Proportionality principle

Notion(s) Filing Case
Decision on Assignment of Counsel - 01.11.2004 MILOŠEVIĆ Slobodan

16. The Appeals Chamber parts ways with the Trial Chamber, however, in its assessment of the Order on Modalities.[1]  In spelling out the future working relationship between Milošević and Assigned Counsel, the Order sharply restricts Milošević’s ability to participate in the conduct of his case in any way.  The Order makes his ability to participate at all contingent on a case-by-case, discretionary decision by the Trial Chamber.[2]  It implies that he would only occasionally – “where appropriate” – be permitted to examine witnesses.[3]  And it indicates that, even where he is permitted to examine a witness, he may do so only after Assigned Counsel had already completed their examination.  In every way, then, the Order relegates Milošević to a visibly second-tier role in the trial.

17. These sharp restrictions, unfortunately, were grounded on a fundamental error of law: the Trial Chamber failed to recognize that any restrictions on Milošević’s right to represent himself must be limited to the minimum extent necessary to protect the Tribunal’s interest in assuring a reasonably expeditious trial.  When reviewing restrictions on fundamental rights such as this one, many jurisdictions are guided by some variant of a basic proportionality principle:  any restriction of a fundamental right must be in service of “a sufficiently important objective,” and must “impair the right . . . no more than is necessary to accomplish the objective.”[4] Similarly, while the International Covenant on Civil and Political Rights allows some restriction of certain civil rights where “necessary to protect national security, public order (ordre public), public health or morals, or the rights and freedoms of others,”[5] the United Nations Human Rights Committee has observed that any such restrictions “must conform to the principle of proportionality; . . . they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.”[6]  And the ICTY itself has been guided by a “general principle of proportionality” in assessing defendants’ suitability for provisional release, noting that a restriction on the fundamental right to liberty is acceptable only when it is “(1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target.”[7]

18. The Appeals Chamber considers that a proportionality principle of this sort was clearly called for here.  The excessiveness of the Trial Chamber’s restrictions is apparent for at least three reasons:  (1) the medical reports relied on by the Trial Chamber explicitly rejected the notion that Milošević’s condition is permanent;[8] (2) there was no evidence that Milošević had suffered from any health problems since late July; and (3) Milošević made a vigorous two-day opening statement without interruption or apparent difficulty.  Despite these indications of possible improvement in Milošević’s condition, however, the Trial Chamber failed to impose a carefully calibrated set of restrictions on Milošević’s trial participation. Given the need for proper respect of a right as fundamental as this one, this failure was an improper exercise of the trial court’s discretion.[9]

[1] We are unconvinced by the Prosecution’s contention that the propriety of this Order is not fairly encompassed within the question certified for review.  See Prosecution Motion to Strike Ground of Appeal (3) from Assigned Counsel “Appeal Against the Trial Chamber’s Decision on Assignment of Defence Counsel,” 5 October 2004.  The Trial Chamber’s decision to assign counsel cannot be understood without reference to its explanation of what, practically speaking, that assignment entails; indeed, the Reasons for Assigning Counsel itself reproduces all relevant portions of the Order on Modalities.

[2] Order on Modalities [Order on the Modalities to be Followed by Court Assigned Counsel, 3 September 2004], pp. 2-3.

[3] Order on Modalities, pp. 2-3.

[4] Elloy de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands, and Housing, 1 A.C. 69 (1998) (United Kingdom Privy Council) (striking down a restriction on civil servants’ right to demonstrate) (citing Zimbabwean, South African, and Canadian jurisprudence); see also, e.g., McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003) (United States Supreme Court) (finding that a campaign finance law must not restrict the right to free speech substantially more than the extent necessary to advance the state’s interest in preventing electoral corruption); Chassagnou v. France, 29 E.H.R.R. 615 (2000) (European Court of Human Rights) (holding that only “indisputable imperatives” can justify restrictions on a right protected by the European Convention on Human Rights, and even then only if the restrictions are a “necessary” and “proportionate” means of advancing the state objective) (striking down French law requiring rural landowners to make their land available to hunters); Edmonton Journal v. Alberta, 1989 CarswellAlta 198 (Canadian Supreme Court) (holding that a statute restricting the publication of information about divorce proceedings must impair the right to freedom of expression no more than strictly necessary to protect personal privacy).

[5] International Covenant on Civil and Political Rights, Article 12, para. 3.

[6] Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,  HRI/GEN/1/Rev.6, 12 May 2003, p. 176 (“The application of restrictions in any individual case must . . . meet the test of necessity and the requirements of proportionality.”).

[7] Prosecutor v. Limaj, Case No. IT-03-66-AR65, 31 October 2003, para. 13 (three-judge bench of the Appeals Chamber).

[8] The doctors explicitly concluded that Milošević is not “unfit by any permanent condition,” but rather “has shown himself by the history to be periodically, but now somewhat regularly unfit.”  Hearing, 30 September 2004, T.27029.

[9] The Prosecution proposes that we uphold the entirety of the Trial Chamber’s order on alternate grounds:  specifically, that Milošević practiced a premeditated policy of deliberate obstructionism by engaging in disruptive courtroom behavior as well as by sabotaging his medication regimen to artificially induce periods of poor health.  While intentional obstructionism of this kind, in principle, might well justify the imposition of counsel on an unwilling defendant, the Trial Chamber explicitly declined to make any factual findings on this score.  Opinion Assigning Counsel, para. 67.  It is rarely appropriate for an Appeals Chamber to make the first assessment of complicated, fact-intensive evidence on an interlocutory appeal (particularly as to evidence that turns in part on an in personam assessment of the intangibles of courtroom demeanor), and we decline to do so here.

Download full document
ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav

The Appeals Chamber reaffirmed the validity of the proportionality principle as stated in the Milošević Decision on Defence Counsel.[1] In restricting the accused’s right to self-representation, the Trial Chamber must impose restrictions that are limited to the minimum extent necessary to protect the International Tribunal’s interest in assuring a reasonably expeditious trial.[2]

[1] Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004 (“Milošević Decision on Defence Counsel”).

[2] Decision, para. 48. The principle was first expressed in the Milošević Decision on Defence Counsel,para. 17.

Download full document
Notion(s) Filing Case
Decision on Motion to Vacate Appointment of Counsel - 12.02.2010 KARADŽIĆ Radovan

26. The fundamental issue underlying the Appeal is the relation between Article 21(4)(d) of the Statute and the Trial Chamber’s appointment of standby counsel to Karadžić. Article 21(4) of the Statute reads, in relevant part:

In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(d) […] to defend himself in person or through legal assistance of his own choosing […]

By their ordinary meaning, the rights provided for in Article 21(4)(d) of the Statute “stand in binary opposition”.[1] Accordingly, Article 21(4)(d) of the Statute does not provide an accused with the minimum guarantee of both the right to self-represent and the right to counsel of his own choosing; only the right to one or the other. Karadžić has elected to remain self-represented[2] and thus does not enjoy any rights that are derived from choosing to be represented by legal counsel.[3]

27. Karadžić’s contention that he should be accorded the rights of those who choose to be represented by legal counsel because the Trial Chamber has signalled its intention to override his election to self-represent is unpersuasive. The jurisprudence of the Tribunal establishes that the right to self-represent is not absolute and may be subject to certain limitations.[4] A Trial Chamber may restrict the right to self-representation in appropriate circumstances where “a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial”.[5] It is under this rubric of curtailing Karadžić’s right to self-representation that the Trial Chamber issued its Decision on Appointment of Counsel.[6] If the Trial Chamber ultimately decides to assign counsel to represent Karadžić’s interests at trial, it will not be because the Trial Chamber is recognizing a voluntary decision on behalf of Karadžić to cease his self-representation. Instead, it will be because the Trial Chamber has found that Karadžić’s persistent obstructive behaviour has made it necessary, in the interests of justice, to limit his right to self-representation by assigning counsel to represent his interests.

28. […] The text and structure of the Directive, Rules and Article 21 of the Statute confirm that the Directive does not apply to individuals who have chosen to self-represent. The Preamble of the Directive explicitly references Article 21 of the Statute, which encompasses the binary opposition of self-representation and appointment of counsel. In addition, the Directive’s text emphasizes that its focus is on the process of providing “legal assistance to indigent suspects or accused”. It also references Rule 45 of the Rules, which again focuses on the assignment of counsel to indigent suspects and accused. Self-represented individuals, whose ability to pay for counsel is by definition irrelevant, do not fall within its compass. By contrast, assignment of counsel to self-represented individuals is addressed by Rule 45ter of the Rules, which is not within the Directive’s scope.

29. Insofar as the Registrar took guidance from certain provisions of the Directive, his exercise of discretion did not render the Directive’s procedures binding on him with regard to the appointment of standby counsel for Karadžić.[12] As the Trial Chamber correctly noted, “there exists no specific set of guidelines to be followed by the Registrar” in relation to the appointment of counsel to represent the interests of an obstructive self-represented accused.[13] Considering related legal authorities in developing a procedure to select standby counsel, where such procedures were not outlined in any binding manner ex ante, was well within the Registrar’s discretion, and did not render those legal authorities binding.

[1] Krajišnik Decision [Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Krajišnik Request and on Prosecution Motion, 11 September 2007], para. 40 (internal quotation omitted). See also Milošević Decision, para. 11. Cf. Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Scheduling Order for Appeals Hearing and Decision on Hassan Ngeze’s Motion of 24 January 2006, 16 November 2006, p. 3 (addressing Article 20(4)(d) of the Statute of the International Criminal Tribunal for Rwanda, which tracks Article 21(4)(d) of the Statute).

[2] Karadžić was provided the opportunity to choose whether to represent himself or be represented by counsel and chose to represent himself. Status Conference, T. 43, 17 September 2008. Karadžić currently retains and is exercising his right to self-representation. See Decision on Appointment of Counsel [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], para. 25.

[3] See 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. Rights Karadžić does not enjoy include, inter alia, the right to communicate with counsel of one’s own choosing guaranteed under Article 21(4)(b) of the Statute.

[4] Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, para. 8, citing Miloševic Decision, paras 12-13.

[5] Milošević Decision, para. 13.

[6] Decision on Appointment of Counsel, paras 21, 25, 28.

[7] Directive [Directive on the Assignment of Defence Counsel, IT/73/Rev. 11, 11 July 2006], p. 4. See also supra, para. 26.

[8] Directive, Article 1(A).

[9] Id.

[10] Rule 45ter of the Rules provides that: “The Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused”.

[11] Article 2 of the Directive defines “Counsel” as “a person representing or eligible to represent a suspect or accused pursuant to Rules 44, 45 and 45 bis of the Rules”. Further evidence that Karadžić’s situation does not fall under the purview of the Directive is found in the Decision on Appointment of Counsel. This decision to order the Registrar to appoint standby counsel was rendered not pursuant to Rule 45 of the Rules and the Directive, but instead pursuant to Rule 54 of the Rules, which allows Trial Chambers to issue various orders related to the preparation and conduct of a trial. See Decision on Appointment of Counsel, para. 28.

[12] Cf. Krajišnik Decision, fn. 100, quoting Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, para. 18 (finding that although Krajišnik was not entitled as of right to amicus curiae counsel, such appointment was warranted under the circumstances).

[13] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on the Accused’s Motion to Vacate Appointment of Richard Harvey, 23 December 2009 (“Impugned Decision”), para. 30. 

Download full document
ICTR Statute Article 19(1);
Article 20(4)(d)
ICTY Statute Article 20(1);
Article 21(4)(d)
ICTR Rule Rule 45;
Rule 45 ter
ICTY Rule Rule 45;
Rule 45 ter
Other instruments Directive on the Assignment of Defence Counsel (ICTY).