The Appeals Chamber upheld in this decision another principle which had been laid down Milošević: the accused before the International Tribunal have the presumptive right to represent themselves notwithstanding a Trial Chamber’s judgement that they would be better off if represented by a counsel.[1]

The Appeals Chamber recalled that Article 21(4)(d) of the Statute provides the accused before the International Tribunal with the presumptive right of self representation. However, this right is not absolute and can be restricted where a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.[1] The right of  self-representation can be restricted irrespectively from the actual intention of the accused to obstruct the proceedings.[2] The Appeals Chamber recalled that, for the right to self-representation to be restricted, it is upon the Trial Chamber to decide

“Whether the appropriate circumstances exist and what they are is a matter for the Trial Chamber to determine on a case by case basis when considering the particular facts of a case as a whole.”[3]

In view of this principle, the Appeals Chamber affirmed that the Trial Chamber, in order to assign a Counsel to an accused who chose to self-represent himself, did not have to find that the accused’s behaviour the Trial Chamber had been “extremely disruptive to the point of rendering continuation of the proceedings practically impossible” but that “[a]ll that the Trial Chamber was required to do was find that appropriate circumstances, rising to the level of substantial and persistent obstruction to the proper and expeditious conduct of the trial exist, thereby warranting restriction of Šešelj’s right to self-representation.”[4]

The Appeals Chamber examined whether the Appeal Decision which re-instated Šešelj’s presumptive right to self-representation allowed the Trial Chamber to immediately assign standby counsel, in light of the fact that the Appeal Decision did not specifically note the extent of the Trial Chamber’s discretion in this matter.  The Appeals Chamber concluded that the imposition of standby counsel by the Trial Chamber had the practical effect of undermining the Appeal Decision.

19.     […] Article 21(4) of the Statute of the International Tribunal.  Article 21(4)(d) of the Statute grants the right of an accused “to defend himself in person or through legal assistance of his own choosing”  The jurisprudence of this Tribunal has interpreted this provision of Article 21 as providing an accused with “the presumptive right to self-representation”.[1]  However, a presumptive right to self-representation does not translate into an absolute right and there are circumstances in which this right may be curtailed.  Of relevance to this appeal, a Trial Chamber may place restrictions on the right of an accused to self-representation where “a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial”.[2]

20.     The Appeals Chamber has already indicated […] what it considers to  be the real issue for it to determine […], whether the Appeal Decision, wherein Šešelj’s right to self-representation was re-instated, allowed the Trial Chamber to immediately order the assignment of standby counsel without establishing any persistent or obstructionist behaviour on his part.  Šešelj’s view is that it did not and it is in light of that view that Šešelj has undertaken action, which resulted in the Trial Chamber determining that it had the right to impose Counsel in the Impugned Decision.  […]

22.     […] [I]t would have been better if the Appeals Chamber in returning to Šešelj the right to self-representation would have made clearer what it considered that to mean with respect to the discretion on the part of the Trial Chamber to immediately impose standby counsel with a right to jump in and take over the proceedings in the circumstances identified by the Trial Chamber in its Decision to Assign Standby Counsel. This is particularly so given that the Appeals Chamber was made abundantly aware of Šešelj’s opposition to standby counsel during his pre-trial proceedings.

23.     […] Having just had its decision on the assignment of counsel overturned on appeal the Trial Chamber viewed [imposing standby counsel] as a necessary move to preserve Šešelj’s right to a fair and expeditious trial in light of the history of proceedings in his case pre-trial.

24.     […] The Appeals Chamber […] must […] 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.  The Appeals Chamber notes that standby counsel is not assigned counsel, and there are clear limits on the ability of standby counsel to participate in the proceedings, including that such participation did depend upon the conduct of Šešelj.  However, the fact that the Registry appointed former assigned counsel to act as standby counsel following the Appeal Decision, and then following the protest by Šešelj to that appointment, the Trial Chamber ordered the reassignment of standby counsel to act as assigned counsel in the Impugned Decision[3]  further entrenched Šešelj’s belief that the Trial Chamber had not respected the right restored to him by the Appeals Chamber.  He was not given a clean slate by the Trial Chamber following the Appeal Decision.

26.     While the Appeals Chamber did not explicitly state that the Trial Chamber was prohibited from imposing standby counsel, the Appeals Chamber finds that the Trial Chamber decision to do so, immediately upon the issuing of its decision and without establishing any additional obstruction by Šešelj, did have the practical effect of undermining the practical implementation of that decision. 

11. Both the Trial Chamber and the Prosecutor recognize that defendants have a presumptive right to represent themselves before the Tribunal.  It is not hard to see why.  Article 21 of the ICTY Statute, which tracks Article 14 of the International Convention on Civil and Political Rights,[1] recognizes that a defendant is entitled to a basic set of “minimum guarantees, in full equality,” including the right “to defend himself in person or through legal assistance of his own choosing.”[2] This is a straightforward proposition:  given the text’s binary opposition between representation “through legal assistance” and representation “in person,” the Appeals Chamber sees no reasonable way to interpret Article 21 except as a guarantee of the right to self-representation.  Nor should this right be taken lightly.  The drafters of the Statute clearly viewed the right to self-representation as an indispensable cornerstone of justice, placing it on a structural par with defendants’ right to remain silent,[3] to confront the witnesses against them,[4] to a speedy trial,[5] and even to demand a court-appointed attorney if they cannot afford one themselves.[6]  In the words of the United States Supreme Court in Faretta v. California, which was recognized by the Trial Chamber as the classic statement of the right to self-representation,[7] an “unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction,” such that “counsel [becomes] not an assistant, but a master.”[8] Defendants before this Tribunal, then, have the presumptive right to represent themselves notwithstanding a Trial Chamber’s judgment that they would be better off if represented by counsel.

12. While this right to self-representation is indisputable, jurisdictions around the world recognize that it is not categorically inviolable.  In Faretta itself, the United States Supreme Court noted that, since “[t]he right of self-representation is not a license to abuse the dignity of the courtroom,” a trial judge “may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.”[9]  Recognizing this same basic contingency of the right, England,[10] Scotland,[11] Canada,[12] New Zealand,[13] and Australia[14] have all developed the principle that, in order to protect vulnerable witnesses from trauma, courts may severely restrict the right of defendants to represent themselves in sexual assault trials.  Scotland goes so far as to forbid such defendants from conducting any portion of their defenses in person.[15] And while this Appellate Chamber has not previously passed on the question, existing precedent from contemporary war crimes tribunals is unanimous in concluding that the right to self-representation “is a qualified and not an absolute right.”[16]

13. Recognizing that a defendant’s right to represent himself is subject to some limitations, however, does not resolve this case.  It must further be decided whether the right may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.  The Appeals Chamber believes that, under the appropriate circumstances, the Trial Chamber may restrict the right on those grounds.  It is particularly instructive in this regard to consider the parallel statutory right of an accused before the Tribunal “to be tried in his [own] presence”[17] – a right that is found in the very same clause of the ICTY Statute as the right to self-representation.  Notwithstanding the express enunciation of this right in the Statute, Rule 80(B) of the Rules of Procedure and Evidence allows a Trial Chamber to “order the removal of an accused from the courtroom and continue the proceedings in the absence of the accused if the accused has persisted in disruptive conduct.”  If a defendant’s right to be present for his trial – which, to reiterate, is listed in the same string of rights and indeed in the same clause as the right to self-representation – may thus be restricted on the basis of substantial trial disruption, the Appeals Chamber sees no reason to treat the right  to self-representation any differently.

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.

Krajišnik insisted to represent himself in the appellate proceedings. The Appeals Chamber accepted this choice but assigned an amicus curiae (see Krajišnik Decision on Self-Representation). On 21 February 2008, Krajišnik filed a Motion in which he sought to have the upcoming status conference postponed from 1 March 2008 to 31 March 2008 and “engage the services of attorney Alan Dershowitz to assist him in the remaining phases of the appellate process, specifically limited to a brief on the subject of Joint Criminal Enterprise”.[1]

6. In the Appeals Chamber’s opinion, the situation presents something of a conundrum. On the one hand, Mr. Krajišnik has already elected to represent himself pursuant to the Appeals Chamber Decision permitting him to do so,[2] and as noted by the Appeals Chamber at the time, he “must accept responsibility for the disadvantages this choice may bring.”[3] On the other hand, the Appeals Chamber has recognized the existence of heightened concerns regarding the basic fairness of proceedings when a defendant has chosen to self-represent.[4] For this reason, amicus curiae was appointed “to assist the Appeals Chamber by arguing in favour of Mr. Krajišnik’s interests.”[5]

7. In the past the Tribunal has wrestled with the appropriateness of certain restrictions on the right to self-representation.[6] Here, the converse question arises: are there legitimate restrictions on the right of a self-represented defendant to hire a lawyer? The Appeals Chamber has held that the right of self-representation “may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.”[7] Such a standard is also apt in resolving the present issue. In this case, the Appeals Chamber notes that Mr. Krajišnik has long sought to engage the services of Mr. Dershowitz, and there is no reason to believe that Mr. Krajišnik has deliberately manipulated the situation in order to create unnecessary delays. Furthermore, the Appeals Chamber has discretion to call for an expedited briefing schedule and thereby avoid protracted proceedings.

8. There is also no incongruity in allowing partial self-representation, even though the Appeals Chamber has referred to self-representation and legal assistance as standing in “binary opposition”.[8] What the Appeals Chamber has prohibited is a situation whereby defendants can mix-and-match various elements of self-representation and legal assistance – e.g., when a self-represented accused has attempted to partake of legal aid funding.[9] A defendant must take the bitter with the sweet when making this choice, but only with respect to each issue. There is no fundamental reason why a defendant may not make different choices – self-representing or engaging legal counsel – with regard to different issues.

9. Although the Appeals Chamber has already benefited from the legal arguments advanced by Mr. Colin Nicholls as amicus curiae, Mr. Nicholls is not a party to the current proceedings and does not represent Mr. Krajišnik.[10] By contrast, Mr. Dershowtiz can present Mr. Krajišnik’s own arguments regarding a complex issue, Joint Criminal Enterprise (“JCE”), which the Appeals Chamber acknowledges might be too complex for a non-lawyer to master. Consequently, there is a strong presumption that, despite the late date, Mr. Krajišnik should be afforded the opportunity to present the most compelling case that he can. As long as Mr. Dershowitz’s involvement at this stage will not cause substantial or persistent obstruction or delays of the appeal proceedings, and provided he meets the requirements set out in Rule 44 of the Rules, the Appeals Chamber recognizes that Mr. Krajišnik may engage Mr. Dershowitz’s legal assistance regarding a discrete issue.

10. The Appeals Chamber appreciates that there might be a risk of redundancy and complication since amicus curiae has already advanced arguments regarding JCE, the issue that Mr. Dershowitz also intends to brief. Furthermore, there is a legitimate concern about not delaying proceedings that have already proved extremely time-consuming. The Appeals Chamber considers that these concerns can be allayed.

11. As to the risk that Mr. Dershowitz’s brief might add unnecessary confusion, it should go without saying that in the event of a contradiction between the submissions of amicus curiae and Mr. Dershowitz, the Appeals Chamber will treat only Mr. Dershowitz’s arguments as representing his client’s views. To avoid unhelpful complication, the Appeals Chamber directs Mr. Dershowitz to state with precision which arguments of amicus curiae he embraces and which arguments he rejects. Although Mr. Krajišnik has addressed the JCE issue in his Appeal Brief,[11] the Appeals Chamber will regard Mr. Dershowitz’s submission as a supplementary brief on behalf of Mr. Krajišnik.

12. Furthermore, the Appeals Chamber imposes a strict briefing schedule in order to prevent unnecessarily long or time-consuming submissions and thereby foster expeditious appeal proceedings. […] Given these parameters, the Appeals Chamber is convinced that Mr. Dershowitz can advance fully any additional arguments that Mr. Krajišnik wishes to make without causing undue delay in the appeal proceedings. The Appeals Chamber must emphasize that the current scheduling for the filing of briefs shall remain unaffected.

On 29 February 2008, the Prosecution filed a motion seeking clarification on the content of Mr. Dershowitz’s supplementary brief and the extent of Mr. Krajišnik’s continued self-representation and reconsideration of the applicable word limits.[12] In its Decision of 11 March 2008 (“Krajišnik Decision on Clarification of Alan Dershowitz Participation”), the Appeals Chamber granted the Motion in part and directed Mr. Dershowitz to as follows:

9. The Appeals Chamber has already described the purview of Mr. Dershowitz’s representation, which is limited to the question of JCE.[13] Additionally, in the Decision of 28 February 2008, the Appeals Chamber directed Mr. Dershowitz “to state with precision which arguments of amicus curiae he embraces and which arguments he rejects.”[14] The Appeals Chamber orders Mr. Dershowitz to do the same with respect to the arguments that Mr. Krajišnik has already made in his appeal brief. Mr. Dershowitz must be clear as to which of the arguments are new and the extent to which they complement or supersede those arguments made by Mr. Krajišnik. In short, because Mr. Dershowitz will be acting as counsel for Mr. Krajišnik, at least in a limited capacity, the two must speak with a single voice. The arguments that Mr. Dershowitz advances will thus make clear the issues on which Mr. Krajišnik is represented by counsel..[15]

The Appeals Chamber dismissed the Prosecution’s argument in relation to the applicable word limits on the basis that the principle of “equality of arms” had not been breached and that no actual prejudice had been demonstrated at that stage.[16]

8. When considering the Motion, the Appeals Chamber finds it appropriate to recall that it permitted Mr. Alan M. Dershowitz to advance arguments regarding the issue of JCE on behalf of the Appellant, because this issue “might be too complex for a non-lawyer to master”.[1] Furthermore, the Appeals Chamber “recognized the existence of heightened concerns regarding the basic fairness of proceedings when a defendant has chosen to self-represent”.[2] In light of this reasoning, the Appeals Chamber is satisfied that the Appellant should be granted the assistance of counsel on the matter of JCE in conducting the interview with Mr. Karadžić whose potential evidence will be primarily relevant for this issue. This is demonstrated inter alia by the numerous references to the relationship between the Appellant and Mr. Karadžić in the Trial Judgement of 27 September 2006.[3] The Appeals Chamber also finds that the conduct of the said interview by counsel on the matter of JCE is within the scope of the Order on Motion to Interview Radovan Karadžić in which it allowed the Appellant to speak to Mr. Karadžić in order to determine whether or not he wants to call him as a witness pursuant to Rule 115 of the Rules.[4] Such procedure is consistent with the Appeals Chamber’s heightened concerns for the fairness of proceedings against a self-represented accused.[5]

9. Having thus found that counsel on the matter of JCE can conduct the interview with Mr. Karadžić on behalf of the Appellant, the Appeals Chamber will now turn to the Appellant’s request to grant Mr. Nathan Dershowitz status of counsel. The Appeals Chamber is mindful of the fact that to date, he is registered as legal consultant to Mr. Alan M. Dershowitz, and not as co-counsel.[6] However, during the appeals hearing on 21 August 2008, Mr. Nathan Z. Dershowitz made oral submissions on the matter of JCE together with Mr. Alan M. Dershowitz, using part of the time allocated to the Appellant for submission of his oral presentation.[7] Consequently, the Appeals Chamber finds that it has already implicitly authorized Mr. Nathan Z. Dershowitz to act as de facto co-counsel on the matter of JCE together with Mr. Alan M. Dershowitz. Furthermore, the Appeals Chamber is satisfied that the Appellant has shown that Mr. Nathan M. Dershowitz is sufficiently familiar with the matters related to JCE to conduct the interview with Mr. Karadžić on this issue,[8] having already made oral submissions on the matter of JCE during the appeals hearing and having worked together with Mr. Alan M. Dershowitz on the matter.[9]

33. Privilege stems from the attorney-client relationship, as indicated in Article 21(4)(b) of the Statute and as set forth in Rule 97 of the Rules, which provides that all “communications between lawyer and client shall be regarded as privileged”. Where an accused has opted to self-represent instead of to have counsel represent him, the basis for the privilege is removed.  Mr. Krajišnik accordingly has no entitlement to privileged communications. Since the Registry has no obligation to provide him with privileged access to anyone, Mr. Krajišnik has no basis for objecting to the Registry's willingness to provide him with privileged access to up to three designated legal associates.

Article 21(4)(b) guarantees that an accused is entitled, inter alia, “to have adequate time and facilities for the preparation of his defense”. Paragraphs 35 and 36 provided some content to what this guarantee means for a self-represented accused on appeal.

35. The third issue is quantity of access. The Registry has authorized Mr. Krajišnik to have unlimited communications with any designated legal associates, and Mr. Krajišnik can contact all other persons (e.g., investigators) in accordance with standard procedures at the UNDU. When designated legal associates exist, this approach is a reasonable one. The unlimited access to the designated legal associates would provide Mr. Krajišnik with a conduit for exchanging appropriate information with other members of his team where time limitations (or other limitations) imposed by UNDU standard procedures impede direct exchange. This in turn would satisfy the requirement pursuant to Article 21(4)(b) of the Statute that an accused have “adequate time and facilities for the preparation of his defence”.

36. If no legal associates have been designated, however, then the Appeals Chamber has some concerns about the Registry's approach. In this situation, pursuant to the Registry's approach a self-represented accused is limited only to the standard UNDU procedures for communication with the outside. If these procedures do not provide a self-represented accused with sufficient opportunity to exchange appropriate information with team members outside the UNDU during the preparation of his case, then this may amount to a lack of "adequate time and facilities for the preparation of his defence" in violation of Article 21(4)(b) of the Statute […]. Nonetheless, the Appeals Chamber informs the Registry that in the event that no legal associates are designated, the Registry should ensure that Mr. Krajišnik has adequate means of communicating with his defence team while he is preparing his appeal brief and his reply brief. If accommodations beyond those provided under standard UNDU procedures are thus necessary, the Appeals Chamber expresses its conviction that the Registry will provide such accommodations in the manner it deems most consistent with preserving order and security in the UNDU.

Finally, the Appeals Chamber noted that a self-represented accused might be entitled to free translation services.

44. The Appeals Chamber further notes that all sides appear to agree that as an indigent self-represented accused, Mr. Krajišnik is entitled to Tribunal-funded translation assistance.[1]  This does not mean, however, that Mr. Krajišnik is entitled to assistance from a translator/interpreter of his choosing . […]

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.

10. At the outset, the Appeals Chamber observes that Karadžić’s Appeal is premised on an alleged error of law, specifically that the Trial Chamber erred in equating his situation with that of an accused represented by counsel. It is evident the Trial Chamber considered that Karadžić should exercise his right to self-representation within the frame-work of measures introduced to ensure the reasonable progress of the trial.[1] In this context, the Trial Chamber observed:

Sitting four or five days a week should not place an unreasonable burden on the Accused; indeed, many defence counsel have represented their clients before this Tribunal on a five-day sitting schedule. However, should the Accused find that the task of representing himself becomes too arduous, he may consider the various options available for varying his representation arrangements.[2]

11. The Appeals Chamber recalls that “in general a self-represented accused is expected to undertake all the tasks normally assumed by counsel”.[3] The daily rigour of preparation for trial is a fundamental part of these tasks. Moreover, the Appeals Chamber underscores that while “a Trial Chamber must be particularly attentive to its duty of ensuring that the trial be fair” to self-represented accused, an accused “who decides to represent himself relinquishes many of the benefits associated with representation by counsel.”[4]

12. The Appeals Chamber discerns no error in the Trial Chamber’s approach. The Impugned Order considers a broad range of factors, including Karadžić’s trial-readiness, his advance notice of the witnesses to be called, his apparent good health and the considerable resources at his disposal, which it found comparable to those available to an accused represented by counsel.[5] Furthermore, the Trial Chamber underscored its continuing commitment to its statutory duty to ensure a fair and expeditious trial.[6] In these circumstances, Karadžić has failed to demonstrate that the Trial Chamber erred in its application of the governing law. Indeed, the reasoning in the Impugned Order amply demonstrates the Trial Chamber’s commitment to ensure the fairness of the proceedings.[7]

Pages 2-3

CONSIDERING that Šešelj has elected to represent himself and that he has the right to self‑representation at the appeal stage;

[…]

CONSIDERING that, in view of Šešelj’s current position not to appear at the appeal hearing, the Appeals Chamber must take appropriate measures to ensure that his interests are represented at the upcoming appeal hearing in order to ensure the fair and expeditious conduct of the proceedings;

CONSIDERING that, prior to restricting Šešelj’s right to self-representation, the Appeals Chamber must issue a warning that is specific in nature;

CONSIDERING that, if [ešelj maintains his intention not to attend the appeal hearing, it will be in the interests of justice to instruct the Registrar pursuant to Rules 46 and 131 of the Rules to assign a standby counsel to represent Šešelj’s interests in the event that Šešelj is not present at the appeal hearing;

CONSIDERING that any restrictions on Šešelj’s right to represent himself must be limited to the minimum extent necessary to protect the Mechanism’s interest in a reasonably expeditious resolution of the appeal before it;

CONSIDERING, therefore, that, in order to preserve Šešelj’s right to self-representation, the mandate of the standby counsel shall be strictly limited to ensuring that Šešelj’s procedural rights at the hearing are protected if he does not attend, and shall not extend to making a response on [ešelj’s behalf on the substance of the Prosecution’s appeal;

[…]

CONSIDERING that Šešelj should be given an opportunity to reconsider his position not to attend the appeal hearing prior to instructing the Registrar to assign standby counsel;[5]

Pages 1-2:

RECALLING that Article 19(4)(d) of the Statute of the Mechanism 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 is represented by counsel to self-representation;

[…]

RECALLING that assigned counsel “shall be responsible for all aspects of defence of [...] accused before the Mechanism”;[2]

CONSIDERING, however, that the Appeals Chamber may exercise its discretion to allow persons other than counsel and co-counsel to make representations before it;

[…]

FINDING that it is in the interests of justice to grant Karadžić the right of audience before the Appeals Chamber to present arguments related to the Appeal Grounds;

CONSIDERING that this finding is without prejudice to the opportunity which will be afforded to Karadžić to make a brief personal address to the Appeals Chamber at the end of the hearing of the appeals;

26. The Appeals Chamber recalls that trial chambers enjoy considerable discretion in relation to the management of the proceedings before them, including as to the modalities of the presentation of evidence.[1] This discretion, however, must be exercised in accordance with Article 20(1) of the ICTY Statute, which requires trial chambers to ensure that trials are fair and conducted with full respect for the rights of the accused.[2] Where a party alleges on appeal that its right to a fair trial has been infringed, it must prove that the violation caused prejudice that amounts to an error of law invalidating the judgement.[3]

See also para. 72.

27. The right of an accused to represent himself, which is guaranteed by the ICTY Statute and has been held to be an “indispensable cornerstone of justice”, is nonetheless not absolute and may be subject to certain limitations.[4] In this respect, any limitation must be guided by the proportionality principle, that is, it must serve a sufficiently important aim that is compatible with the ICTY Statute and not impair the right more than necessary to accomplish such aim.[5]

[…]

29. The Appeals Chamber considers that Karadžić has failed to demonstrate that the Trial Chamber’s decision that his testimonial evidence be led by his legal advisor rather than be presented in narrative form interfered with his right to represent himself.[6] While Karadžić points to submissions made by his legal advisor that the decision essentially imposed his legal advisor as his “counsel” for the purpose of Karadžić’s examination,[7] this does not demonstrate that the decision curtailed his right to represent himself. Specifically, Karadžić does not show, for example, that the decision impacted his ability as a self-represented defendant to control the preparation and execution of his examination-in-chief, including the organization and substance of the questions to be asked by his legal advisor and the evidence elicited. The Appeals Chamber considers that the Trial Chamber’s decision respected Karadžić’s right to self-representation and the right to testify and finds no merit in his argument that he was forced to choose between the two.