Adequate time and facilities to prepare for one's defence

Notion(s) Filing Case
Decision on Modalities of Self-Representation - 11.09.2007 KRAJIŠNIK Momčilo

Article 21(4)(b) guarantees that an accused is entitled, inter alia, “to have adequate time and facilities for the preparation of his defense”. Paragraphs 35 and 36 provided some content to what this guarantee means for a self-represented accused on appeal.

35. The third issue is quantity of access. The Registry has authorized Mr. Krajišnik to have unlimited communications with any designated legal associates, and Mr. Krajišnik can contact all other persons (e.g., investigators) in accordance with standard procedures at the UNDU. When designated legal associates exist, this approach is a reasonable one. The unlimited access to the designated legal associates would provide Mr. Krajišnik with a conduit for exchanging appropriate information with other members of his team where time limitations (or other limitations) imposed by UNDU standard procedures impede direct exchange. This in turn would satisfy the requirement pursuant to Article 21(4)(b) of the Statute that an accused have “adequate time and facilities for the preparation of his defence”.

36. If no legal associates have been designated, however, then the Appeals Chamber has some concerns about the Registry's approach. In this situation, pursuant to the Registry's approach a self-represented accused is limited only to the standard UNDU procedures for communication with the outside. If these procedures do not provide a self-represented accused with sufficient opportunity to exchange appropriate information with team members outside the UNDU during the preparation of his case, then this may amount to a lack of "adequate time and facilities for the preparation of his defence" in violation of Article 21(4)(b) of the Statute […]. Nonetheless, the Appeals Chamber informs the Registry that in the event that no legal associates are designated, the Registry should ensure that Mr. Krajišnik has adequate means of communicating with his defence team while he is preparing his appeal brief and his reply brief. If accommodations beyond those provided under standard UNDU procedures are thus necessary, the Appeals Chamber expresses its conviction that the Registry will provide such accommodations in the manner it deems most consistent with preserving order and security in the UNDU.

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ICTR Statute Article 20(4)(b) ICTY Statute Article 21(4)(b)
Notion(s) Filing Case
Decision on Trial Schedule - 19.07.2010 KARADŽIĆ Radovan

10. At the outset, the Appeals Chamber observes that Karadžić’s Appeal is premised on an alleged error of law, specifically that the Trial Chamber erred in equating his situation with that of an accused represented by counsel. It is evident the Trial Chamber considered that Karadžić should exercise his right to self-representation within the frame-work of measures introduced to ensure the reasonable progress of the trial.[1] In this context, the Trial Chamber observed:

Sitting four or five days a week should not place an unreasonable burden on the Accused; indeed, many defence counsel have represented their clients before this Tribunal on a five-day sitting schedule. However, should the Accused find that the task of representing himself becomes too arduous, he may consider the various options available for varying his representation arrangements.[2]

11. The Appeals Chamber recalls that “in general a self-represented accused is expected to undertake all the tasks normally assumed by counsel”.[3] The daily rigour of preparation for trial is a fundamental part of these tasks. Moreover, the Appeals Chamber underscores that while “a Trial Chamber must be particularly attentive to its duty of ensuring that the trial be fair” to self-represented accused, an accused “who decides to represent himself relinquishes many of the benefits associated with representation by counsel.”[4]

12. The Appeals Chamber discerns no error in the Trial Chamber’s approach. The Impugned Order considers a broad range of factors, including Karadžić’s trial-readiness, his advance notice of the witnesses to be called, his apparent good health and the considerable resources at his disposal, which it found comparable to those available to an accused represented by counsel.[5] Furthermore, the Trial Chamber underscored its continuing commitment to its statutory duty to ensure a fair and expeditious trial.[6] In these circumstances, Karadžić has failed to demonstrate that the Trial Chamber erred in its application of the governing law. Indeed, the reasoning in the Impugned Order amply demonstrates the Trial Chamber’s commitment to ensure the fairness of the proceedings.[7]

[1] Impugned Order [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Order on the Trial Schedule, 27 May 2010], para. 7.

[2] Impugned Order, para. 7.

[3] 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. 23.

[4] See Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.5, Decision on Radovan Karadžić’s Appeal of the Decision on Commencement of Trial, 13 October 2009, para. 24 (internal quotations omitted); 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. 19.

[5] Impugned Order, paras 4, 5, 7. The Appeals Chamber considers that the arguments raised by Karadžić with respect to the alleged inequality of arms and his impending ill health to be without merit.

[6] Impugned Order, para. 7. The Trial Chamber found that “there is [no] reason to retain the three-day per week sitting schedule as a general practice for the remainder of the Prosecution phase of this case, or that moving to a four-day per week schedule will have any negative effect on the rights of the Accused”. See Impugned Order, para. 8.

[7] Cf. Milošević Decision, para. 19.

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