24 Nov More on the Denial of Certification to Appeal (Updated)
According to news reports, the Trial Chamber justifies its refusal to certify appeal on the ground that it “considers the indictee’s motion to be unclear, because it is not clear which aspects of the decision he wants to appeal.” In case you haven’t read our motion for yourself, here is what it says in para. 9, specifically citing to Seselj:
Dr. Karadzic cannot help but note that the Trial Chamber’s decision is flawed in several respects, including failing to support its conclusion, seemingly picked out of thin air, that a 3 1/2 month period would be adequate time for stand-by counsel to be prepared for trial in a case of this magnitude and complexity, 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.
Yep, that’s very unclear.
Even more ridiculous is the Trial Chamber’s claim that Dr. Karadzic “wrongly described the issue as ‘imposing’ or ‘assigning’ a counsel… however, in the case, the Chamber has still not imposed a counsel.” Apparently, the Trial Chamber believes that the defence team doesn’t understand the difference between assigning stand-by counsel and appointing actual counsel. That idea seems to be based on the title of Dr. Karadzic’s motion, “Application for certification to appeal decision on appointment of counsel and order on further trial proceedings” — after all, para. 9 of the motion clearly indicates that Dr. Karadzic is challenging the procedure used by the Registry to appoint “standby counsel.” And why does the title of the motion refer to “appointment of counsel” instead of “appointment of stand-by counsel”? Perhaps it’s because the Trial Chamber’s decision instructing the Registry to appoint stand-by counsel is entitled “Decision on Appointment of Counsel and Order on Further Trial Proceedings,” or because the Tribunal has entitled the Registry’s decision appointing Harvey as stand-by counsel “Decision by Registrar [re appointment of counsel].” I guess that means the Trial Chamber doesn’t understand the difference between assigning stand-by counsel and appointing actual counsel either!
The appealed Trial Chamber decision did two things, and two things only: it instructed the Registry to appoint stand-by counsel, and it adjourned the trial until 1 March 2010 to allow stand-by counsel time to prepare. Dr. Karadzic filed a motion requesting certification to appeal the Trial Chamber’s “decision on appointment of counsel and order on further trial proceedings” in which he argued (para. 9) that the Trial Chamber’s instruction to the Registry was inconsistent with binding Appeals Chamber jurisprudence and that the Trial Chamber did not adequately explain its choice of a 1 March 2010 trial date. And now the Trial Chamber has the audacity to claim it cannot figure out what Dr. Karadzic is trying to appeal.
To say that the Trial Chamber has misread the request for certification to appeal is an understatement. And people accuse Dr. Karadzic of being obtuse!
UPDATED: The Tribunal has now made the decision publicly available. You can find it here. It’s revealing that the Trial Chamber claims not to know what Dr. Karadzic wants to appeal, yet has no problem dismissing — almost completely without explanation, as I note in the comments below regarding the Rule 44 issue — the two conclusions that Dr. Karadzic challenged.
Kevin, I won’t repeat my lengthy comment to yesterday’s post on this issue here. But I maintain my view that the certification application simply doesn’t say what the accused and/or the defence team wish it did. Issues of clarity aside, as an exercise in establishing “appealability” under Rule 73(B), para. 9 of the application just doesn’t cut it.
By the way, the Trial Chamber’s decision is available on the Tribunal’s website, here:
http://www.icty.org/case/karadzic/4#tdec
http://www.icty.org/x/cases/karadzic/tdec/en/091123.pdf
Don, Here, in its entirety, is the Trial Chamber’s explanation of why the Registry’s failure to follow the procedure established in Seselj is not appealable: 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 is separate from the procedure followed by the Registrar in doing so. Do you see an argument there? A citation? Anything? Whether the trial is delayed 3 1/2 months to allow stand-by counsel to prepare doesn’t affect the “expeditious conduct” of the trial? And given that the trial would have to be delayed in March for an additional 3 1/2 months to allow new stand-by counsel to prepare if the Appeals Chamber followed its own decision in Seselj, an “immediate resolution” of the issue would not “materially advance the proceedings”? The Trial Chamber’s argument might make sense if it had delayed the trial until March to allow Dr. Karadzic additional time to prepare. In that case, it would be possible to argue, as Martin does, that the actions of the stand-by counsel do not in… Read more »
@prof. Heller: As far as I can see, the argument that I proposed earlier this week is essentially the same as the one the Trial Chamber uses in section 9 of this ruling. As the TC writes, that alone is enough to deny the request for certification.
In the paragraph before, par. 8, the TC discusses the first prong of the test, distinguishing the Milosevic and Seselj on the grounds that there leave to appeal was only given when counsel was actually assigned. What more do you want.
If you were expecting more detailed citation, you may have the ICTY confused with an American court. (Or at least a decision on a request like this with a full judgement.)
The point is: the Trial Chamber is delaying the trial only to allow stand-by counsel to prepare for trial. If this counsel must be replaced by proper counsel, the consequence will be another (considerable!) delay!
An immediate resolution of this Rule 44 issue is inevitable. If not, one can drop the requirement of an “expeditious conduct” right now.
However, judging from past conduct of the Trial Chamber, proper counsel would not even get 3.5 months but far less. The Trial Chamber would surely find some clever argument to justify such decision. For example: A proper counsel could have been appointed earlier but the Accused chose not to appoint counsel….
Kevin, I think you have made my point for me. (Some of) the arguments you have made here on the blog are precisely those that should have been in the application for certification. Had they been there – instead of being conspicuously absent from the application, as I pointed out in my previous comments – I wouldn’t be taking issue with you. My argument is a very narrow one – that the application was patently insufficient and did not raise the single issue that you claimed in your earlier post was at its core (the Rule 44 list). Instead of responding to my argument, you have persisted in blaming the Trial Chamber for rejecting arguments which were never actually put to it. It is tantamount to an appellate court denying an appeal because the notice of appeal was not timely filed, and then having the appellant criticise the court for denying the appeal on its merits. An example. You write: Here, in its entirety, is the Trial Chamber’s explanation of why the Registry’s failure to follow the procedure established in Seselj is not appealable Yet, the Trial Chamber cannot possibly be trying to explain “the Registry’s failure” because nowhere in the application is… Read more »
The point is: the Trial Chamber is delaying the trial only to allow stand-by counsel to prepare for trial. If this counsel must be replaced by proper counsel, the consequence will be another (considerable!) delay!
That’s a fair point. Did Karadzic argue it? I don’t think he did. He argued that the Milosevic and Seselj precedents required certification here, an argument adressed by the TC in par. 8 of its decision, and he argued that the 3½ month period was arbitrary, which the TC rejected in par. 7.
Essentially, filtering out the TC’s poorer arguments, the decision responds to Karadzic’s motion by saying that it is not for Karadzic to argue that the standby counsel needs more time, that the precedents are distinguishable on the grounds that they didn’t deal with the appointment of standby counsel but with the appointment of actual counsel, and that the question of appointed counsel is more suited for appeal if and when counsel is actually appointed.
I agree that Dr. Karadzic did not bring forward the arguments as we did here in this blog. So Martin, Don you have a point there.
However, if the the Trial and the Appeals Chamber have a duty to ensure an “expeditious trial”, given the timely appeal by Dr. Karadzic, shouldn´t the App. Chamber address the Rule 44 issue ex officio?
But maybe I´m having too much of a Civil Law perspective.