Trial Chamber Denies Certification to Appeal Stand-By Counsel

by Kevin Jon Heller

Give the Trial Chamber credit, it has at least has stopped pretending that its decisions make any legal sense whatsoever:

It said on Monday that Karadzic’s appeal request was too vague and premature because at the time of his application, no counsel had been appointed to him.

“Granting the application now, and then potentially again on 1 March, 2010 … would hinder, rather than materially advance the proceedings,” the court said.

It’s true, stand-by counsel has not been appointed to actually represent Dr. Karadzic.  But that has absolutely nothing to do with Dr. Karadzic’s request for certification to appeal, which concerns the Registry’s failure to follow binding Appeals Chamber precedent for selecting stand-by counsel in the first place.  That request is neither vague nor premature — Seselj is clear on the relevant procedure, so unless the Appeals Chamber overrules that decision, new stand-by counsel must be appointed now.  Indeed, it would be in all of the parties’ interest to have new stand-by counsel appointed now, not in March, so that he or she could begin preparing for trial.

It is patently obvious what the Trial Chamber is trying to do.  By refusing, however unjustifiably, to deal with the Registry’s failure to follow Seselj, the Trial Chamber puts the Appeals Chamber in the unenviable position in March of either (1) granting Dr. Karadzic’s appeal and appointing new stand-by counsel whose need to prepare will delay the start of trial even further, or (2) overruling Seselj for no reason other than that it has become inconvenient. I think we all know which choice the Appeals Chamber would make.

Apparently, the Trial Chamber has adopted a new meta-rule for the Karadzic case: no legal argument by the defendant can succeed, no matter how meritorious, if it might hinder the trial. Could it be any clearer that the Completion Strategy is now the Trial Chamber’s only relevant concern?

http://opiniojuris.org/2009/11/23/trial-chamber-denies-certification-to-appeal-stand-by-counsel/

8 Responses

  1. I don’t know about vague, but premature seems like a reasonable argument. Mr. Karadzic is not adversely affected by the decision to appoint standby counsel. Until he is, i.e. when the standby counsel becomes regular counsel, it seems logical to deny him certification to appeal. Is there any legal order where this decision would come out differently?

  2. Martin,

    Respectfully, I don’t understand your argument.  Presumably the point of standy-by counsel is to be ready to represent the interests of Karadzic.  Karadzic is opposed to the appointment of Mr. Harvey and under the applicable precedent cannot just have Mr. Harvey thrust upon him.  Harvey’s suitability to act as “regular counsel” is an entirely different issue. 

  3. @Milan: I’m not sure how I would rule on this matter if I were a (tribunal) judge, but certainly prof. Heller’s post merits some nuance.

    As long as mr. Harvey is only acting as standby counsel, as opposed to any other kind, he isn’t actually doing anything that actually affects mr. Karadzic in any material way. Mr. Karadzic suffers no detriment from having mr. Harvey (or me, or a donkey) as standby counsel. He is suffering no injury in fact, no – to quote Lujan – “concrete, discrernible injury”. This will only change when mr. Harvey starts to do something other than reading and sitting there, for example when he submits a motion on behalf of the defendant.

  4. Martin,

    As an initial matter, Lujan is a U.S. Supreme Court civil case about constitutional standing.  Its relevance to any criminal proceeding, let alone one before an international tribunal, is zero. 

    You are right, of course, that having Harvey just sit there does not hurt Karadzic.  But that misses the point.  The whole purpose of appointing stand-by counsel is to benefit Karadzic.  (I hope we can all agree that Harvey is there to represent Karadzic’s interests and not the court’s.)  The question then becomes whether Karadzic has a right to stand-by counsel of his choice.  Seselj suggests yes and the Registry appears to have already violated this right.  How is premature for Karadzic to point this out now?

  5. @Milan: I assure you that I didn’t mention Lujan as some kind of authority. But the rules of standing, which are about as universal as it gets, albeit with the exception that many countries have of making a constitutional challenge against statutes, have a reason. The US Supreme Court also talks about this in terms of “ripeness”. It’s a matter of judicial modesty, a reluctance to hear cases when this can be avoided. (Others have put it more eloquently, I’m sure.) These rationales apply with equal force to the question here: interlocutory appeal in criminal proceedings. (It turns out that that’s not just Civ.Pro. again. Rules 72 and 73 of the ICTY also use the term.)

    If and when this really becomes an issue, mr. Karadzic will have the opportunity to argue the point, either on interlocutory appeal or on appeal against the final judgement. In the mean time, everyone can continue with their preparations for March, without the distractions of an appeal.

  6. Martin,

    Do you seriously believe that if Harvey were appointed actual counsel in March — when, according to you, the appeal would be “ripe” — the Trial Chamber would then decide that he was not appointed stand-by counsel correctly, dismiss Harvey, allow Dr. K to choose new actual counsel, and give new actual counsel an equal amount of time to prepare that Harvey received?  That is what your argument requires — and it is, with respect, a ridiculous assumption. And even if the TC would be willing to do so, your position means that the trial would be delayed another four months, the length of the time the TC believes (wrongly) is necessary for new counsel to adequately prepare for trial. So it is obviously in everyone’s interest to resolve the issue now.

  7. It’s true, stand-by counsel has not been appointed to actually represent Dr. Karadzic.  But that has absolutely nothing to do with Dr. Karadzic’s request for certification to appeal, which concerns the Registry’s failure to follow binding Appeals Chamber precedent for selecting stand-by counsel in the first place.  That request is neither vague nor premature —

    Although I applaud your zeal, Kevin, I have to disagree with the way you have framed the question and the conclusions you draw. I have just had a chance to review the accused’s actual application, the Prosecution’s response, and the Trial Chamber’s decision (which I would suggest, by the way, might make for better links on the blog than news stories). And it seems rather clear to me that the manner in which the Registry implemented the Trial Chamber’s order to appoint standby counsel is NOT the issue for which certification to appeal was requested by the accused. 

    The application for certification was filed on Nov. 12. Standby counsel was not even appointed by the Registry until Nov. 19. To be clear, the Registry’s submission appointing standby counsel notes that its representatives met with the accused, facilitated meetings with counsel on the list it provided, and that the accused would not indicate a preference (I’m not discounting here your arguments regarding that being an innapropriately short list – that’s a completely separate issue). And it may well be that this process all ocurred in the seven days between the Trial Chamber’s order to the Registry to appoint standby counsel on Nov. 5, and the accused’s filing of his request for certification on Nov. 12, so that the accused was aware of the “Seselj problem” before he filed the certification request.

    If he was not aware of the “violation” when he filed, then it clearly could not have formed any part of his certification request. But assuming arguendo that he was aware, I am even more surprised that the application utterly fails to raise this as an issue appropriately.

    I would go farther than either the Trial Chamber or the Prosecution in its response. The application is not just vague. It utterly fails to raise the issue that you say it’s all about. Nowhere in the application is the Registry’s actions in presenting a short list even mentioned. What is stated in the application (in para. 9) is the following:

    “It is well established that an application for certification to appeal is not concerned with the merits of the impugned decision, but only with whether the criteria for an interlocutory appeal is satisfied. However, Dr. Karadzic cannot help but note that the Trial Chamber’s decision is flawed in several respects, including failing to support its conclusion, seemingly picking out of thin air, that a 3 1/2 month period would be an adequate time for standby counsel to be prepared for trial in a case of this magnitude and complexicty, and in its failure to direct the Registrar to provide him with the Rule 44 list from which he can select the standby counsel as required by Appeals Chamber jurisprudence.” (italics supplied)

    Para. 10 then states: “These errors enhance the need for certification to appeal in this case.”

    The problem is that in the first 8 paragraphs of the application, the only discernable issue is the appointment of standby counsel, as such. And the accused’s only support for asserting that the strict requirements of Rule 73(B) are met in this instance are decisions in Milosevic and Seselj that were predicated on the fact that counsel had actually been imposed.

    So, the accused requests certification to appeal, stating that Rule 73(B) is satisfied when the issue is imposition of counsel. He then concedes that the certification test is not concerned with the merits of the impugned decision. Having admitted this, he then proceeds to point out errors anyway. And the only error he identifies with respect to the procedure is not the Registry’s failure (as you say above) but the Trial Chamber’s failure to direct the Registry to provide him with the Rule 44 list.

    In its decision, the Trial Chamber notes (para. 7): “As for the claim that the Accused should have been provided with the list of lawyers, again, the Chamber does not see this as an issue that meets the certification test. The Chamber’s Decision to instruct the Registrar to appoint counsel is separate from the procedure followed by the Registrar in doing so.”

    And here, in my view, the Trial Chamber is correct on both points. Conspicuously absent is anything in the application that even attempts to relate this particular “failure” of the Trial Chamber to the requirements of Rule 73(B). I can’t see any insidious “meta-rule” at play in this decision from the Chamber, as you suggest above. In my view, the accused simply did not ask for what you are saying he requested. Even if what you are saying he requested could be teased or tortured out of the application, he certainly didn’t demonstrate that the requirements of Rule 73(B) were met on that issue. He did not even try.

    Whether you like Rule 73(B) or not (and I, personally, do not), it is the Rule. Perhaps the accused is not to be faulted for the inadequacy of the application; Rule 73(B) can be tricky. And, to be fair, I have seen such applications filed by counsel which were no more adequate. But, as has been so persistently pointed out time and again, representing oneself is the accused’s choice. As is living with the consequences of that choice; which sometimes includes not getting the relief one might desire, becuase one has not sought it correctly.

  8. Do you seriously believe that if Harvey were appointed actual counsel in March — when, according to you, the appeal would be “ripe” — the Trial Chamber would then decide that he was not appointed stand-by counsel correctly, dismiss Harvey, allow Dr. K to choose new actual counsel, and give new actual counsel an equal amount of time to prepare that Harvey received?

    No, I think that in those circumstances the Trial Chamber would still think it did the right thing. (I should certainly hope so.) I just think that at that point, the request for certification would no longer be “premature”, i.e. I’d expect the Trial Chamber to certify at that point. The issue would be (nearly) unavoidable, and it would be appropriate for the Appeals Chamber to adress it.

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