Amici Ask Court to Decide Milosevic's Fitness to Stand Trial
Amici Ask Court to Decide Milosevic's Fitness to Stand Trial
In a strongly worded submission, Amici Curiae advised the Milosevic Trial Court that imposition of counsel against the Accused's wishes would violate a 'fundamental principle' of the Tribunal statute, i.e. 'to defend himself in person or through legal assistance of his own choosing.'
They further asserted that Milosevic's fitness to stand trial and to testify in his own defence should be determined by additional medical examinations. If he is found fit, he should be allowed to start his own defence and only if he is unable to continue according to the 3-day per week time schedule should the Court intervene and then, only to provide counsel to assist him, rather than to supplant him.
Finally, Amici noted, if the Court decides to impose counsel and contemplates appointing Amici to fill that role, the Court should consider that it could be professionally embarrassing to Amici who have consistently opposed imposition of counsel on the grounds it violates a basic right of the Accused and cannot provide him a fair defence.
FITNESS TO STAND TRIAL
While the Amici noted that Prof. Dr. R. Tavernier examined the Accused and concluded he is not fit to represent himself, they advised the Court that Milosevic's fitness to stand trial has not been addressed by medical experts. They asked the Court to obtain such an opinion.
The standard for determining whether an accused is fit to stand trial was recently articulated by the Trial Chamber in the Strugar case. Fitness is determined by the accused's capacity to exercise his rights at trial, i.e. to plead, understand the nature of the charges, understand the course of the proceedings, understand the details of the evidence, instruct counsel, understand the consequences of the proceedings, and testify. Though Strugar was found to suffer from ''uncomplicated' vascular dementia, . . . a mildly decreased memory, and . . . occasional word-finding difficulty,' the Court found him fit to stand trial.
In contrast to Strugar, Milosevic maintains he is fit to stand trial and no question has been raised about his mental acuity. Rather, the Amici raised the issue of whether Milosevic would be able to exercise his right to testify in his own defence, should he choose to do so. Noting that, 'If the Accused's evidence-in-chief lasted for 20 days, this would be followed by 20 days of cross-examination,' Amici advised the Court that it 'would be likely to cause increased stress over an extended period of time.'
The Strugar Court addressed that possibility and concluded that any impairment in Pavle Strugar's capacity to testify due to deficiencies in memory or concentration 'may be alleviated to some degree because he has the assistance of two experienced counsel.' While the Amici's argument is that Milosevic's potential inability to endure the strain of testifying in his own behalf may render him unfit to stand trial, it also supports an argument that with the assistance of counsel such a potential disability would be overcome.
Amici do not argue that other of the Accused's trial rights would be endangered if he were represented. While they maintain that counsel cannot represent an accused who refuses to instruct them, the right is not infringed where Milosevic chooses not to exercise it. The Appeals Chamber made this clear in the Blagojevic case [see below]. In any case, it is anything but assured that Milosevic will choose to testify where he would be obligated to answer the Prosecution's questions under oath.
IMPOSITION OF COUNSEL
As they have consistently done whenever the issue has been raised, Amici take the position that imposition of counsel against an accused's wishes violates his basic right to self-representation. As they concede, their view differs from ICTY and ICTR jurisprudence, which maintains that the right to self-representation is not absolute. Where necessary to assure a fair and expeditious trial, counsel may be imposed on an unwilling accused.
Amici argue this jurisprudence is wrong and is based on a misinterpretation of the ICTY statute. The statute, they say, provides for the assignment of counsel to an indigent accused (one who is unable to pay), not for imposing counsel where an accused doesn't want one. In the adversarial system, counsel must take instruction from their client on what type of defence he wishes to advance, according to the Amici.
That is not what the Appeals Chamber held in rejecting Vidoje Blagojevic's appeal from the Trial Chamber's refusal to replace his counsel. 'Counsel has an obligation to consult with the Appellant but he is not bound by the Appellant's views as to what are the best means to achieve the objects of the Appellant's defence.' Moreover, where Appellant (the accused Blagojevic) refused to meet with his counsel to give him instructions, he had no grounds for complaint. The Appeals Chamber also held that defence counsel's obligation to represent the accused continued where the accused unjustifiably resisted legal representation.
By arguing that the accused has an absolute, unrestricted right to self-representation, Amici enshrine that right above all others, including the right to a fair trial. In Blagojevic, the Appeals Chamber made clear that assuring the accused receives a fair trial outweighs even the accused's objections that he no longer has a relationship of trust with his counsel. In that case, the Court found Blagojevic's reasons for mistrusting his counsel unjustifiable. In Milosevic's case, there is a strong argument that his right to a fair trial requires that he be represented by counsel, based on Dr. Tavernier's report to the court.
While Amici properly raise issues available to the Accused, they have perhaps gone too far by not addressing the rights and interests of anyone other than the Accused. As they remind the Court, their role is not that of defence counsel. Perhaps their manner of arguing only for the Accused's rights outside the broader interests of a fair trial has placed them in the position of professional embarrassment which they now worry will occur should the Court choose them as counsel for Milosevic.
In Amici's formulation of a fair trial, it would seem that victims and the public have no rights worthy of protection. Milosevic can turn the trial into a procedure that suits his interests, even if his 'defence' does not resemble any legal defence recognized by the Tribunal. He can take an excessive time to present his political case, as his health requires, regardless of the interests of those who have been so severely victimized by the crimes of which he is accused.
This is the wrong formulation of an accused's rights. They are not unlimited. In the end, they abide within the greater interests of justice and must be exercised in furtherance of justice, not in the unrestricted and extra-legal interests of an accused.
ALTERNATIVES
While arguing strenuously against imposition of counsel, Amici suggest that, if Milosevic is considered fit to stand trial, he should be allowed to proceed with his own defence on August 31. Only if he proves unable to continue due to ill-health should he be asked if he wishes the assistance of counsel of his choice and/or the Amici to avoid the imposition of counsel. Under this formulation, counsel would assist, but not supplant him.
Finally, if he does not agree to such assistance, Amici concede that 'the Trial Chamber has a duty to ensure that the proceedings are not subject to undue delay and are efficiently conducted.' In that situation, if the Court considers appointing the Amici to represent Milosevic, they point out that their role would change substantially, since they have not been receiving instructions from him or advancing the case that he wishes. They claim it also might lead to professional embarrassment as they have repeatedly argued that imposition of counsel violates his basic rights. Professional embarrassment is hardly a reason for the Court not to appoint Amici as defence counsel if they are the best qualified.
In addition, Amici point out difficulties if witnesses refuse to confer with imposed counsel and Milosevic refuses to instruct them. 'Without knowledge of the Accused's assertions as to what he believes to be the truth and his understanding of events, it is extremely difficult for an advocate to attempt to construct the thoughts and mindset of an Accused who is not his client.' Anyone who has observed the trial over the last two years is well aware of Milosevic's truth and understanding of events, at least sufficiently to mount a defence on his behalf. That assumes the defense he wants is legally proper. Moreover, it would be his choice whether to cooperate in his defence. Should he refuse to do so, he must bear responsibility for the quality of the defence he receives.
Amici also noted that imposition of counsel will require a further adjournment of the trial. 'Imposed counsel would not have access to the preparatory work completed by the Accused and would have to undertake the task of proofing witnesses and preparing exhibit materials from the start.'
CONCLUSION
The three judges of Trial Chamber III are faced with a difficult decision, one where no perfect solution is possible, only the least imperfect. In reaching that decision, they must take account of the rights of the Accused and limit any incursion on them to what is absolutely necessary to further the greater interests of justice. Justice also requires consideration of the rights of victims and the public who have been grievously harmed. One of their interests is finality, so those who can may put their ghosts to rest.
They further asserted that Milosevic's fitness to stand trial and to testify in his own defence should be determined by additional medical examinations. If he is found fit, he should be allowed to start his own defence and only if he is unable to continue according to the 3-day per week time schedule should the Court intervene and then, only to provide counsel to assist him, rather than to supplant him.
Finally, Amici noted, if the Court decides to impose counsel and contemplates appointing Amici to fill that role, the Court should consider that it could be professionally embarrassing to Amici who have consistently opposed imposition of counsel on the grounds it violates a basic right of the Accused and cannot provide him a fair defence.
FITNESS TO STAND TRIAL
While the Amici noted that Prof. Dr. R. Tavernier examined the Accused and concluded he is not fit to represent himself, they advised the Court that Milosevic's fitness to stand trial has not been addressed by medical experts. They asked the Court to obtain such an opinion.
The standard for determining whether an accused is fit to stand trial was recently articulated by the Trial Chamber in the Strugar case. Fitness is determined by the accused's capacity to exercise his rights at trial, i.e. to plead, understand the nature of the charges, understand the course of the proceedings, understand the details of the evidence, instruct counsel, understand the consequences of the proceedings, and testify. Though Strugar was found to suffer from ''uncomplicated' vascular dementia, . . . a mildly decreased memory, and . . . occasional word-finding difficulty,' the Court found him fit to stand trial.
In contrast to Strugar, Milosevic maintains he is fit to stand trial and no question has been raised about his mental acuity. Rather, the Amici raised the issue of whether Milosevic would be able to exercise his right to testify in his own defence, should he choose to do so. Noting that, 'If the Accused's evidence-in-chief lasted for 20 days, this would be followed by 20 days of cross-examination,' Amici advised the Court that it 'would be likely to cause increased stress over an extended period of time.'
The Strugar Court addressed that possibility and concluded that any impairment in Pavle Strugar's capacity to testify due to deficiencies in memory or concentration 'may be alleviated to some degree because he has the assistance of two experienced counsel.' While the Amici's argument is that Milosevic's potential inability to endure the strain of testifying in his own behalf may render him unfit to stand trial, it also supports an argument that with the assistance of counsel such a potential disability would be overcome.
Amici do not argue that other of the Accused's trial rights would be endangered if he were represented. While they maintain that counsel cannot represent an accused who refuses to instruct them, the right is not infringed where Milosevic chooses not to exercise it. The Appeals Chamber made this clear in the Blagojevic case [see below]. In any case, it is anything but assured that Milosevic will choose to testify where he would be obligated to answer the Prosecution's questions under oath.
IMPOSITION OF COUNSEL
As they have consistently done whenever the issue has been raised, Amici take the position that imposition of counsel against an accused's wishes violates his basic right to self-representation. As they concede, their view differs from ICTY and ICTR jurisprudence, which maintains that the right to self-representation is not absolute. Where necessary to assure a fair and expeditious trial, counsel may be imposed on an unwilling accused.
Amici argue this jurisprudence is wrong and is based on a misinterpretation of the ICTY statute. The statute, they say, provides for the assignment of counsel to an indigent accused (one who is unable to pay), not for imposing counsel where an accused doesn't want one. In the adversarial system, counsel must take instruction from their client on what type of defence he wishes to advance, according to the Amici.
That is not what the Appeals Chamber held in rejecting Vidoje Blagojevic's appeal from the Trial Chamber's refusal to replace his counsel. 'Counsel has an obligation to consult with the Appellant but he is not bound by the Appellant's views as to what are the best means to achieve the objects of the Appellant's defence.' Moreover, where Appellant (the accused Blagojevic) refused to meet with his counsel to give him instructions, he had no grounds for complaint. The Appeals Chamber also held that defence counsel's obligation to represent the accused continued where the accused unjustifiably resisted legal representation.
By arguing that the accused has an absolute, unrestricted right to self-representation, Amici enshrine that right above all others, including the right to a fair trial. In Blagojevic, the Appeals Chamber made clear that assuring the accused receives a fair trial outweighs even the accused's objections that he no longer has a relationship of trust with his counsel. In that case, the Court found Blagojevic's reasons for mistrusting his counsel unjustifiable. In Milosevic's case, there is a strong argument that his right to a fair trial requires that he be represented by counsel, based on Dr. Tavernier's report to the court.
While Amici properly raise issues available to the Accused, they have perhaps gone too far by not addressing the rights and interests of anyone other than the Accused. As they remind the Court, their role is not that of defence counsel. Perhaps their manner of arguing only for the Accused's rights outside the broader interests of a fair trial has placed them in the position of professional embarrassment which they now worry will occur should the Court choose them as counsel for Milosevic.
In Amici's formulation of a fair trial, it would seem that victims and the public have no rights worthy of protection. Milosevic can turn the trial into a procedure that suits his interests, even if his 'defence' does not resemble any legal defence recognized by the Tribunal. He can take an excessive time to present his political case, as his health requires, regardless of the interests of those who have been so severely victimized by the crimes of which he is accused.
This is the wrong formulation of an accused's rights. They are not unlimited. In the end, they abide within the greater interests of justice and must be exercised in furtherance of justice, not in the unrestricted and extra-legal interests of an accused.
ALTERNATIVES
While arguing strenuously against imposition of counsel, Amici suggest that, if Milosevic is considered fit to stand trial, he should be allowed to proceed with his own defence on August 31. Only if he proves unable to continue due to ill-health should he be asked if he wishes the assistance of counsel of his choice and/or the Amici to avoid the imposition of counsel. Under this formulation, counsel would assist, but not supplant him.
Finally, if he does not agree to such assistance, Amici concede that 'the Trial Chamber has a duty to ensure that the proceedings are not subject to undue delay and are efficiently conducted.' In that situation, if the Court considers appointing the Amici to represent Milosevic, they point out that their role would change substantially, since they have not been receiving instructions from him or advancing the case that he wishes. They claim it also might lead to professional embarrassment as they have repeatedly argued that imposition of counsel violates his basic rights. Professional embarrassment is hardly a reason for the Court not to appoint Amici as defence counsel if they are the best qualified.
In addition, Amici point out difficulties if witnesses refuse to confer with imposed counsel and Milosevic refuses to instruct them. 'Without knowledge of the Accused's assertions as to what he believes to be the truth and his understanding of events, it is extremely difficult for an advocate to attempt to construct the thoughts and mindset of an Accused who is not his client.' Anyone who has observed the trial over the last two years is well aware of Milosevic's truth and understanding of events, at least sufficiently to mount a defence on his behalf. That assumes the defense he wants is legally proper. Moreover, it would be his choice whether to cooperate in his defence. Should he refuse to do so, he must bear responsibility for the quality of the defence he receives.
Amici also noted that imposition of counsel will require a further adjournment of the trial. 'Imposed counsel would not have access to the preparatory work completed by the Accused and would have to undertake the task of proofing witnesses and preparing exhibit materials from the start.'
CONCLUSION
The three judges of Trial Chamber III are faced with a difficult decision, one where no perfect solution is possible, only the least imperfect. In reaching that decision, they must take account of the rights of the Accused and limit any incursion on them to what is absolutely necessary to further the greater interests of justice. Justice also requires consideration of the rights of victims and the public who have been grievously harmed. One of their interests is finality, so those who can may put their ghosts to rest.
