Analysis: Unfit for Trial?

Wednesday, 9 November, 2005

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Rachel S.

When presiding judge Patrick Robinson told a packed courtroom on July 5 that “a radical review” of the Milosevic trial process was needed, he was responding to two important legal questions raised by lawyers.

These issues are whether Slobodan Milosevic, who is suffering from high blood pressure and heart trouble, is fit to stand trial, and whether he should be allowed to continue representing himself.

With these two possibilities before them, the tribunal was left to consider tribunal law and relevant legal precedents.

While the tribunal's statute does not include a standard for finding a defendant unfit to stand trial, it does guarantee the defendant certain rights, which in turn can only be exercised when the accused has a certain level of mental and physical capacity.

A legal precedent was recently set at the tribunal by the judges in the case against Pavle Strugar, the former Yugoslav army general charged with crimes committed during the shelling of Dubrovnik.

As the judges in that case explained. “The issue is not whether the accused suffers from particular disorders, but rather…whether he is able to exercise effectively his rights in the proceedings against him.”

More specifically, they said, the defendant must be able to plead, to instruct counsel, to testify, and to understand the nature of the charges, the details of evidence, and the course and consequences of the proceedings.

But, they made clear that “it would be entirely inappropriate, and unjustified, and antithetical to the application of international criminal law, to require that each of these capacities must be present... at the level that a particular accused has ever enjoyed”.

Instead, they explained that “what is required is a minimum standard of overall capacity below which an accused cannot be tried without unfairness or injustice".

If an accused does not have the mental or physical capacity to do these things “at such a level that is possible for the accused to participate in the proceedings (in some cases with assistance)” – in other words “to make his or her defence” – then the person may be found unfit to stand trial.

It is up to the defence to prove this is the case.

Just one week after issuing this decision in the Strugar trial, the tribunal suspended proceedings against Vladimir Kovacevic, who, like Strugar, is charged with crimes committed during the shelling of Dubrovnik.

Referring to Kovacevic, they noted, “The accused, at this point, suffers from a mental disorder which presently renders him unfit to enter a plea and to stand trial.”

After reaching this decision, the tribunal sent Kovacevic to a mental health facility in Serbia and Montenegro for treatment. While there, the accused's health will be monitored and his fitness to stand trial will be reevaluated at a later stage.

By contrast, the judges in the Milosevic’s case determined on July 6 that, for now at least, they have no evidence that the former Serbian leader is unfit to stand trial.

What they do have evidence of, according to a medical report read in court on July 5, is that he has high blood pressure, hypertension, and organ damage. Whenever he rests, his blood pressure returns to normal, but “if the patient is experiencing stress, the blood pressure rises sharply”, according to Dr. van Dijkman, the examining physician.

The problem, of course, is that serving as one’s own lawyer in the biggest war crimes case since the Nuremburg trials — as Milosevic has chosen to do — is inherently stressful.

This stress, while very real, has been brought about through the defendant's own choices, according to prosecutor Geoffrey Nice who told the court on July 5, “Any deterioration in the accused’s health may now quite clearly be traced, in whole or in part, to his conduct in the case itself.”

In light of this, Nice pressed the tribunal to adopt another, entirely different solution — to impose a lawyer upon Milosevic.

This second option, preventing Milosevic from continuing to represent himself, presents its own problems.

The starting point for such an assessment can be found in Articles 20 and 21 of the tribunal’s Statute. The former requires, among other things, that trials are “fair and expeditious”. The latter states that an accused is entitled to certain minimum guarantees, including to “be tried in his presence, and to defend himself in person or through legal assistance of his own choosing”.

A legal precedent for the imposition of counsel can be found in the case against Vojislav Seselj, the former head of the Serbian Radical Party. Like Milosevic, Seselj insisted that he be allowed to represent himself, while the prosecutor asked the court to impose counsel on the defendant.

The judges in the Seselj case compared law on the subject from various jurisdictions.

They noted that the International Criminal Tribunal for Rwanda, ICTR, the Hague tribunal’s sister organisation (the two tribunals share an appeals chamber), has a provision in its Rules of Procedure and Evidence that reads, “The trial chamber may, if it decides it is in the interests of justice, instruct the registrar to assign a counsel to represent the interests of the accused.”

In the United States, they found, an accused is entitled to represent himself in most, but not all, cases. Indeed, according to a decision by that country’s Supreme Court, this right (which stems from a provision of the US Constitution), may be terminated if the accused “deliberately engages in serious and obstructionist misconduct”.

Moreover, the judges stressed, the Criminal Procedure Act of the Federal Republic of Yugoslavia requires that for proceedings where the punishment is more than ten years imprisonment, “the accused must have defence counsel even at his first interrogation”.

Using these and other examples, the Seselj court found that “the trial chamber takes the right to self-representation articulated in the statute as a starting point, but notes that according to international and national jurisprudence, this right is not absolute”.

They said that when “the interests of justice” so demand, counsel may be assigned. They also noted, among other considerations, that “the tribunal has a legitimate interest in ensuring that the trial proceeds in a timely manner without interruptions adjournments, or disruptions”.

Seselj, the judges found, might “attempt to use the tribunal as a vehicle for the furtherance of his political beliefs and aspirations” and “if this tactic were resorted to, it would not only result in an abuse of the valuable judicial resources of the tribunal but also hinder an expeditious trial”. They then decided to appoint standby counsel to assist Seselj.

The judges hearing Milosevic’s case made reference to this decision in their July 6 order.

But they insisted that if the trial chamber was to decide to impose standby counsel on Milosevic, it did not necessarily follow that it would be for the same reasons, or that the person appointed would operate in the same way that Seselj's assistant would.

Indeed, while the judges did not mention the widely-held belief that Milosevic plans to use the defence phase of the trial to promote his political beliefs - as was the worry with Seselj - they focused on the fact that the trial has not been able to proceed in a timely manner because of the defendant’s health issues.

They noted, in fact, that by the time the prosecution rested its case on February 25, the trial had already been delayed for a total of 66 days because of Milosevic’s ill-health. As such, they found, “it may be necessary to assign counsel to the accused and/or adopt other measures to ensure a fair and expeditious conduct" of the proceedings.

When the subject of appointing a lawyer came up on July 5, Milosevic insisted, “This is out of the question as you know, nor will I ever agree to it.”

Nonetheless, it was clear that the judges believed the time had come to start seriously considering the issue.

Rachel S. Taylor is an IWPR editor in The Hague.