36. […] Rule 77(D)(i) provides in relevant part that that where a Chamber has directed the Prosecutor to investigate a potential matter of contempt with a view to preparing and submitting an indictment for contempt and “the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may […] direct the Prosecutor to prosecute the matter”. […] While Rule 77(D)(i) provides that a “Chamber” may direct the Prosecutor to prosecute a person for contempt, it does not preclude a Confirming Judge from authorizing the Prosecution to prosecute on behalf of the Trial Chamber that is seized with the matter.[1]

15. Although the Appeals Chamber has concluded that the Appellant has not shown “good cause” justifying the amendments to his grounds of appeal at this stage in the appeals proceedings, the Appeals Chamber recalls having under limited circumstances permitted amendments even where there was no good cause shown for failure to include the new or amended grounds in the original notice – that is where the failure resulted from counsel’s negligence or inadvertence. In such instances, the Appeals Chamber has permitted amendments which could be of substantial importance to the success of an appeal such as to lead to a miscarriage of justice if they were excluded.In these exceptional cases, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of his or her counsel. In the instant case, the Appeals Chamber concludes that the failure on the part of the Appellant’s Counsel to articulate these grounds at an earlier stage should not bar the Appellant from raising those grounds of appeal here. […]

15. […] The Appeals Chamber notes that each of these grounds goes to the issue of the sufficiency of the Indictment brought against the Appellant, which directly impacts upon his due process right under Article 21(4)(a) of the Statute “to be informed promptly and in detail […] of the nature and cause of the charge against him.” Protection of this right is considered to be of such importance that the issue of alleged defects in the indictment falls into the limited category of issues considered to be excepted from the waiver doctrine. In this case, therefore, the Appeals Chamber finds that the proposed new amendments, whether or not they are likely to succeed, could be of substantial importance to the Appellant’s appeal such that their exclusion would lead to a miscarriage of justice.[4]

16. The Appellant claims that, at the Appeal Hearing, the Prosecution raised new important factual challenges. The Appeals Chamber is of the view that the Appellant had the opportunity to object to the Prosecution’s allegedly new arguments during the Appeal Hearing but did not do so. […]Even if the Appellant was not in a position to exhaustively reply to those arguments at the Appeal Hearing, it was open to him to make a reasoned objection at the Appeal Hearing and, in case any allegedly new arguments had nevertheless been allowed by the Appeals Chamber, he should have sought leave, at the Appeal Hearing, to respond to them in writing at a later stage.[1]

17. The Appeals Chamber is not satisfied that the Appellant has shown that filing a written reply to the Prosecution’s allegedly new arguments raised at the Appeal Hearing would be necessary or justified in the present case. This type of submission is not provided for by the Rules or Practice Directions of the Tribunal and could only be allowed in rather exceptional circumstances.

13. The Appeals Chamber recalls that a brief in reply must be “limited to arguments in reply to the Respondent’s Brief” and therefore that it should not contain new allegations of error[1] Consequently, the Second Supplemental Reply Brief should have been limited to the Prosecution’s arguments in response to the Appellant’s supplemental arguments, which in turn should have been limited to the potential impact of the three elements of additional evidence admitted on appeal.[2] Without having sought leave from the Appeals Chamber, the Appellant chose to include in his Second Supplemental Reply Brief a “reply to assertions raised by the [P]rosecution for the first time during oral arguments that certain of Appellant’s factual arguments under the sub-heading 1.2(1) lack evidentiary support in the certified trial record”.[3] This procedure was improper.

P. 5: CONSIDERING, however, that “ex parte material, being of a higher degree of confidentiality, by nature contains information which has not been disclosed inter partes because of security interests of a State, other public interests, or privacy interests of a person or institution”[1] and that “[c]onsequently, the party on whose behalf ex parte status has been granted enjoys a protected degree of trust that the ex parte material will not be disclosed”;[2]

FINDING that the Applicant has not demonstrated a legitimate forensic purpose in relation to such ex parte material;

The Krajišnik Appeals Chamber was seized of a motion by Stanišić, asking for access to all confidential material in the Krajišnik case for the purposes of his defence. The Prosecution responded that it would not oppose access to all inter partes material subject to material relating to certain witnesses (specified in an ex parte annex) whose identities had been protected from Krajišnik pursuant to Rule 69 orders and who the Prosecution intended to call in the Stanišić trial as well. The question therefore arose whether Rule 75(F), which stipulates that once protective measures are ordered in one trial they are also in effect with regard to other proceedings before the Tribunal, also applies to measures ordered pursuant to Rule 69. The Appeals Chamber answered this question in the affirmative:

P. 7: CONSIDERING that “delayed disclosure” orders are protective measures to which Rule 75(F) of the Rules applies;[1]

CONSIDERING that even though such orders given in the first proceedings could be considered moot once disclosure is made, “the meaning of the expression ‘mutatis mutandis’ itself requires a flexible application of the principle enshrined in [Rule 75] and suggests that the same kinds of protection given to a witness in one case should be automatically extended to this witness in a later case, regardless of whether this is literally ‘continuation’”;[2]

FINDING that the sensitive witnesses in the Krajišnik case, as listed in the Prosecution Annex, were protected by delayed disclosure orders and that, if they are going to testify in another case, the information from the Krajišnik case should similarly be subject to delayed disclosure to the defendants in that other case (unless an order pursuant to Rule 75(G) is made);[3]

P. 5: CONSIDERING, however, that “ex parte material, being of a higher degree of confidentiality, by nature contains information which has not been disclosed inter partes because of security interests of a State, other public interests, or privacy interests of a person or institution”[1] and that “[c]onsequently, the party on whose behalf ex parte status has been granted enjoys a protected degree of trust that the ex parte material will not be disclosed”;[2]

FINDING that the Applicant has not demonstrated a legitimate forensic purpose in relation to such ex parte material;

23. […] The Trial Chamber did not state that because the Completion Strategy is reflected in a Security Council resolution, it is therefore bound to its deadlines in the management of this trial. Rather, it merely considered the Completion Strategy as one factor to be weighed in the Impugned Decision while correctly stressing that it would not allow the “considerations of economy” to “violate the right of the Parties to a fair trial.”[1] The Appeals Chamber notes however, as it has done previously in this case, that Completion Strategy considerations aside,

time and resource constraints exist in all judicial institutions and that a legitimate concern in this trial, which involves six accused, is to ensure that the proceedings do not suffer undue delays and that the trial is completed within a reasonable time, which is recognized as a fundamental right of due process under international human rights law.[2]

20. […] [T]he Appeals Chamber reiterates that the imposition of time limits in a trial – whether calculated in months or hours – is entirely the prerogative of the Trial Chamber. The true intent and extent of the independence accorded to the Prosecutor under Article 16 of Statute is to ensure that no “government or other institution or person, including the Judges of the Tribunal, can direct the Prosecutor as to whom he or she is to investigate or to charge.”[1] The Appeals Chamber maintains that it is erroneous for the Prosecution to suggest that its independence extends to the way in which its case is to be presented before a Trial Chamber.[2]

While the Appeals Chamber reserved the right to rule on the issue of Krajišnik’s self-representation, which it did later,[1] it decided that it was in the President’s authority to review a Registrar’s decision assigning counsel pursuant to Rule 45. At pages 2-4, it considered that:

CONSIDERING that in the Registrar’s Decision, the Registrar assigned counsel to the Applicant from the list of counsel qualified to represent indigent suspects and accused pursuant to Rule 45 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”);

CONSIDERING that under Rule 45(A), such assignments are made by the Registrar in accordance with the procedure established in the Directive on the Assignment of Defence Counsel (“Directive”),[2] but that Rule 45 does not specify who has competence to review a decision by the Registrar under that Rule;

CONSIDERING that pursuant to Article 13(B) of the Directive, an “accused whose request for assignment of counsel has been denied or who has been found to have sufficient means to remunerate counsel in part, may [. . .] file a motion to the Chamber before which he is due to appear for review of the Registrar’s decision”;

CONSIDERING however that, Article 13(B) of the Directive applies to a decision by the Registrar whether or not to assign counsel on the basis of an accused’s alleged indigency;[3]

CONSIDERING that in this case before the Appeals Chamber, the Registrar’s Decision did not deny assignment of counsel to the Applicant on the basis of non-indigency or find that the Applicant is only partially indigent; rather, it assigned counsel to the Applicant from the Rule 45 list of counsel and refused to assign the Applicant’s preferred counsel because, in its view, that counsel did not fulfil the qualification requirements for admission to the Rule 45 list,[4] which, under Rule 45(B)(i), expressly incorporates all of the qualification requirements found under Rule 44 of the Rules for counsel who appear before the International Tribunal;[5]

CONSIDERING that under Rule 44(A) and (B) of the Rules, power to review a decision by the Registrar as to whether a proposed counsel meets the required qualifications therein for representing an accused before the International Tribunal lies with the President of the International Tribunal;[6]

CONSIDERING further that, just as a Chamber may not review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements under Rule 44(A) and (B) of the Rules, neither may a Chamber review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements for assignment of counsel under Rule 45(B) of the Rules as that power is vested in the President of the International Tribunal, and a Chamber may only step in thereafter under its inherent power to ensure that its proceedings are fair;[7] 

FINDING therefore that the Appeals Chamber is not competent to consider the requests raised in sub-paragraphs (a) and (b) of the Motion and that the authority for reviewing the Registrar’s Decision lies with the President of the International Tribunal;

FINDING that the remaining request in sub-paragraph (c) can be decided only by the Appeals Chamber on the basis of the decision by the President of the International Tribunal in relation to requests (a) and (b) which, by their nature, have priority;[8]

HEREBY DISMISSES the Motion in relation to sub-paragraphs (a) and (b);

[…]

REMAINS SEIZED of the request in sub-paragraph (c).

The President subsequently ruled on Krajišnik’s requests a) and c): [9]

The President held that he had jurisdiction to review the decision by the Registrar, assigning counsel to Krajišnik pursuant to Rule 45, paras. 7-10. As in the Appeals Chamber’s decision of 29 January 2007, the question centered on the interpretation of Rules 44, 45 and the Directive on the Assignment of Defence Counsel:

7.       As a preliminary matter, the first issue before me is whether I am competent to review the Impugned Decision. Krajišnik states that I have competence under Article 13(A) of the Directive, which provides that

[t]he suspect whose request for assignment of counsel has been denied may, within fifteen days from the date upon which he is notified of the decision, file a motion before the President for review of that decision. The President may either confirm the Registrar’s decision or rule that a counsel should be assigned.

In addition, Krajišnik submits that I may review the Impugned Decision because the President of the International Tribunal “has an inherent jurisdiction to review an administrative decision of the Registrar that impugns upon the rights of an accused at this Tribunal.”[10]

8.       While I do find that I have power to review the Impugned Decision, it is not on the legal bases that Krajišnik suggests. As is evident from the plain language of Article 13(A) of the Directive, the President’s power of review is with respect to the Registrar’s decision to assign counsel to a suspect, a category into which Krajišnik clearly does not fall having been convicted by a Trial Chamber of this International Tribunal.[11] Furthermore, Article 13(A) pertains to review of a Registrar’s decision whether or not to assign counsel on the basis of a suspect’s alleged indigency.[12] In this case, the Impugned Decision did not deny assignment of counsel to the Applicant on that basis; “rather, it assigned counsel to the Applicant from the Rule 45 list of counsel and refused to assign the Applicant’s preferred counsel because, in its view, that counsel did not fulfil the qualification requirements for admission to the Rule 45 list.”[13]

9.       Furthermore, while I do enjoy an inherent power to review administrative decisions of the Registrar where they impinge upon the rights of an accused before the International Tribunal,[14] I may not exercise that power where the power of review has been expressly conferred elsewhere.[15] Thus, I do not agree with Krajišnik’s argument that I may review the Impugned Decision on grounds that it fails to respect the exercise of his right to self-representation because that power lies with the Appeals Chamber. As held by the Appeals Chamber, “[w]hether an accused may exercise the right to self-representation under the Statute of the International Tribunal is for the Chamber to decide in light of its duty to ensure the fair and expeditious management of its proceedings.”[16] 

10.     However, I do have authority to review the Impugned Decision in so far as it was a determination by the Registrar as to whether Krajišnik’s counsel of choice met the qualification requirements under Rule 45(B) of the Rules for being assigned to him in this appeal. As recently clarified by the Appeals Chamber, “just as a Chamber may not review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements under Rule 44(A) and (B) of the Rules, neither may a Chamber review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements for assignment of counsel under Rule 45(B) of the Rules as that power is vested in the President of the International Tribunal.”[17]

As for the standard of review, the President held:

11.     The Registrar’s decision to permit or deny assignment of counsel under Rule 45 of the Rules in the “interests of justice” involves both questions of law and fact.[18] Given that the Registrar has “principal responsibility for overseeing the assignment of defence counsel”, he enjoys a certain degree of deference or margin of appreciation in reaching a decision on assignment of counsel.[19] Where a suspect or an accused requests that I review such an administrative decision of the Registrar, that individual bears the burden of demonstrating that the Registrar has erred and that such error has “significantly affected the Registrar’s decision to his detriment.”[20] In reviewing such an administrative decision by the Registrar, I will only quash that decision where I am persuaded that he has: (1) failed to comply with the legal requirements of the Directive at issue; (2) failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision; (3) taken into account irrelevant material or failed to take into account relevant material; or (4) if he has reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test).[21]