Personal intervention of an accused alongside the counsel

Notion(s) Filing Case
Decision on Examination of Witnesses - 11.09.2008 PRLIĆ et al.

19. The Appeals Chamber has already held that when an accused is effectively represented by counsel, it is, in principle, for the counsel to conduct the examination of witnesses.[1] It has however recognized that Trial Chambers may, under exceptional circumstances, authorize an accused to participate in the examination in person.[2] It has also been established that the Trial Chambers are entitled under Rule 90(F) of the Tribunal’s Rules of Procedure and Evidence (“Rules”) to exercise control over the manner in which such examination is conducted,[3] including ensuring that it “is not impeded by useless and irrelevant questions”.[4]

20. […] In these circumstances, the real issue currently before the Appeals Chamber is whether the Trial Chamber committed a discernable error in defining those “exceptional circumstances” by providing its clarification of the term “specific expertise”.

21. […] The Appeals Chamber reiterates that it is within the Trial Chamber’s discretionary power to define the circumstances under which it can allow the Appellant to intervene in the examination of witnesses. However, it did not need, at this stage of the proceedings, to further restrict the criteria that would apply to all his future requests for personal intervention. Although the Trial Chamber based its decision on its experience concerning previous interventions of the Appellant, the Appeals Chamber considers that the Trial Chamber should have allowed more flexibility for its assessment of the notion of specific expertise and perform such assessment on a case-by-case basis when faced with a specific request. The approach taken by the Trial Chamber could potentially lead to violation of the Appellant’s rights under Article 21 of the Statute and thus constitutes an abuse of discretion.

22. Moreover, the Appeals Chamber emphasizes that both Guideline C (as amended by the Trial Chamber’s Decision of 10 May 2007) and Guideline 1 refer to “exceptional circumstances” which relate in particular to the events in which the Appellant participated personally or issues falling within his specific expertise, and should therefore not be read as restricting those circumstances to these two scenarios.[5] Indeed, various other circumstances may still arise during the proceedings which may justify the Appellant’s participation in the examination.[6]

[1] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement (“Nahimana et al. Appeal Judgement”), para. 267 and fn. 651; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Scheduling Order, 16 November 2006, pp. 3-4; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Hassan Ngeze’s Motions Concerning Restrictive Measures of Detention, 20 September 2006 (confidential), p. 7: “Article 20(d) of the Statute provides for an alternative between the right to self-representation and the right to legal assistance, but does not entitle an accused or an appellant who has a counsel assigned to him/her to choose at whim when to accept or not his/her counsel’s advice” (footnotes omitted).

[2] Appeals Chamber’s Decision of 24 August 2007 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.5, Decision on Praljak’s Appeal of the Trial Chamber’s 10 May 2007 Decision on the Mode of Interrogating Witnesses, 24 August 2007], paras 9, 11, 13; Nahimana et al. Appeal Judgement, paras 267, 269-270, 274, 276.

[3] Rule 90(F) of the Rules provides:

         “The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to

(i) make the interrogation and presentation effective for the ascertainment of the truth; and

(ii) avoid needless consumption of time.”

[4] Nahimana et al. Appeal Judgement, paras 182, 270 ; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003, paras 45, 99, 102; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Appeal Judgement, 1 June 2001, para. 318.

[5] Recalling the Trial Chamber’s Decisions of 10 May 2007 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on the Mode of Interrogating Witnesses, 10 May 2007] and 24 April 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision Adopting Guidelines for the Presentation of Defence Evidence, 24 April 2008], the French original of the Impugned Decision reads “[…] dans des circonstances exceptionnelles notamment liées, soit à l’examen d’événements auxquels un Accusé a personnellement participé, soit à l’examen de questions au sujet desquelles il possède des compétences spécifiques” (p. 2, emphasis added). The English translation however erroneously reads “[…] under exceptional circumstances linked either to the examination of events in which an Accused personally took part or to the examination of issues about which he has specific expertise”.

[6] Cf. Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-T where the Trial Chamber allowed Momčilo Krajišnik to put questions to witnesses as “an experiment” to consider whether or not to allow him to represent himself (T. 13439; T.17205). See also Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T where the Trial Chamber accorded Hassan Ngeze the permission to cross-examine witnesses (under the control of the Chamber) as a temporary measure pending the consideration of his request for the withdrawal of his counsel (T. 15 May 2001, pp. 95-96); or – on a different occasion – allowed him to put additional questions to the witness through the Chamber on the basis of – otherwise unidentified – exceptional circumstances, provided that the questions were relevant and admissible (T. 27 November 2001, pp. 1-8); or allowed Hassan Ngeze to sit next to his Co-Counsel so as to participate actively in the cross-examination (T. 4 July 2002, pp. 3-12). The Appeals Chamber has found no error in the approach taken by the latter Trial Chamber (Nahimana et al. Appeal Judgement, paras 266-276).

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ICTR Statute Article 20(4)(e) ICTY Statute Article 21(4)(e) ICTR Rule Rule 90(F) ICTY Rule Rule 90(F)
Notion(s) Filing Case
Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo

119. As noted above,[1] the Trial Chamber exceptionally and temporarily allowed Krajišnik to supplement his Counsel’s cross-examination with his own questions to the witness pending final decision on his request to self-represent.[2] The Appeals Chamber is of the view that the Trial Chamber acted within its discretion in doing so. The Appeals Chamber has already recognised that an accused represented by counsel may in certain circumstances directly put questions to a witness, subject to the Trial Chamber’s supervision.[3] In the Appeals Chamber’s opinion, the circumstances at hand (the pending request to self-represent) made it appropriate to allow Krajišnik to put questions to the witnesses after the cross-examination of Counsel. The Appeals Chamber further notes that the Trial Chamber explicitly warned Krajišnik of the risks connected with taking an active role in cross-examinations.[4] In the circumstances, the Appeals Chamber is not persuaded that Amicus Curiae has shown that the Trial Chamber’s decision rendered the trial unfair. The only concrete prejudice alleged by Amicus Curiae concerns Krajišnik’s handling of the cross-examination of Witness Davidović,[5] but he does not provide any reference in this regard and the Appeals Chamber can not thus assess this contention.

[1] See supraIII.A.1.

[2] Trial Judgement, para. 1245. This practice was extended even after Krajišnik’s request for self-representation was denied: the Trial Chamber allowed Krajišnik a limited role in complementing his Counsel’s examination-in-chief of Defence witnesses, subject to the Trial Chamber’s supervision (T. 17205-17206; Trial Judgement, para. 1246). Amicus Curiae does not seem to argue that the Trial Chamber erred in doing so. In any case, the Appeals Chamber can see no error in this, for the reasons given below.

[3] Prosecutor v. Jandranko Prlić et al., Case No. IT-04-74-AR73.5, Decision on Praljak’s Appeal of the Trial Chamber’s 10 May 2007 Decision on the Mode of Interrogating Witnesses, 24 August 2007. See also Nahimana et al, Appeal Judgement, para. 267; Prosecutor v. Jandranko Prlić et al., Case No. IT-04-74-AR73.11, Decision on Slobodan Praljak’s Appeal of the Trial Chamber’s Decision on the Direct Examination of Witnesses Dated 26 June 2008, 11 September 2008, para. 22.

[4] T. 13440:

[…] your lack of legal experience means that there is a serious risk that you’ll damage your position. You should be aware that if you inadvertently damage your position through questioning witnesses, that it's something you shall have to live with. The Chamber therefore strongly advises you to consult your assigned counsel about any line of questioning you wish to pursue.

[5] Amicus Curiae’s Reply, para. 24.

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