striking down a restriction on civil servants’ right to demonstrate) (citing Zimbabwean, South African, and Canadian jurisprudence); see also, e.g., McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003) (United States Supreme Court) (finding that a campaign finance law must not restrict the right to free speech substantially more than the extent necessary to advance the state’s interest in preventing electoral corruption); Chassagnou v. France, 29 E.H.R.R. 615 (2000) (European Court of Human Rights) (holding that only “indisputable imperatives” can justify restrictions on a right protected by the European Convention on Human Rights, and even then only if the restrictions are a “necessary” and “proportionate” means of advancing the state objective) (striking down French law requiring rural landowners to make their land available to hunters); Edmonton Journal v. Alberta, 1989 CarswellAlta 198 (Canadian Supreme Court) (holding that a statute restricting the publication of information about divorce proceedings must impair the right to freedom of expression no more than strictly necessary to protect personal privacy).

[5] International Covenant on Civil and Political Rights, Article 12, para. 3.

[6] Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,  HRI/GEN/1/Rev.6, 12 May 2003, p. 176 (“The application of restrictions in any individual case must . . . meet the test of necessity and the requirements of proportionality.”).

[7] Prosecutor v. Limaj, Case No. IT-03-66-AR65, 31 October 2003, para. 13 (three-judge bench of the Appeals Chamber).

[8] The doctors explicitly concluded that Milošević is not “unfit by any permanent condition,” but rather “has shown himself by the history to be periodically, but now somewhat regularly unfit.”  Hearing, 30 September 2004, T.27029.

[9] The Prosecution proposes that we uphold the entirety of the Trial Chamber’s order on alternate grounds:  specifically, that Milošević practiced a premeditated policy of deliberate obstructionism by engaging in disruptive courtroom behavior as well as by sabotaging his medication regimen to artificially induce periods of poor health.  While intentional obstructionism of this kind, in principle, might well justify the imposition of counsel on an unwilling defendant, the Trial Chamber explicitly declined to make any factual findings on this score.  Opinion Assigning Counsel, para. 67.  It is rarely appropriate for an Appeals Chamber to make the first assessment of complicated, fact-intensive evidence on an interlocutory appeal (particularly as to evidence that turns in part on an in personam assessment of the intangibles of courtroom demeanor), and we decline to do so here.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Decision on Adequate Facilities - 07.05.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.2)

13.     […] The Trial Chamber concluded, relying on the Krajišnik Appeal Decision, that:

[s]hould the Accused lack the ability to present his defence efficiently or effectively because of his lack of knowledge of law and legal procedures, or because of the complexities of the case, the solution envisaged by the Appeals Chamber was not the provision of experienced, high-level professional assistants but “restriction of his right to self representation”.[1]

The Appellant submits that the Krajišnik Appeal Decision did not contemplate that the remedy to an accused’s inability to undertake his own defence without high-level legal support was the restriction of his right to self-representation because the relevant portion of the Krajišnik Appeal Decision cites the Šešelj Appeal Decision which was concerned with the imposition of counsel in a situation of disruptive behaviour rather than a need for legal assistance.[2] Accordingly, the Appellant submits that the imposition of counsel referred to in the Krajišnik Appeal Decision addresses a situation in which “either through disruptive behaviour or continued poor health, [the accused] exhibits conduct which substantially obstructs the conduct of the trial” not a situation of lack of knowledge of the law or legal procedures.[3] However, the Appeals Chamber finds that, read in context, the Krajišnik Appeal Decision was indeed addressing an accused’s ability to conduct his own trial, not a situation of misconduct or ill health. The Krajišnik Appeal Decision reads:

Moreover, the Appeals Chamber considers that where an accused elects to self-represent, he is asserting his ability to conduct his case without legal assistance and thus Tribunal funding for legal aid for him can be presumed to be unnecessary to the conduct of fair trial. To the extent that an accused lacks the ability to conduct his own case and his self-representation is thus “substantially and persistently obstructing the proper and expeditious conduct of his trial”, then the remedy is the restriction of his right to self-representation. To allow an accused to self-represent and yet also receive full legal aid funding from the Tribunal would, as the saying goes, let him have his cake and eat it too.[4]

14. Accordingly the Appeals Chamber finds no error in the Trial Chamber’s interpretation of the Krajišnik Appeal Decision to the effect that where an accused lacks the requisite knowledge of the law or legal procedures to the extent that it will substantially and persistently obstruct the proper and expeditious conduct of the trial, the solution is not the funding of highly experienced legal associates, but rather the curtailment of his right to self-representation.

[1] Impugned Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Accused Motion for Adequate Facilities and Equality of Arms: Legal Associates, 28 January 2009 (“Impugned Decision”)], para. 31, citing Krajišnik Appeal Decision [Prosecutor v. Momčilo Krajišnik, Case No. IT-0039-A, Decision on Krajišnik Request and on Prosecution Motion, 11 September 2007 (“Krajišnik Appeal Decision”)], para. 41.

[2] Appeal [Appeal of the Trial Chamber’s Decision on Adequate Facilities, 5 March 2009 (“Appeal”)], paras 16-17, citing Krajišnik Appeal Decision, para. 41; Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006 (“[ešelj Appeal Decision”), para. 20.

[3] Appeal, para. 17.

[4] Krajišnik Appeal Decision, para. 41, citing [ešelj Appeal Decision, para. 20. 

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Decision on Motion to Vacate Appointment of Counsel - 12.02.2010 KARADŽIĆ Radovan
(IT-95-5/18-AR73.6)

26. The fundamental issue underlying the Appeal is the relation between Article 21(4)(d) of the Statute and the Trial Chamber’s appointment of standby counsel to Karadžić. Article 21(4) of the Statute reads, in relevant part:

In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(d) […] to defend himself in person or through legal assistance of his own choosing […]

By their ordinary meaning, the rights provided for in Article 21(4)(d) of the Statute “stand in binary opposition”.[1] Accordingly, Article 21(4)(d) of the Statute does not provide an accused with the minimum guarantee of both the right to self-represent and the right to counsel of his own choosing; only the right to one or the other. Karadžić has elected to remain self-represented[2] and thus does not enjoy any rights that are derived from choosing to be represented by legal counsel.[3]

27. Karadžić’s contention that he should be accorded the rights of those who choose to be represented by legal counsel because the Trial Chamber has signalled its intention to override his election to self-represent is unpersuasive. The jurisprudence of the Tribunal establishes that the right to self-represent is not absolute and may be subject to certain limitations.[4] A Trial Chamber may restrict the right to self-representation in appropriate circumstances where “a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial”.[5] It is under this rubric of curtailing Karadžić’s right to self-representation that the Trial Chamber issued its Decision on Appointment of Counsel.[6] If the Trial Chamber ultimately decides to assign counsel to represent Karadžić’s interests at trial, it will not be because the Trial Chamber is recognizing a voluntary decision on behalf of Karadžić to cease his self-representation. Instead, it will be because the Trial Chamber has found that Karadžić’s persistent obstructive behaviour has made it necessary, in the interests of justice, to limit his right to self-representation by assigning counsel to represent his interests.

28. […] The text and structure of the Directive, Rules and Article 21 of the Statute confirm that the Directive does not apply to individuals who have chosen to self-represent. The Preamble of the Directive explicitly references Article 21 of the Statute, which encompasses the binary opposition of self-representation and appointment of counsel. In addition, the Directive’s text emphasizes that its focus is on the process of providing “legal assistance to indigent suspects or accused”. It also references Rule 45 of the Rules, which again focuses on the assignment of counsel to indigent suspects and accused. Self-represented individuals, whose ability to pay for counsel is by definition irrelevant, do not fall within its compass. By contrast, assignment of counsel to self-represented individuals is addressed by Rule 45ter of the Rules, which is not within the Directive’s scope.

29. Insofar as the Registrar took guidance from certain provisions of the Directive, his exercise of discretion did not render the Directive’s procedures binding on him with regard to the appointment of standby counsel for Karadžić.[12] As the Trial Chamber correctly noted, “there exists no specific set of guidelines to be followed by the Registrar” in relation to the appointment of counsel to represent the interests of an obstructive self-represented accused.[13] Considering related legal authorities in developing a procedure to select standby counsel, where such procedures were not outlined in any binding manner ex ante, was well within the Registrar’s discretion, and did not render those legal authorities binding.

[1] Krajišnik Decision [Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Krajišnik Request and on Prosecution Motion, 11 September 2007], para. 40 (internal quotation omitted). See also Milošević Decision, para. 11. Cf. Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Scheduling Order for Appeals Hearing and Decision on Hassan Ngeze’s Motion of 24 January 2006, 16 November 2006, p. 3 (addressing Article 20(4)(d) of the Statute of the International Criminal Tribunal for Rwanda, which tracks Article 21(4)(d) of the Statute).

[2] Karadžić was provided the opportunity to choose whether to represent himself or be represented by counsel and chose to represent himself. Status Conference, T. 43, 17 September 2008. Karadžić currently retains and is exercising his right to self-representation. See Decision on Appointment of Counsel [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Appointment of Counsel and Order on Further Trial Proceedings, 5 November 2009], para. 25.

[3] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004, para. 19. Rights Karadžić does not enjoy include, inter alia, the right to communicate with counsel of one’s own choosing guaranteed under Article 21(4)(b) of the Statute.

[4] Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, para. 8, citing Miloševic Decision, paras 12-13.

[5] Milošević Decision, para. 13.

[6] Decision on Appointment of Counsel, paras 21, 25, 28.

[7] Directive [Directive on the Assignment of Defence Counsel, IT/73/Rev. 11, 11 July 2006], p. 4. See also supra, para. 26.

[8] Directive, Article 1(A).

[9] Id.

[10] Rule 45ter of the Rules provides that: “The Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused”.

[11] Article 2 of the Directive defines “Counsel” as “a person representing or eligible to represent a suspect or accused pursuant to Rules 44, 45 and 45 bis of the Rules”. Further evidence that Karadžić’s situation does not fall under the purview of the Directive is found in the Decision on Appointment of Counsel. This decision to order the Registrar to appoint standby counsel was rendered not pursuant to Rule 45 of the Rules and the Directive, but instead pursuant to Rule 54 of the Rules, which allows Trial Chambers to issue various orders related to the preparation and conduct of a trial. See Decision on Appointment of Counsel, para. 28.

[12] Cf. Krajišnik Decision, fn. 100, quoting Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, para. 18 (finding that although Krajišnik was not entitled as of right to amicus curiae counsel, such appointment was warranted under the circumstances).

[13] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on the Accused’s Motion to Vacate Appointment of Richard Harvey, 23 December 2009 (“Impugned Decision”), para. 30. 

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ICTR Statute Article 19(1);
Article 20(4)(d)
ICTY Statute Article 20(1);
Article 21(4)(d)
ICTR Rule Rule 45;
Rule 45 ter
ICTY Rule Rule 45;
Rule 45 ter
Other instruments Directive on the Assignment of Defence Counsel (ICTY).
Notion(s) Filing Case
Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.3)

The Appeals Chamber reaffirmed the validity of the proportionality principle as stated in the Milošević Decision on Defence Counsel.[1] In restricting the accused’s right to self-representation, the Trial Chamber must impose restrictions that are limited to the minimum extent necessary to protect the International Tribunal’s interest in assuring a reasonably expeditious trial.[2]

[1] Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004 (“Milošević Decision on Defence Counsel”).

[2] Decision, para. 48. The principle was first expressed in the Milošević Decision on Defence Counsel,para. 17.

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Notion(s) Filing Case
Order in Relation to the Appeal Hearing - 18.09.2017 ŠEŠELJ Vojislav
(MICT-16-99-A)

Pages 2-3

CONSIDERING that Šešelj has elected to represent himself and that he has the right to self‑representation at the appeal stage;

[…]

CONSIDERING that, in view of Šešelj’s current position not to appear at the appeal hearing, the Appeals Chamber must take appropriate measures to ensure that his interests are represented at the upcoming appeal hearing in order to ensure the fair and expeditious conduct of the proceedings;

CONSIDERING that, prior to restricting Šešelj’s right to self-representation, the Appeals Chamber must issue a warning that is specific in nature;

CONSIDERING that, if [ešelj maintains his intention not to attend the appeal hearing, it will be in the interests of justice to instruct the Registrar pursuant to Rules 46 and 131 of the Rules to assign a standby counsel to represent Šešelj’s interests in the event that Šešelj is not present at the appeal hearing;

CONSIDERING that any restrictions on Šešelj’s right to represent himself must be limited to the minimum extent necessary to protect the Mechanism’s interest in a reasonably expeditious resolution of the appeal before it;

CONSIDERING, therefore, that, in order to preserve Šešelj’s right to self-representation, the mandate of the standby counsel shall be strictly limited to ensuring that Šešelj’s procedural rights at the hearing are protected if he does not attend, and shall not extend to making a response on [ešelj’s behalf on the substance of the Prosecution’s appeal;

[…]

CONSIDERING that Šešelj should be given an opportunity to reconsider his position not to attend the appeal hearing prior to instructing the Registrar to assign standby counsel;[5]

[1] Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, paras. 10-12.

[2] Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006 (“Šešelj Appeal Decision”), paras. 22-25.

[3] See Nahimana et al. Appeal Judgement, para. 109.

[4] See Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, paras. 17, 19.

[5] Šešelj Appeal Decision, paras. 24, 25.

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MICT Statute Article 19(4)(d) MICT Rule Rule 46;
Rule 131
Notion(s) Filing Case
Decision on Assignment of Standby Counsel for the Appeal Hearing - 11.10.2017 ŠEŠELJ Vojislav
(MICT-16-99-A)

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CONSIDERING that Šešelj’s refusal to respond to the Order indicates that he maintains his previously stated position not to participate in any way in the appeal hearing;

CONSIDERING that Šešelj’s position not to participate in the appeal hearing rises to the level of a disruption of the proceedings that would warrant the restriction of his right to self-representation;

CONSIDERING that, pursuant to Rules 46 and 131 of the Rules, the assignment of standby counsel is warranted in the interests of justice to ensure the protection of Šešelj’s rights at the appeal hearing;

[1] See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, paras. 20, 21; Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004 (“Milošević Decision of 1 November 2004”), para. 13.

Download full document
MICT Statute Article 19(4)(d) MICT Rule Rule 46:
Rule 131