Competence vis-à-vis Trial Chambers

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Decision on Postponement of Trial - 31.03.2010 KARADŽIĆ Radovan

On 19 February 2010, the President of the Tribunal (“President”) rendered a decision[1], in which he held that the remuneration granted by the Registry to Radovan Karadžić’s defence team for the period between the adjournment of the trial and the resumption thereof (“adjournment period”)[2] was insufficient. This raised the question how the February 2010 President Decision should affect the date of the resumption of the trial scheduled by the Trial Chamber. In determining this matter, the Appeals Chamber clarified the competence of the President vis-à-vis Trial Chambers, stating:

19. […]. The President is vested with the authority to supervise the activities of the Registrar, who is in charge of the administration and servicing of the Tribunal.[3] However, decisions relating to the general conduct of trial proceedings, including the scheduling of trials, are matters that fall within the discretion of Trial Chambers.[4] None of the provisions in the Statute of the Tribunal (“Statute”) or the Rules confers on the President the authority to interfere with a Trial Chamber’s determination with respect to the scheduling of a trial to which it is assigned. Indeed, while Trial Chambers are bound by the ratio decidendi of decisions of the Appeals Chamber,[5] the President has no competence to issue decisions that are binding on Trial Chambers.[6] This power is exclusively conferred upon the Appeals Chamber pursuant to Article 25 of the Statute.[7]

20. Thus, in accordance with his mandate, in the February 2010 President Decision, the President solely dealt with the issue of remuneration for Karadžić’s defence team. He refrained from stating how his determination of the issue might affect the scheduled date of the resumption of the trial. The latter was clearly within the competence of the Trial Chamber, not of the President.

21. The Appeals Chamber considers that the President’s evaluation of defence funding may be a factor for a Trial Chamber to consider when deciding upon the scheduling of a trial, in discharging its duty to ensure the fair and expeditious management of the trial proceedings. However, this does not mean that the President’s order to increase the remuneration for a defence team invariably warrants postponement of the trial. Thus, it was open for the Trial Chamber to conclude, in light of other relevant factors, that the President’s view on the defence funding during the adjournment period would not necessitate further delay in the proceedings in order to safeguard Karadžić’s rights to a fair trial.

22. […] Therefore, Karadžić’s assertion that the Trial Chamber overruled the February 2010 President Decision or removed the remedy granted therein although it was obliged to implement the President’s order, is based on the misconception of both the law and the Impugned Decision. The Trial Chamber did not overrule the President, but concluded that the level of defence assistance for Karadžić, which the President found too low, could be remedied by means other than postponement of the trial.[8] The Appeals Chamber finds no error in this approach.

[1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Request for Review of OLAD Decision on Trial Phase Remuneration, 19 February 2010 (“February 2010 President Decision”).

[2] The trial in the Karadžić case commenced on 26 October 2009. However Karadžić absented himself from the proceedings. On 5 November 2009, the Trial Chamber adjourned the proceedings until 1 March 2010, see Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Appointment of Counsel and Order on Further Trial Proceedings, 5 November 2009.

[3] Rules 19(A) and 33(A) of the Rules [Rules of Procedure and Evidence].

[4] Ngirabatware Decision [Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009], para. 22; Milošević Decision [Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004], para. 16; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.2, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on Adequate Facilities, 7 May 2009, para. 11. See also Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-PT, Decision on Appeal Against Registry Decision of 19 December 2006, 12 March 2007, para. 6.

[5] Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000, para. 113.

[6] Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-T, Decision on Urgent Registry Submission Pursuant to Rule 33(B) Seeking Direction From the President on the Trial Chamber’s Decision of 27 November 2008, 17 December 2008, para. 9.

[7] Id.

[8] Id., paras 40, 43, 47.

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