39. The Appeals Chamber recalls that Article 21(4)(d) of the Statute does not support the right to legal assistance for an accused who elects to self-represent.[1] The principle of equality of arms referenced in Article 21(1) of the Statute does not imply that an indigent self-represented accused should necessarily be provided with funded legal aid. By his very choice to self-represent, he is asserting his ability to conduct his case without legal assistance and therefore "must accept responsibility for the disadvantages this choice may bring".[2] […]]

16. The Krajišnik Appeal Decision recognised that “[t]o the extent that the Registry requires or encourages indigent self-representing accused to coordinate their defences through designated legal associates”, it “should adequately reimburse the legal associates for their coordinating work and for related legal consultation.”[1] However, it concluded that “[s]uch funding should not be comparable to that paid to counsel for represented accused (particularly since work such as the drafting of written filings should be considered the responsibility of the self-representing accused)”.[2] While the Krajišnik Appeal Decision does contemplate the provision of legal consultation by a legal associate, it makes clear that this is not to be equated with the comprehensive work of counsel which is to be undertaken by the accused himself. The mere fact that a legal associate may provide legal consultation does not necessarily imply that he or she will undertake the functions and tasks for which counsel is normally responsible. Indeed, much of the work undertaken by legal assistants in a regular defence team, such as researching and preparing memoranda on legal issues, could fall within the meaning of legal consultation yet their role is to support and assist the assigned counsel.

17. While the provision of legal consultation would normally imply that a legal associate be either admitted to practice law in a state or be a university professor of law, it does not a priori require that the legal associate possess the full expertise and experience required under Rule 45 of the Rules. Indeed, the Krajišnik Appeal Decision stated that “[t]he Registry may impose additional criteria on designated legal associates who seek funding from the Tribunal (comparable to the Registry’s ability to require that Tribunal-funded counsel meet the requirements of Rule 45 of the Rules as well as of Rule 44 of the Rules)”[3] but it did not require the Registry to do so.

18. The Remuneration Scheme which followed from the Krajišnik Appeal Decision does in fact require that legal associates be “a member of the Association of Defence Counsel Practicing before the ICTY” (“ADC”).[4] Such membership requires that applicants “possess at least seven years of relevant experience, whether as a judge, prosecutor, attorney or in some other capacity, in criminal proceedings.”[5] On its face this requirement implies that a legal associate must possess experience comparable to that of assigned counsel, thereby suggesting that if this is a comparable minimum experience requirement, such a legal associate should in fairness be compensated comparably to an assigned counsel. However, experience alone does not determine the rate of pay; the functions and tasks undertaken are also important as is the level of responsibility assumed. For example, the Appeals Chamber notes that the Directive on the Assignment of Defence Counsel contemplates the possibility of legal assistants with 10 years or more of experience.[6] A legal assistant with such experience could thus be considered to have comparable experience to counsel but is not paid at the same rate of pay as counsel because he or she fulfils a different function on the defence team.

20. In any event, contrary to the Appellant’s arguments, the rationale for the ADC membership requirement does not appear to be a reflection on the type of work and tasks expected to be undertaken by legal associates. As noted by the Trial Chamber, this is further supported by the fact that the Registrar has demonstrated flexibility in the application of the Remuneration Scheme, in particular with regard to the qualification requirements under of the Remuneration Scheme.[7]

23. The Krajišnik Appeal Decision is not explicit as to whether it was referring to the volume or the rate of pay when it concluded that legal associates’ pay “should not be comparable to that paid to counsel for represented accused” and left open what would constitute adequate reimbursement.[8] However, the Appeals Chamber recalls that it has already concluded that there was no error in the Trial Chamber’s finding that the Krajišnik Appeal Decision did not require the Registrar to fund “high-level” assistants[9] particularly given the Krajišnik Appeal Decision’s finding that “where an accused elects to self-represent, he is asserting his ability to conduct his case without legal assistance [...]”.[10] With regard to the Appellant’s submission that “even if an accused assumes full responsibility for written filings, there are hundreds of other tasks which […] require the expertise of experienced lawyers”[11], the Appeals Chamber considers that the Krajišnik Appeal Decision’s reference to the Appellant drafting his own written filings was merely an example of the many tasks he is expected to undertake himself given his choice to be self-represented. While the Appeals Chamber acknowledges that by reason of his detention there are certain tasks normally undertaken by counsel which he will not be able to complete himself, in general a self-represented accused is expected to undertake all the tasks normally assumed by counsel. Acknowledgement of an appellant’s disadvantage based on his detention can reasonably be understood as one of the reasons for the provision of legal associates, but should not be confused with the role of counsel. In light of these findings, the Appeals Chamber concludes that the Appellant has failed to show that it was unreasonable for the Trial Chamber to conclude based on the Krajišnik Appeal Decision that the Registry was not required to pay legal associates at the same rate as counsel for a represented accused.

Paragraphs 40 and 41 dealt with the issue of whether a self-represented accused is entitled to legal aid. In accordance with past practice, the Appeals Chamber held that an accused faces a binary choice of either self-representing or availing himself of legal aid.

40. In the Appeals Chamber's view, Article 21(4)(d) of the Statute does not support the proposition than an accused who elects to self-represent is nonetheless entitled to legal aid. Article 21(4)(d) gives the accused the right “to defend himself in person or through legal assistance of his own choosing”. We have held that these two options stand in “binary opposition”.[1] An accused who chooses to self-represent is not entitled to legal assistance. Hence, he is not entitled to the subsidiary right mentioned later in Article 21(4)(d) to have legal assistance paid for by the Tribunal if he is indigent.

41. The question nonetheless remains whether some other provision of the Statute or source of law requires the Registry to provide an indigent self-representing accused with funded legal aid. Mr. Krajišnik suggests that the principle of equality referenced in Article 21(1) of the Statute and the fair trial rights referenced in Article 21(2) of the Statute have this effect.[2] The Appeals Chamber does not find these arguments convincing.  While Article 21(1) may require that accused in similar circumstances receive roughly comparable treatment, it does not require that an accused who opts for self-representation receive all the benefits held by an accused who opts for counsel. To the contrary, as “part of the choice to self-represent, Mr. Krajišnik must accept responsibility for the disadvantages this choice may bring”.[3] Moreover, the Appeals Chamber considers that where an accused elects to self-represent, he is asserting his ability to conduct his case without legal assistance and thus Tribunal funding for legal aid for him can be presumed to be unnecessary to the conduct of a fair trial. To the extent that the accused lacks the ability to conduct his own case and his self-representation is thus “substantially and persistently obstructing the proper and expeditious conduct of his trial”, then the remedy is restriction of his right to self-representation.[4]  To allow an accused to self-represent and yet also to receive full legal aid funding from the Tribunal would, as the saying goes, let him have his cake and eat it too.

The Appeals Chamber found that funding of legal associates presented a slightly different situation and that funding for such associates should be available.

42. [T]he Appeals Chamber considers whether Article 21(4)(b) of the Statute requires the Tribunal to provide some funding for the legal associates of self-represented accused.  The Appeals Chamber agrees with the Registry that the term “facilities” in Article 21(4)(b) does not normally encompass legal assistance. Nonetheless, the Appeals Chamber considers that in seeking otherwise to give effect to Article 21(4)(b) for a self-represented accused, the Registry has relied heavily on the concept of designated legal associates. To the extent that the Registry requires or encourages indigent self-representing accused to coordinate their defences through designated legal associates, it is appropriate for the Tribunal to provide some funding for such associates. Such funding should not be comparable to that paid to counsel for represented accused (particularly since work such as the drafting of written filings should be considered the responsibility of the self-representing accused), but nonetheless should adequately reimburse the legal associates for their coordinating work and for related legal consultation.

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RECALLING the Remuneration Policy, which provides that “[f]or the purpose of this Policy, the [Mechanism] shall recognise the determination of indigency of an Accused made by the ICTR and the ICTY, unless new information is obtained which establishes that the Accused has sufficient means to remunerate Counsel”;[1]

NOTING that this provision of the Remuneration Policy addresses only a situation where a determination was made that an accused person is indigent, as is clear from the last part of the provision which refers to “new information” establishing that the accused person “has sufficient means” to remunerate counsel, not a situation where the determination was that an accused person is not indigent;

CONSIDERING, therefore, that the Remuneration Policy does not require the Registry to recognise a determination made by the ICTY that an accused is able to contribute to the costs of his defence in part;

33.     […] I first note that the neither the Directive nor the Rules require the Registrar to provide Praljak with an itemized specification of the expenses he is required to reimburse the Tribunal. Nevertheless, I am of the view that an accused should have access to a detailed account of the costs he is expected to reimburse, if so requested. As Praljak has now requested such an itemization, I consider it reasonable that the Registrar provide him with one. […]

[…]

39. Finally, turning to the Registrar’s authority to order the reimbursement of legal aid provided to Praljak, I recall that Rule 45(E) of the Rules provides that:

[w]here a person is assigned counsel and is subsequently found not to be lacking the means to remunerate counsel, the Chamber may, on application by the Registrar, make an order of contribution to recover the cost of providing counsel.[1]

In this regard, I observe that the Decision on Means states that the Registrar “decides that the Accused shall reimburse the Tribunal […] and directs the Accused to do so promptly”.[2] A plain reading of the Decision on Means reflects that the Registrar ordered Praljak to reimburse the Tribunal for the amount owed. While this may constitute “Registry practice” to avoid “unnecessary motion practice”,[3] the Registrar’s order contravenes the clear wording of Rule 45(E) of the Rules, which requires the Registrar to apply to the relevant chamber, which may then make an order of contribution to recover the cost of providing counsel. I therefore consider that the Registrar exceeded his authority by ordering Praljak to reimburse the Tribunal, rather than applying to the relevant chamber. […]