Self-representation

Notion(s) Filing Case
Decision on Self-Representation - 11.05.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

11.    To begin with, Article 21(4)(d) of the Statute draws no distinctions between the trial stage and the appeal stage of a case.  There is thus no textual basis for concluding that the guarantee to self-representation therein (as recognized in the Milošević Decision) evaporates with the issuance of the trial judgement.  Moreover, there is no obvious reason why self-representation at trial is so different in character from self-representation on appeal as to require an a priori distinction between the two.  Self-representation on appeal may be a complex and tricky business, but on its face it is no more difficult (and indeed perhaps less difficult) than self-representation at trial.  Both stages involve complicated factual and legal issues and require familiarity with a daunting set of procedural rules.  It may never be in an individual’s interests to represent himself, either at trial or at appeal, but he nonetheless has a “cornerstone” right to make his own case to the Tribunal.

12.    Finally, a review of the case law of domestic jurisdictions does not support a distinction between the trial and appeal stages for purposes of self-representation.  In the course of substantial research, as supplemented by the helpful submissions of the parties, the Appeals Chamber has come across only one jurisdiction – the United States – that finds a right to self-representation at trial but not on appeal.[2]  Moreover, in concluding that the United States federal Constitution grants defendants a right to self-representation at trial but not on appeal, the United States Supreme Court relied heavily on the fact that the relevant constitutional provision “does not include any right to appeal” and thus that “[i]t necessarily follows that [this provision] does not provide any basis for finding a right to self-representation on appeal.”[3]  Such reasoning has no force in the situation at hand, since Article 25 of the Statute of the Tribunal plainly provides a right of appeal.  The Appeals Chamber thus declines to rely on the distinction drawn in United States jurisprudence.  The Appeals Chamber further considers it noteworthy that no other jurisdiction appears to draw such a distinction.[4]

[1] See Further Submissions, para. 4 (making this point). 

[2] See Faretta v. California, 422 U.S. 806 (1975) (finding a federal constitutional right to self-representation at trial); Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152 (2000) (finding no federal constitutional right to self-representation on appeal).

[3] Martinez, 528 U.S., at 160. 

[4] Indeed, the Prosecution’s extensive research led it to conclude affirmatively that common law systems which permit self-representation at trial also typically permit self-representation on appeal.  Prosecution’s Corrigendum, para. 39 (“Most common law systems studied allow self-representation on appeal”).  

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Decision on Assignment of Counsel No 2 - 08.12.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.4)

The Appeals Chamber examined whether the Appeal Decision which re-instated Šešelj’s presumptive right to self-representation allowed the Trial Chamber to immediately assign standby counsel, in light of the fact that the Appeal Decision did not specifically note the extent of the Trial Chamber’s discretion in this matter.  The Appeals Chamber concluded that the imposition of standby counsel by the Trial Chamber had the practical effect of undermining the Appeal Decision.

19.     […] Article 21(4) of the Statute of the International Tribunal.  Article 21(4)(d) of the Statute grants the right of an accused “to defend himself in person or through legal assistance of his own choosing”  The jurisprudence of this Tribunal has interpreted this provision of Article 21 as providing an accused with “the presumptive right to self-representation”.[1]  However, a presumptive right to self-representation does not translate into an absolute right and there are circumstances in which this right may be curtailed.  Of relevance to this appeal, a Trial Chamber may place restrictions on the right of an accused to self-representation where “a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial”.[2]

20.     The Appeals Chamber has already indicated […] what it considers to  be the real issue for it to determine […], whether the Appeal Decision, wherein Šešelj’s right to self-representation was re-instated, allowed the Trial Chamber to immediately order the assignment of standby counsel without establishing any persistent or obstructionist behaviour on his part.  Šešelj’s view is that it did not and it is in light of that view that Šešelj has undertaken action, which resulted in the Trial Chamber determining that it had the right to impose Counsel in the Impugned Decision.  […]

22.     […] [I]t would have been better if the Appeals Chamber in returning to Šešelj the right to self-representation would have made clearer what it considered that to mean with respect to the discretion on the part of the Trial Chamber to immediately impose standby counsel with a right to jump in and take over the proceedings in the circumstances identified by the Trial Chamber in its Decision to Assign Standby Counsel. This is particularly so given that the Appeals Chamber was made abundantly aware of Šešelj’s opposition to standby counsel during his pre-trial proceedings.

23.     […] Having just had its decision on the assignment of counsel overturned on appeal the Trial Chamber viewed [imposing standby counsel] as a necessary move to preserve Šešelj’s right to a fair and expeditious trial in light of the history of proceedings in his case pre-trial.

24.     […] The Appeals Chamber […] must […] acknowledge that its decision restoring the right of Šešelj to self-representation was not clear as to whether the restoration of that right to self-representation allowed the Trial Chamber to restore the status quo by immediately reassigning standby counsel, following the Appeal Decision without establishing any obstructionist conduct on the part of Šešelj.  The Appeals Chamber notes that standby counsel is not assigned counsel, and there are clear limits on the ability of standby counsel to participate in the proceedings, including that such participation did depend upon the conduct of Šešelj.  However, the fact that the Registry appointed former assigned counsel to act as standby counsel following the Appeal Decision, and then following the protest by Šešelj to that appointment, the Trial Chamber ordered the reassignment of standby counsel to act as assigned counsel in the Impugned Decision[3]  further entrenched Šešelj’s belief that the Trial Chamber had not respected the right restored to him by the Appeals Chamber.  He was not given a clean slate by the Trial Chamber following the Appeal Decision.

26.     While the Appeals Chamber did not explicitly state that the Trial Chamber was prohibited from imposing standby counsel, the Appeals Chamber finds that the Trial Chamber decision to do so, immediately upon the issuing of its decision and without establishing any additional obstruction by Šešelj, did have the practical effect of undermining the practical implementation of that decision. 

[1] Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004 (“Milošević Decision on Defence Counsel”), para. 11.

[2] Ibid., paras. 12-13.

[3] Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006 (“Appeal Decision”) para. 45.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Order in Relation to the Appeal Hearing - 18.09.2017 ŠEŠELJ Vojislav
(MICT-16-99-A)

Pages 2-3

CONSIDERING that Šešelj has elected to represent himself and that he has the right to self‑representation at the appeal stage;

[…]

CONSIDERING that, in view of Šešelj’s current position not to appear at the appeal hearing, the Appeals Chamber must take appropriate measures to ensure that his interests are represented at the upcoming appeal hearing in order to ensure the fair and expeditious conduct of the proceedings;

CONSIDERING that, prior to restricting Šešelj’s right to self-representation, the Appeals Chamber must issue a warning that is specific in nature;

CONSIDERING that, if [ešelj maintains his intention not to attend the appeal hearing, it will be in the interests of justice to instruct the Registrar pursuant to Rules 46 and 131 of the Rules to assign a standby counsel to represent Šešelj’s interests in the event that Šešelj is not present at the appeal hearing;

CONSIDERING that any restrictions on Šešelj’s right to represent himself must be limited to the minimum extent necessary to protect the Mechanism’s interest in a reasonably expeditious resolution of the appeal before it;

CONSIDERING, therefore, that, in order to preserve Šešelj’s right to self-representation, the mandate of the standby counsel shall be strictly limited to ensuring that Šešelj’s procedural rights at the hearing are protected if he does not attend, and shall not extend to making a response on [ešelj’s behalf on the substance of the Prosecution’s appeal;

[…]

CONSIDERING that Šešelj should be given an opportunity to reconsider his position not to attend the appeal hearing prior to instructing the Registrar to assign standby counsel;[5]

[1] Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, paras. 10-12.

[2] Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006 (“Šešelj Appeal Decision”), paras. 22-25.

[3] See Nahimana et al. Appeal Judgement, para. 109.

[4] See Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, paras. 17, 19.

[5] Šešelj Appeal Decision, paras. 24, 25.

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MICT Statute Article 19(4)(d) MICT Rule Rule 46;
Rule 131
Notion(s) Filing Case
Decision on Assignment of Standby Counsel for the Appeal Hearing - 11.10.2017 ŠEŠELJ Vojislav
(MICT-16-99-A)

Page 2

CONSIDERING that Šešelj’s refusal to respond to the Order indicates that he maintains his previously stated position not to participate in any way in the appeal hearing;

CONSIDERING that Šešelj’s position not to participate in the appeal hearing rises to the level of a disruption of the proceedings that would warrant the restriction of his right to self-representation;

CONSIDERING that, pursuant to Rules 46 and 131 of the Rules, the assignment of standby counsel is warranted in the interests of justice to ensure the protection of Šešelj’s rights at the appeal hearing;

[1] See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, paras. 20, 21; Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004 (“Milošević Decision of 1 November 2004”), para. 13.

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MICT Statute Article 19(4)(d) MICT Rule Rule 46:
Rule 131
Notion(s) Filing Case
Decision on Karadzic's Request to Participate in the Appeal Hearing - 28.02.2018 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 1-2:

RECALLING that Article 19(4)(d) of the Statute of the Mechanism provides for an alternative between the right to self-representation and the right to legal assistance, but does not entitle an accused or an appellant who is represented by counsel to self-representation;

[…]

RECALLING that assigned counsel “shall be responsible for all aspects of defence of [...] accused before the Mechanism”;[2]

CONSIDERING, however, that the Appeals Chamber may exercise its discretion to allow persons other than counsel and co-counsel to make representations before it;

[…]

FINDING that it is in the interests of justice to grant Karadžić the right of audience before the Appeals Chamber to present arguments related to the Appeal Grounds;

CONSIDERING that this finding is without prejudice to the opportunity which will be afforded to Karadžić to make a brief personal address to the Appeals Chamber at the end of the hearing of the appeals;

[1] See Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Scheduling Order for Appeals Hearing and Decision on Hassan Ngeze’s Motion of 24 January 2006, 16 November 2006, p. 3. See also Slobodan Milošević v. Prosecutor, Case No. IT-02-54AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004, para. 11.

[2] Directive on the Assignment of Defence Counsel, MICT/5, 14 November 2012, Article 16(B).

[3] See, e.g., Prosecutor v. Vlastimir Đorđević, Case No. IT-0587/1-A, Transcript (“T.”) 13 May 2013 pp. 53, 54 (granting right of audience to a legal assistant); Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, T. 20 March 2017 p. 116 (granting right of audience to legal consultants assigned pursuant to Rule 45 of the Rules of Procedure and Evidence of the ICTY).

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MICT Statute Article 19(4) Other instruments MICT Directive on the Assignment of Defence Counsel: Article 16(B)