Second review

Notion(s) Filing Case
Decision on Adequate Facilities - 07.05.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.2)

In the present case, the Appeals Chamber was seized of an appeal against a Trial Chamber’s decision in review of the Registrar’s decision.

9. The Prosecution raised the issue of whether the Appeals Chamber should be seised of this appeal by pointing to the Blagojević Appeal Decision which, in its submission, suggests that an appeal of a judicial review would “amount to one review too many”.[1] However, while the Appeals Chamber in Blagojević suggested that a review by the Appeals Chamber of the Trial Chamber’s judicial review of the Registrar’s decision amounted to an “additional” review,[2] the Appeals Chamber in that case nonetheless proceeded to undertake the judicial review on the merits thereby indicating that it considered itself to be properly seised of the appeal.[3] Similarly, in this case the Appeals Chamber considers that it is properly seised of this appeal of the Trial Chamber’s judicial review.

11. Turning to the standard of review to be applied to an appeal of a judicial review of an administrative decision, the Appeals Chamber notes that past appeals of judicial reviews have not always clearly stated the standard of review applicable on a second review of an administrative decision.[4] However, it recalls that decisions relating to the general conduct of trial proceedings are matters that fall within the discretion of the Trial Chamber.[5] In order to successfully challenge a discretionary decision, a party must demonstrate that the Trial Chamber has committed a “discernible error” resulting in prejudice to that party.[6] The Appeals Chamber will only overturn a Trial Chamber’s discretionary decision where it is found to be (1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.[7]

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[1] Prosecution Response [Prosecution’s Response to Karadžić’s Appeal of the Trial Chamber’s Decision on Adequate Facilities, 13 March 2009], para. 3, fn. 7. See also Registrar’s Submission [Registrar’s Submission Pursuant to Rule 33(B) Regarding Radovan Karadžić’s Appeal of the Trial Chamber’s Decision on Adequate Facilities, 30 March 2009], para. 17.

[2] Blagojević Appeal Decision [Prosecutor v. Vidoje Blagojević, IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojević to Replace his Defence Team, 7 November 2003], fn. 24. See Procureur c. Vidoje Blagojević, IT-02-60-AR73.4, Version publique et expurgée de l’exposé des motifs de la décision relative au recours introduit par Vidoje Blagojević aux fins de remplacer son équipe de défense, 7 november 2003 for the complete footnote.

[3] Blagojević Appeal Decision, paras 7-8. See also Prosecutor v. Milan Milutinović, Dragoljub Ojdanić and Nikola [ainović, Case No. IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003 (“Milutinović Appeal Decision”) in which the Appeals Chamber was also seised of an appeal of the judicial review of a decision by the Registrar.

[4] See Milutinović Appeal Decision [Prosecutor v. Milan Milutinović, Dragoljub Ojdanić and Nikola [ainović, Case No. IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003], paras 21, 24-26: The Appeals Chamber did not set out the applicable standard of review but considered that the Trial Chamber and the Registrar correctly assessed the elements of the case and took into account the relevant factors; Blagojević Appeal Decision [Prosecutor v. Vidoje Blagojević, IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojević to Replace his Defence Team, 7 November 2003], paras 16-22, 24-33, 48-54: The Appeals Chamber did not set out the applicable standard of review but considered that the Trial Chamber took into account the relevant factors and that it was reasonably open to the Trial Chamber to find as it did.

[5] See, inter alia, Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.1, Decision on Appellant Radovan Karadžić’s Appeal Concerning Holbrooke Agreement Disclosure, 6 April 2009, para. 14; Prosecutor v. Ante Gotovina, Ivan Čermak, and Mladen Markač, Case No. IT-06-90-AR73.3, 26 January 2009, para. 5.

[6] Ibid.

[7] Ibid. 

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Notion(s) Filing Case
Decision on Motion to Vacate Appointment of Counsel - 12.02.2010 KARADŽIĆ Radovan
(IT-95-5/18-AR73.6)

9. The Appeals Chamber recalls that Trial Chamber decisions reviewing administrative decisions relate to the general conduct of trial proceedings, and as such are matters that fall within the discretion of the Trial Chamber. In order to successfully challenge a discretionary decision, a party must demonstrate that the Trial Chamber has committed a “discernible error” resulting in prejudice to that party. The Appeals Chamber will only overturn a Trial Chamber’s discretionary decision where it is found to be: (i) based on an incorrect interpretation of governing law; (ii) based on a patently incorrect conclusion of fact; or (iii) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.

25. The Appeals Chamber notes that the Registrar’s Response questions “whether a judicial decision on review can be subject to appellate scrutiny”.[5] The Appeals Chamber underscores that in instances where this power of review has not been explicitly conferred on another organ of the Tribunal, the Appeals Chamber has exercised its authority to hear appeals of reviews of administrative decisions rendered by the Registrar.[6] Thus, in the present instance, where there is no explicit conferral of review power to another organ of the Tribunal, the Appeals Chamber has the authority to hear the Appeal.[7]

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[1] See Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.2, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on Adequate Facilities, 7 May 2009 (“Karadžić Facilities Decision”), para. 11, citing Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003 (“Milutinović Decision”), paras 21, 24-26.

[2] See Karadžić Facilities Decision, para. 11. See also Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007 (“Prlić Decision”), para. 8; 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 Defence Counsel, 1 November 2004 (“Milošević Decision”), para. 9.

[3] Karadžić Facilities Decision, para. 11. See also Prlić Decision, para. 8.

[4] Id. See also Milošević Decision, para. 10.

[5] Registrar’s Submission Pursuant to Rule 33 (B) Regarding Radovan Karadžić’s Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, 4 February 2010 (“Registrar’s Response”), para. 9.

[6] See, e.g., Karadžić Facilities Decision, para. 11; Milutinović Decision, paras 21, 24-26.

[7] The Appeals Chamber notes that a Trial Chamber does not have the power to review an administrative decision where that review function has been explicitly assigned to another organ of the Tribunal. See Prosecutor v. Vidoje Blagojević, Case No. IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojević to Replace his Defence Team, 7 November 2003, para. 7. Additionally, the Appeals Chamber notes the Registrar’s assertion that many of Karadžić’s arguments on appeal merely repeat arguments that were unsuccessful before the Trial Chamber. Registrar’s Response, para. 13. The Registrar’s submission in this respect misapprehends the standard of review in the current appeal, which requires an appellant to demonstrate that the Trial Chamber based its conclusions either on an error of law or a patent error of fact, or was so unfair or unreasonable as to constitute an abuse of discretion. See supra, para. 9. Karadžić’s submissions in his Appeal, while touching on many of the points made before the Trial Chamber, are appropriately tailored to a review of the Trial Chamber’s discretionary decision. 

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