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.