248. The Appeals Chamber does not agree with the Trial Chamber in this regard. The difficulties in assigning the Appellant counsel in this case should not have been an obstacle for the Tribunal to ensure that the Appellant’s initial appearance was scheduled without delay. The Appeals Chamber agrees with the Prosecution that it is important and indeed ideal for an accused to have the assistance of counsel at the initial appearance to provide guidance, in particular, for entering a plea. Furthermore, the Appeals Chamber considers that Rule 62(A)(i) states that at the initial hearing, the Trial Chamber or Judge shall “[s]atisfy itself or himself that the right of the accused to counsel is respected.” In addition, the Trial Chamber or Judge could ordered assignment of duty counsel to the Appellant for purposes of representation at the initial appearance and would have had the opportunity to facilitate the Registry’s further attempts to assign the Appellant counsel.

249. Furthermore, the Appeals Chamber notes that apart from the assignment of counsel issue and the Appellant’s role in creating delay, the Registry conceded that in this case, the initial appearance was also delayed in part due to the fact that the Appellant had been jointly indicted with several other accused. It was difficult at the time for the Tribunal’s Court Management Section to find a date acceptable to all, with all being duly represented by counsel.[1]

250. The Appeals Chamber emphasizes that Rule 62 is unequivocal that an initial appearance is to be scheduled without delay. There are other purposes for an initial appearance apart from entering a plea including: reading out the official charges against the accused, ascertaining the identity of the detainee,[2] allowing the Trial Chamber or Judge to ensure that the rights of the accused while in detention are being respected, giving an opportunity for the accused to voice any complaints, and scheduling a trial date or date for a sentencing hearing, in the case of a guilty plea, without delay.[3] The Appeals Chamber therefore finds that, under the plain meaning of Rule 62, the 211-day delay between the Appellant’s transfer to the Tribunal and the initial appearance before a Judge of this Tribunal constitutes extreme undue delay.

See paragraph 70 of the decision.

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49. The Appeals Chamber considers that the circumstances of this case differ from the situation in the Kajelijeli case, in which the Appeals Chamber found that the delay in the holding of the initial appearance was attributable to the Tribunal notwithstanding any attribution of fault to Kajelijeli.[1] Unlike in Ntahobali’s case, Kajelijeli’s initial appearance was held 211 days after his transfer to the Tribunal as a result of difficulties in assigning him a counsel, the Registrar’s failure to assign a duty counsel, and the Registry’s difficulties in finding a date acceptable to all counsel representing Kajelijeli’s co-indicted.[2] Further, unlike Kajelijeli, Ntahobali was given the opportunity to enter his plea on 3 September 1997 but preferred to wait for his assigned counsel. The Appeals Chamber considers that when, like in Ntahobali’s case, the counsel for an accused explicitly requests the date of the initial appearance to be postponed and the accused expresses his preference for entering his plea in the presence of his assigned counsel rather than entering it at an earlier opportunity, the delay caused by the postponement of the initial appearance is not attributable to the Tribunal.[3]