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. 

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CONSIDERING that Šešelj’s refusal to respond to the Order indicates that he maintains his previously stated position not to participate in any way in the appeal hearing;

CONSIDERING that Šešelj’s position not to participate in the appeal hearing rises to the level of a disruption of the proceedings that would warrant the restriction of his right to self-representation;

CONSIDERING that, pursuant to Rules 46 and 131 of the Rules, the assignment of standby counsel is warranted in the interests of justice to ensure the protection of Šešelj’s rights at the appeal hearing;

25. The Appeals Chamber notes that Karadžić did not raise his arguments about the alleged breach of his right to represent himself during trial or seek reconsideration or certification to appeal the impugned decision.[1] In this respect it recalls that, if a party raises no objection to a particular issue before a trial chamber when it could have reasonably done so, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to raise the issue on appeal.[2] However, in view of the fundamental importance of the right to self-representation, the Appeals Chamber holds that it would not be appropriate to apply the waiver doctrine to Karadžić’s allegation of error and will consider the matter.[3]

See also para. 298.

35. The Appeals Chamber recalls that Article 21(4)(d) of the ICTY Statute guarantees the fundamental right of an accused to be tried in his presence. This right is not absolute, however, and may be subject to limitations.[1] As with other qualified statutory rights of an accused, including the right to be self-represented, any limitation on the right of the accused to be tried in his presence must serve a sufficiently important aim that is compatible with the ICTY Statute and must not impair the right more than necessary to accomplish such aim.[2]

[…] 

37. […] In view of the above, the Appeals Chamber finds no error in the Trial Chamber’s consideration that conducting the site visits in Sarajevo and Srebrenica in the presence of Karadžić would inevitably pose a considerable security risk for Karadžić as well as the other participants in the site visit delegations.[3] The Appeals Chamber therefore finds that the Trial Chamber’s decision to conduct the site visits without Karadžić being present served the sufficiently important aim of ensuring its ability to perform its functions in the given circumstances and did not impair his right more than necessary to accomplish it.[4]

[…]

39. The Appeals Chamber finds that the minutes of the site visits therefore reveal the exchange of submissions between the parties and the Trial Chamber’s interactions with various persons at some of the sites. The minutes also confirm that, although the impugned decisions indicated that the purpose of the site visits was not to gather evidence or hear submissions but to enable the Trial Chamber to familiarize itself with the locations referred to in the Indictment, the conduct during the visits did not comply with the limitations imposed by the Trial Chamber. Consequently, the Appeals Chamber finds that the two site visits formed part of the trial proceedings,[5] and that, in light of the conduct during them, the site visits violated Karadžić’s right to be tried in his presence. The Appeals Chamber will proceed to examine whether Karadžić suffered prejudice as a result of this violation.

40.  […] Although Karadžić submits that “[t]he observations made during the site visit undoubtedly affected the Trial Chamber’s overall assessment of the events, and its findings in the judgement”,[6] he does not point to any concrete disadvantage or prejudice suffered as a result of the site visits having been conducted in his absence.[7]

41. The Appeals Chamber reiterates that any violation of the right to a fair trial of an accused requires a remedy.[8] The nature and form of the effective remedy should be proportional to the gravity of the harm suffered.[9] The Appeals Chamber also recalls that, in situations where a violation of the accused’s fair trial rights has not materially prejudiced the accused, a formal recognition of the violation may be considered an effective remedy.[10] For the reasons set out above, the Appeals Chamber considers that its recognition of the violation of Karadžić’s right to be present during the site visits constitutes an effective remedy.