The Registrar issued a decision to monitor all communications between the Accused and his Legal Associates pursuant to Rule 65(B) of the Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal (“Rules of Detention”). Following the Accused’s request to review the Registrar’s decision, the Trial Chamber. declared to have jurisdiction to decide the matter and overturned the decision.[1] The Registrar challenged the Trial Chamber’s jurisdiction to review its decisions made pursuant to Rule 65(B) the Rules of Detention. The Appeals Chamber found the following:

15. The jurisprudence on the issue of review of administrative decisions of the Registrar is well-established. In Prosecutor v. Krajišnik, the Appeals Chamber, in the absence of indication as to whom was competent to review a decision of the Registrar under Rule 45 of the Rules of Procedure and Evidence of the Tribunal (“Rules”), noted that power to review a decision of the Registrar as to whether a proposed counsel meets the required qualifications under Rule 44 of the Rules lay with the President of the Tribunal.[2] The Appeals Chamber held 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.[3]

16. On a similar note, in Prosecutor v. Blagojević, the Appeals Chamber determined that the Trial Chamber erred in finding that it had jurisdiction to consider Blagojević’s request for withdrawal of counsel under its inherent power under Articles 20 and 21 of the Statute. Noting that Article 19 of the Directive on Assignment of Defence Counsel provides that a person may seek the President to review the Registrar’s decisions under this Article, the Appeals Chamber held that a Trial Chamber “cannot appropriate for itself a power which is conferred elsewhere” and that “the only option open to a Trial Chamber […] is to stay the trial until the President has reviewed the decision of the Registrar.”[4]

17. In Nahimana et al. v. Prosecutor, the Appeals Chamber of the International Criminal Tribunal for Rwanda (“ICTR”), seized with a request of Appellant Hassan Ngeze to review an administrative decision of the authorities of the detention facilities, dismissed the motion, after noting that “the complaint procedure for the detention conditions has not been duly followed by the Appellant and that he has not yet exhausted the remedies made available to him by the Detention Rules.”[5]

18. More recently in the same case before the ICTR, the Appeals Chamber, seized of a request to authorise privileged communication between Hassan Ngeze and two legal assistants and one lawyer, noted that the relevant Rules of the Rules of Detention of the ICTR foresaw that “when a detainee is not satisfied with the response of the Commanding Officer […] he or she has the right to make a written complaint to the Registrar who shall forward it to the President of the Tribunal” but that in the case at hand, “the Applicant [had] not exhausted the procedure made available to him under the Detention Rules for consideration of his request”. As a result of the non-exhaustion of  the available procedure, the Appeals Chamber decided not to consider Hassan Ngeze’s motion on the merits.[6]

19. The Appeals Chamber finds that Rule 65(B) of the Rules of Detention is clear in vesting the President with the power to reverse any decision made by the Registrar under this Rule.[7] In the case at hand, the Accused failed to direct an appeal against the Registrar’s Decision of 29 September 2008 to the President of the Tribunal. Therefore, he has not exhausted the procedure made available to him under the Rules of Detention for consideration of his request.

20. The Appeals Chamber agrees with the Registrar that the Accused’s failure to appeal the Registrar’s Decision of 29 September 2008 before the competent body does not grant the Trial Chamber jurisdiction to exercise a power clearly attributed to the President by Rule 65(B) of the Rules of Detention.[8] While mindful of the Trial Chamber’s fundamental duty to ensure the fairness of the proceedings before the Tribunal, the Appeals Chamber recalls that in a case of review of an administrative decision, a Trial Chamber may only step in under its inherent power to ensure that proceedings are fair once all available remedies have been exhausted.[9] Accordingly, the fact that the Statute is superior to the Rules of Detention is of no consequence.

21. Finally, with regard to the issue of concurrent jurisdiction, the Appeals Chamber agrees that the Trial Chamber, by accepting to review the Registrar’s Decision of 29 September 2008, implicitly created a “dual competence on the matter”.[10] Such concurrent jurisdiction to review decisions of the Registrar is not consistent with the exercise of a Trial Chamber’s inherent power to ensure that proceedings are fair only once all available remedies have been exhausted. Accordingly, implying such concurrent jurisdiction constitutes an error of law.

19.     The Trial Chamber correctly considered that the Registrar has the primary responsibility in the determination of matters relating to remuneration of counsel under the Legal Aid System of the International Tribunal. The Appeals Chamber has already held that, where the Directive expressly provides for a review of the Registrar’s decision, the Trial Chamber cannot interfere in the Registrar’s decision, and its only option is to stay the trial until that procedure has been completed.[1] Where, however, the Directive does not expressly provide for a review of the Registrar’s decision, the Trial Chamber, pursuant to its statutory obligation to ensure the fairness of the trial, is competent to review the Registrar’s decision in the light of its effect upon the fairness of the trial.

20.     The exercise of such power should, however, be closely related to the fairness of the trial, and it should not be used as a substitute for a general power of review which has not been expressly provided in the Directive. […]

In the present case, the Appeals Chamber was seized of an appeal against a Trial Chamber’s decision in review of the Registrar’s decision.

9. The Prosecution raised the issue of whether the Appeals Chamber should be seised of this appeal by pointing to the Blagojević Appeal Decision which, in its submission, suggests that an appeal of a judicial review would “amount to one review too many”.[1] However, while the Appeals Chamber in Blagojević suggested that a review by the Appeals Chamber of the Trial Chamber’s judicial review of the Registrar’s decision amounted to an “additional” review,[2] the Appeals Chamber in that case nonetheless proceeded to undertake the judicial review on the merits thereby indicating that it considered itself to be properly seised of the appeal.[3] Similarly, in this case the Appeals Chamber considers that it is properly seised of this appeal of the Trial Chamber’s judicial review.

11. Turning to the standard of review to be applied to an appeal of a judicial review of an administrative decision, the Appeals Chamber notes that past appeals of judicial reviews have not always clearly stated the standard of review applicable on a second review of an administrative decision.[4] However, it recalls that decisions relating to the general conduct of trial proceedings are matters that fall within the discretion of the Trial Chamber.[5] In order to successfully challenge a discretionary decision, a party must demonstrate that the Trial Chamber has committed a “discernible error” resulting in prejudice to that party.[6] The Appeals Chamber will only overturn a Trial Chamber’s discretionary decision where it is found to be (1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.[7]

12. The Appeals Chamber recalls that the Registrar has the primary responsibility in the determination of matters relating to the remuneration of counsel.[1] Article 22 of the Directive on the Assignment of Defence Counsel (“Directive”) empowers the Registrar to establish a “lump sum” system of remuneration to assigned counsel, and, in the event of a disagreement over the sum, the Directive vests the Registrar with the discretion to decide the matter after consulting the relevant Chamber.[2] According to Article 30 of the Directive, the Registrar also decides any disagreement on questions relating to the calculation and payment of remuneration or to the reimbursement of expenses after consulting the President and, if necessary, the Advisory Panel.[3] The Directive does not specify an avenue for review of a decision by the Registrar concerning the lump sum payment.

14. However, there is nothing in the Statute of the Tribunal, Rules, or the Directive that provides for a direct appeal of a decision by the Registrar or the President concerning an administrative matter that related exclusively to the trial and has no bearing on appellate proceedings.[4] Rather, the Appeals Chamber’s consideration of such matters is limited to an appeal against a conviction or where the issue properly arises in an interlocutory appeal certified by a Trial Chamber.[5] Therefore, the Appeals Chamber considers that it has no jurisdiction over this matter.

9. The Appeals Chamber has inherent power to review decisions of the Tribunal’s President concerning withdrawal of counsel where such decisions are closely related to issues involving the fairness of proceedings on appeal and if the procedure provided by Article 19 of the Directive has been followed. However, such review is neither a rehearing, nor an appeal, nor is it in any way similar to the review which a Chamber may undertake of its own judgement in accordance with Rule 119 of the Rules.[2] The Appeals Chamber recalls that judicial review of an administrative decision in relation to legal aid under the Directive is primarily concerned with the regularity of the procedure by which the Registrar and/or the President reached the impugned decision.[3] The decision will be quashed if the Registrar or the President:

(a) failed to comply with the legal requirements of the Directive, or

(b) failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision, or

(c) took into account irrelevant material or failed to take into account relevant material, or (d) reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test).[4]

The Appeals Chamber also specified that “[t]hese issues may in the particular case involve, at least in part, a consideration of the sufficiency of the material before the Registrar [or President], but (in the absence of established unreasonableness) there can be no interference with the margin of appreciation of the facts or merits of that case to which the maker of such an administrative decision is entitled”.[5] Finally, in the review, the party contesting the administrative decision bears the onus of persuasion and must show that (a) an error of the nature described has occurred, and (b) that such error has significantly affected the impugned decision to his detriment.[6]

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]

46.     It is inappropriate to describe a person in detention against whom the criminal proceedings have not yet been completed as habitually residing in detention.  The clear intention of this provision in Article 8(B) is to permit the Registrar to take into account the means of those with whom an accused habitually resided before entering detention and/or those with whom he would be residing were he not in detention.  For this purpose, the Registrar is entitled to take into account the information supplied by the accused in his declaration of means. […]  

[The Directive on the Assignment of Defence Counsel was amended since this decision was issued, and the relevant provision was moved from Article 8(B) to Article 10(A).]

12.     […] The burden upon the accused in the first instance to establish that he lacks the means to remunerate counsel, and upon the Registrar in the second instance to establish that the accused does have the means to do so, is not satisfaction beyond reasonable doubt, as in a criminal trial, but merely satisfaction that, more probably than not, what is asserted is true, or (as it is sometimes described) satisfaction on the balance of probabilities.  Satisfaction that what is asserted is more probably true than not will in turn depend on the nature and the consequences of the matter to be proved.  The more serious the matter asserted, or the more serious the consequences flowing from a particular finding, the more difficult it will be to satisfy the relevant tribunal that what is asserted is more probably true than not.

13.     […] A judicial review of such an administrative decision is not a rehearing.  Nor is it an appeal, or in any way similar to the review which a Chamber may undertake of its own judgment in accordance with Rule 119 of the Rules of Procedure and Evidence.  A judicial review of an administrative decision made by the Registrar in relation to legal aid is concerned initially with the propriety of the procedure by which Registrar reached the particular decision and the manner in which he reached it.  The administrative decision will be quashed if the Registrar has failed to comply with the legal requirements of the Directive.  This issue may in the particular case involve a consideration of the proper interpretation of the Directive.  The administrative decision will also be quashed if the Registrar has failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision, or if he has taken into account irrelevant material or failed to take into account relevant material, or 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).  These issues may in the particular case involve, at least in part, a consideration of the sufficiency of the material before the Registrar, but (in the absence of established unreasonableness) there can be no interference with the margin of appreciation of the facts or merits of that case to which the maker of such an administrative decision is entitled.  These standards for judicial review of administrative decisions rest on general principles of law derived from the principal legal systems.

14.     In the review, the accused bears the onus of persuasion.  He must persuade the Chamber conducting the review (a) that an error of the nature described has occurred, and (b) that such error has significantly affected the Registrar’s decision to his detriment.  If the accused fails to persuade the Chamber of either of these matters, the Registrar’s decision will be confirmed.  If the accused has persuaded the Chamber of both matters, the Registrar’s decision may be quashed and, if appropriate, the Chamber may also either rule that legal aid should be granted or, where it is satisfied that the accused has the means to remunerate counsel partially, refer the matter again to the Registrar for him to determine the portion of the cost of having counsel for which the accused does not have the means to pay.[1]  In some cases, it may be appropriate for the Chamber simply to quash the decision and to direct the Registrar to reconsider his decision in the light of the Chamber’s decision.  It is clear, from the implicit restriction that only the Registrar may determine the extent to which the accused has the means partially to remunerate counsel, that the power of the Chamber to substitute its own decision for that of the Registrar is limited.

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RECALLING that judicial review of an administrative decision made by the Registrar in relation to legal aid is concerned initially with the propriety of the procedure by which the decision was made and that the decision may be quashed if the Registrar: (i) has failed to comply with the relevant legal requirements; (ii) failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision; (iii) took into account irrelevant material or failed to take into account relevant material; or (iv) reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached;[1]

RECALLING FURTHER that the party contesting the administrative decision bears the onus to show an error in the decision and that the error has significantly affected the decision to his detriment;[2]