23 Nov Trial Chamber Denies Certification to Appeal Stand-By Counsel
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?
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?
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.
@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.
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?
@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.
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.
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… Read more »
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.