Trial Chamber Grants Certification to Appeal

by Kevin Jon Heller

The Trial Chamber has granted certification to appeal its decision upholding the Registry’s selection of Richard Harvey as stand-by counsel. Here are the relevant paragraphs:

10. With regard to the first limb that must be met before certification to appeal can be granted under Rule 73(B) of the Rules, the Chamber notes that the Decision Denying Motion to Vacate concerned the process by which the Registrar appointed Richard Harvey, and in that Decision, the Chamber found that if the Registrar’s decision was flawed and/or illegal because he had not followed the proper procedure, this would inevitably affect the Accused’s fair trial rights and thus the propriety of the procedure was a matter that goes to the fairness of his trial. For the same reasons, with regard to the Application, the Chamber is of the view that as the procedural propriety of the Registrar’s decision-making process may impact upon the Accused’s rights, the Decision Denying Motion to Vacate involves an issue that would significantly affect the fair conduct of the proceedings or the outcome of the trial.

11. With regard to the second limb of Rule 73(B), the Chamber notes that the trial is set to resume on 1 March 2010. The role and functions of Richard Harvey at that time remain to be seen and are dependent on the Accused’s behaviour. However, as there is a possibility that Richard Harvey may be required to represent the interests of the Accused at trial, it is clearly desirable for the matter of the propriety of his appointment by the Registrar to be resolved immediately, and not at the end of the trial when it may raise the prospect of a re-trial. Therefore, the Chamber is satisfied that an immediate resolution by the Appeals Chamber of the validity of the manner in which Richard Harvey was appointed may materially advance the proceedings.

I’m delighted the Trial Chamber has finally been convinced that our challenge is not premature simply because Harvey has not yet been appointed actual counsel.  As we have been pointing out for weeks, it makes no sense to appoint stand-by counsel who could not be appointed actual counsel.  So it is in everyone’s interest to resolve the issue now.

The certification decision is here.  My post explaining — ad nauseum — why the Trial Chamber’s original decision is flawed can be found here.  I will post our appeal brief as soon as it is filed.

Motions for certification to appeal are strange creatures.  I’m not sure why the judges thought it would be a good idea to require the parties to ask the Trial Chamber for permission to appeal its own decisions.  But at least the judges did the right thing here and certified our appeal.  I’m rarely optimistic about our motions, but I can’t see how the Appeals Chamber can possibly endorse the Registry’s jerry-rigged selection of Harvey and the Trial Chamber’s hear-no-evil, see-no-evil “review” of that selection.

http://opiniojuris.org/2010/01/13/trial-chamber-grants-certification-to-appeal/

4 Responses

  1. Congrats!

    As to the point of certification, I think it makes sense to have the TC, who are familiar with the case, certify issues for appeal. That way, the delay and disruption caused by frivolous appeals is minimised.

  2. I honestly don’t know how you do it.  After the last post, I lost hope that the Trial Counsel would do anything fairly.

    A step forward, hopefully not two steps back.

  3. @Martin: What about frivolous denials of Appeal?

  4. @Justinian: (I assume you mean frivolous denials of certification.)

    That is why such a certification system isn’t optimal in all circumstances. It involves a weighing of several factors., most importantly the likelihood that a party will frivolously appeal, the legitimacy of the court, and the likelihood that certification, if required, will be frivolously denied.

    Comparing criminal justice to civil litigation, the difference is that in the former there is one party who may well not want to see the litigation resolved any time soon. Hence, a higher likelihood of frivolous (interlocutory) appeals.

    In normal criminal justice courts, the possibility for interlocutory appeal is very clearly circumscribed, exactly for this reason.

    (Art. 406 of the Dutch Code of Criminal Procedure, for example, allows “interlocutory” appeal only against a ruling by the court that the defendant should be detained pending trial, and against a ruling rejecting the defendant’s petition to be released pending trial. Otherwise, appeals are only permitted against final judgements.)

    The ICTY, however, cannot use such a system, because it doesn’t have the inherent legitimacy to postpone appeals that long. The TC needs to be seen as being on a shorter leash than would be required for national courts. On the other hand, that leash needs to be long enough that an actual trial remains possible. That tension can be relieved by using certification, like I explained in my earlier comment.

    If that system doesn’t work satisfactorily, because the TC cannot be trusted to refuse or allow certification honestly, the Tribunal has a serious problem well beyond the ordinary fix of requiring certification for some questions but not others.

    (Under rule 72(b)(i) no certification is necessary for an appeal in the case of a preliminary motion challenging jurisdiction. Under Rule 108bis “states directly affected by an interlocutory decision” may file direct appeal. As far as I can see, those are the only exceptions to the ordinary certification requirement, at the moment.)

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