Review of a decision linked to an impugned decision

Notion(s) Filing Case
Decision on Assignment of Counsel No 2 - 08.12.2006 ŠEŠELJ Vojislav

The Appeals Chamber noted that although the decision of the Trial Chamber to assign standby counsel was not specifically at issue in the given appeal, the decision was “inextricably linked” to the Impugned Decision.  The Appeals Chamber determined that it must consider whether the Trial Chamber erred in interpreting its decision restoring Šešelj’s right to self-representation.

20.     […] While the decision of the Trial Chamber to assign standby counsel was not certified for appeal by the Trial Chamber, the two decisions are inextricably linked.[1]  It was because of the decision of the Trial Chamber to immediately impose standby counsel and Šešelj’s inability to find an avenue to legally challenge that decision before the Trial Chamber that he was placed on a collision course with the Trial Chamber leading to the Trial Chamber’s issuing of the Impugned Decision.  In this respect, while the Tribunal’s jurisprudence limits the Appeals Chamber to examining whether the Trial Chamber erred in issuing the Impugned Decision, such a review in this appeal would not resolve the real issue of dispute between Šešelj and the Trial Chamber. 

24.     While the Appeals Chamber has acknowledged that the Decision to Assign Standby Counsel is not the Impugned Decision before it, it must also acknowledge that its decision restoring the right of Šešelj to self-representation was not clear as to whether the restoration of that right to self-representation allowed the Trial Chamber to restore the status quo by immediately reassigning standby counsel, following the Appeal Decision without establishing any obstructionist conduct on the part of Šešelj. 

25.     If the Appeals Chamber was to ignore the background to the Impugned Decision and apply the applicable law and the standard of review to the Impugned Decision, it would find no error on the part of the Trial Chamber in ordering the imposition of assigned counsel.  As the test makes clear, all that must be established is that the disruptive behaviour of the Accused “is substantially and persistently obstructing the proper and expeditious conduct of his trial” and it does not matter whether that conduct is intentional or unintentional. […] In this particular case, what must and also can be considered by the Appeals Chamber is whether the Trial Chamber erred in the interpretation of its decision restoring Šešelj’s right to self-representation.  […]

[1] Cf. United States v. Philip Morris USA Inc., 396 F.3d 1190, 1196 (D.C. Cir. 2005) (observing that “questions logically antecedent and essential to the order under review” fall within the jurisdiction of a court of appeals in reviewing an order certified for interlocutory appeal).   

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