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. 

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]