When Is a Trial Not a Trial? When the Registry Says So

by Kevin Jon Heller

Another day, another attempt by the Registry to undermine the fairness of Dr. Karadzic’s trial. Rule 3.3 of the Registry’s Remuneration Scheme for Persons Assisting Indigent Self-Represented Accused provides that a self-representing defendant’s legal team is entitled to be paid for “a maximum of 150 out-of-court preparation hours… per month for the duration of the trial.”  Dr. Karadzic’s legal team thus expects to be paid for the approximately 600 hours it will spend on trial preparation between October 27, when the trial began, and March 1.  After all, it’s obvious that trial has begun: the prosecution has given its opening statement; both the Trial Chamber and the prosecution have announced that trial has commenced; and the Registrar himself has directed that all new pleadings be labeled “T” (for “trial”) instead of “PT” (for “pre-trial”).  No problem, right?

Wrong.  The Registry’s Office of Legal Aid and Detention has unilaterally determined that, despite the above, the trial has not actually started and thus Dr. Karadzic’s defence team is not entitled to be paid for the 600 hours.  And it has also refused to pay for a significant portion of the defence team’s pre-trial work — nearly half — which means that the 600 hours cannot be paid as pre-trial work, either.  The upshot: according to the Registry, the defence team is expected to work for free between now and March 1.

This decision is, quite simply, a joke.  Recall that, because the Registry insists that highly-qualified legal associates cannot be paid more than support staff such as translators and secretaries, Dr. Karadzic’s legal associates are paid a maximum of 25 euros/hour.  So we are talking literally 15,000 euros in fees.  That money means nothing to the Tribunal, which has happily accepted billions of dollars in funding from the UN, but it is obviously of critical importance to the defence team’s ability to help Dr. Karadzic prepare for trial.

I’ll say it again: the Registry could not care less about whether Dr. Karadzic receives a fair trial.  If it can help the prosecution secure a conviction by crippling Dr. Karadzic’s defence team, it is more than happy to do so.

http://opiniojuris.org/2009/11/11/when-is-a-trial-not-a-trial-when-the-registry-says-so/

13 Responses

  1. http://www.youtube.com/watch?v=b2eO2q-Qhag

    Once upon a time Seselj had a way of dealing with Hans Holtius… Karadzic should fit into that story nicely

  2. For once, I will have to agree with you. While the Registry is correct that the trial has not started (in large part due to the efforts of you and your client), I do not see any requirement that it be started in order for the payment to begin, particularly considering it is meant for “preparation.”

    Now I might go into shock on the issue.

  3. So I was dreaming when I heard the prosecution make its opening statement?

  4. Another day, another attempt by the Registry to undermine the fairness of Dr. Karadzic’s trial.

    I’ll say it again: the Registry could not care less about whether Dr. Karadzic receives a fair trial.  If it can help the prosecution secure a conviction by crippling Dr. Karadzic’s defence team, it is more than happy to do so.

    Kevin, with what you explain above between the framing pieces, it is certainly arguable that the effects of the Registry’s decision are as you describe. Your words, however, clearly express the opinion that the Registry is acting in extreme bad faith in this case. Do you really believe that the Registry is intentionally looking for ways to “undermine” a fair trial, cripple the defence, and help the prosecution convict? That its decision-making paradigm actually asks “how can we hurt the accused today?”

    If so, I would be interested in hearing whether you believe this is personal to this case, or whether it is an animus towards all accused. Is it something you have deduced from the cumulative record of decisions and actions? Is it something you attribute to the entire Registry, or just to OLAD?

    I’m not commenting on whether you are right or wrong. I just want to hear your thoughts. 

  5. So I was dreaming when I heard the prosecution make its opening statement?

    It was all a mirage!

  6. BDT,

    I think it is a bit of both.  OLAD has always been hostile to self-representing defendants, sometimes with justification (obviously).  But I think the profile of this case and the pressures of the completion strategy have led it to be particularly hostile toward Dr. K.

  7. Kevin Jon Heller:

    No, but again, since you were able to secure a postponement, you might as well have. Unless the ICTY is going to not rephrase the case after a recess (possible but not likely), you might as well have. And even if that is not the case, I still cannot see how that would alter how payment is dished out.

    Bottom line: it was uncalled for.

  8. While I understand Mr. Taylor’s skepticism on whether Mr. Heller has an unbiased view, some of the actions of the court have been… rather questionable (See the prior posts on the subject, including one where they cite his own blog post against him)

    One gets the impression that the court sees the case as a rather foregone conclusion and is more interested in making sure it doesn’t become a circus than a genuine commitment to legal due process.  I’m sympathetic to that viewpoint, but legally, that’s not what the court is there for.

  9. I think it is a bit of both.  OLAD has always been hostile to self-representing defendants, sometimes with justification (obviously).  But I think the profile of this case and the pressures of the completion strategy have led it to be particularly hostile toward Dr. K.

    So do past acts by different individuals in different cases matter when it comes to establishing bad faith or not?

  10. On the very narrow point,  Martin, why not? If the point is to argue an institutional bias (as indeed I take it to be), this could only be represented by either, (best evidence) documents or testimonial statements evidencing such a bias, or (most common case) the cumulative actions of various individuals representing the institution.

    On the broader point, I don’t know enough to comment on the OLAD’s role, but it would seem appropriate for defence counsel to be paid.

  11. @[insert here] delenda is: I know, I was just commenting tongue in cheek.

    As for the general point, I’m sure defense counsel would be paid, if Karadzic actually had defense counsel. Since he doesn’t, I don’t see why people like prof. Heller should be paid as if they were defense counsel.

  12. Martin,

    As I have pointed out numerous times on this blog, I am not receiving a penny for my services.

  13. The decision is – obviously – aimed at weakening the right to self-representation. And it certainly does reach that goal.

    However, the right to self-represantation does not require the accused to be a legal expert, a lawyer. But this is exactly what the decision presupposes.

    Even a self-representing accused needs counsel. which he or she can only get, if they get paid as such. Since he or she won´t, the accused has no other choice than not to represent himself any longer and leave his or her defense to someone else.

    That´s the rationale of the decision, in my view.

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