Could Imposing Counsel on Seselj Backfire?

As prosecutors seek to impose counsel on Serbian nationalist politician Vojislav Seselj, some observers say that denying the accused the right to represent himself could backfire.



The prosecution applied to impose counsel on Seselj on July 28, arguing that the accused “is substantially and persistently obstructing the proceedings”. However, observers say that if judges agree to the submission, Seselj is unlikely to cooperate with the arrangement, which could cause more disruption to the trial.



Seselj could tell his assigned counsel to take no action, resulting in a stalemate between the defendant and the trial chamber, said Professor Michail Wladimiroff, who acted as amicus curiae for the former Serbian president, Slobodan Milosevic, who died before the completion of his trial. In this context, an amicus curiae – or a friend of the court – is a counsel employed to advise an accused who represents himself.



“We don’t know what he will do. I wouldn’t be surprised – as he is quite radical in his actions – if he says, ‘I’ve got this single instruction and you are not supposed to do anything’,” Wladimiroff told IWPR.



Seselj, who filed a confidential response to the prosecution’s motion last week, is on trial at the Hague tribunal charged with committing war crimes in Bosnia and Croatia between 1991 and 1993.



According to the tribunal’s governing statute, war crimes suspects are allowed to represent themselves. Article 22 declares that a defendant is entitled “to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing”.



Milosevic conducted his own defence for as long as his ill health allowed and Radovan Karadzic, the former Bosnian Serb president who was arrested in July, has also declared his intention to do so.



According to Zoran Krasic, Seselj’s co-counsel and member of his Belgrade-based team of legal advisers, the accused wishes to exercise his legal right to represent himself because he is the individual best qualified to mount a defence.



“Dr Seselj has a PhD degree and is a professor at the law school here in Belgrade,” said Krasic.



He also questioned the validity of the charges against Seselj.



“We are talking about a false indictment against Dr Seselj and...Dr Seselj is the person who knows a lot about these events,” said Krasic. “For Dr Seselj, [defending himself against] this false indictment, which actually fabricates historical events, is a kind of professional quest.”



WITNESS INTIMIDATION CLAIMS



However, prosecutors are calling for Seselj’s right to defend himself to be restricted, saying he is intimidating witnesses and using the courtroom as a forum for his political views.



According to the motion filed by chief prosecutor Serge Brammertz, Seselj is also abusing his right to confidential telephone conversations with advisers in Belgrade, who have allegedly been harassing witnesses in the trial.



Representatives of Belgrade-based non-governmental organisation the Humanitarian Law Centre, HLC, say that prosecution witnesses have been contacted by representatives of Seselj and persuaded to testify for his defence.



A prosecution witness testifying last week told judges that he refused to comply with representatives of Seselj’s Serbian Radical Party, SRS, who asked him to change sides. He also said “half the town” knew he was going to give evidence in The Hague – even though he was a protected witness and his name had not been released.



On September 29, Seselj’s privileged communication from the United Nations detention unit in The Hague – which he is allowed because he is representing himself – was revoked for 30 days by tribunal registrar Hans Holthuis, during which time his conversations with advisers in Belgrade will be monitored.



According to tribunal spokesperson Nerma Jelacic, this decision was made due to Seselj’s “abuse of privileged communications facilities”, although no further information was provided.



However, Seselj’s defence team deny engaging in any intimidation of witnesses.



“There wasn’t any kind of intimidation of witnesses [by the accused’s legal advisers],” Krasic told IWPR.



Krasic condemned Holthuis’ decision to suspend Seselj’s privileged communication, saying it contravened the defendant’s right to a fair trial.



“If there is no privileged communication between members of a defence team, we are talking about a classical form of derogation on the right [to] a fair trial,” he said.



While Jelacic could not discuss details of a particular trial, she told IWPR that the right to self-representation can be subject to certain limitations.



“In particular, a trial chamber may restrict the right to self-representation in appropriate circumstances where a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial,” she said.



Tribunal rules allow for a counsel to be assigned “whenever the interests of justice so demand”.



The lawyers interviewed by IWPR agreed that if judges rule that Seselj has caused a continuous obstruction to justice, then they would be entitled to assign counsel.



“If you don’t play by the rules of the game and you transgress, then you forfeit that right [to self representation],” said Steven Kay QC, who acted as assigned counsel to Milosevic.



Seselj has been in a similar situation before. In autumn 2006, the trial chamber – which then comprised different judges – decided to assign counsel.



The accused then went on hunger strike, and appealed the trial chamber decision, which was granted after the appeals chamber decided the trial chamber had erred.



In their submission this time around, prosecutors asked judges to ignore any threats from Seselj to go on hunger strike when considering the request.



“[The] chamber cannot consider the threat to go on hunger strike as a reason to deny the motion. Rather, it is but one more example of the accused trying to wrest control from the chamber and obstruct the proceedings,” it submitted.



Observers say that Seselj wants to represent himself so he can undermine the trial and drum up publicity back home.



“He is not interested in defending himself, he is interested in making fools of everybody in the tribunal,” said Vojin Dimitrijevic of the Belgrade Centre for Human Rights.



Seselj has also been accused of using his trial as a political platform.



Even while in detention in The Hague, he remains the leader of the SRS, which was a front runner in Serbian elections earlier this year before eventually losing out to the Democratic Party.



“[Politicians’] very existence and status depends upon being in the public eye and presenting their views and the legal arena gives just as much opportunity as a parliament building for them to do it,” said Kay.



But Seselj’s legal advisers deny that his decision to defend himself is politically motivated, again underlining his legal expertise.



“No. Absolutely not,” said Krasic. “The only reason for insisting on [Seselj’s] self-defence is that Dr Seselj is on his own ground. He is the best choice for his defence.”



PROCEDURAL CONCERNS



Legal experts say that assigning counsel against the wishes of a defendant raises serious procedural questions.



Rules and procedures at the tribunal draw on both common and civil law systems.



Under tribunal rules, there are provisions to assign counsel, irrespective of what the defendant wants – a feature drawn from the common law legal system. This is contrary to the system of civil law – which can be found in most European countries – under which the assignment of counsel against the wishes of an accused would not be allowed.



“As a Dutch lawyer, I don’t think I would be allowed to do anything for a client who doesn’t want to be represented. It would be contrary to my code of conduct,” Michiel Pestman, a lawyer with the Amsterdam firm Bohler Franken Koppe Wijngaarden, told IWPR.



“The client could file a complaint against me [to the Dutch bar] if I claim to represent him but he doesn’t want to me to.”



But under the tribunal’s code – which leans towards common law – an assigned counsel is an officer of the court and must therefore represent a client as instructed by the registry.



“In terms of a lawyer assigned to Seselj, a common law lawyer may accept the assignment, because he is an officer of the court and he does not want to [be in contempt of court],” explained Wladimiroff.



Despite this difference, there is a common denominator that straddles both common and civil law systems which could prove an obstacle in the Seselj trial – a counsel is powerless to act without the instructions of his client.



“It doesn’t matter [which system] the lawyer comes from, he won’t do anything against the will of Seselj… The rules cannot tell you to act against the wishes of the client,” said Wladimiroff.



This would not cause a problem for an assigned counsel if a defendant issues instructions, said Kay. When he was assigned as Milosevic’s counsel in September 2004, Milosevic did cooperate. He issued instructions – the first of which was to tell Kay to appeal his own assignment.



“I got the relationship back with Milosevic, he started giving me instructions and so the case moved along, it progressed,” he said.



But if a counsel is imposed on Seselj and he then refuses to issue instructions, then the lawyer would be powerless to act.



“If [an accused] goes into a complete denial and doesn’t recognise the court then you have got a problem,” said Kay. “Counsel can only do something if he has instructions. I had instructions from Milosevic. If I had had no instructions, I would have done nothing.”



PUBLIC RIDICULE



An alternative solution to imposing counsel in an attempt to curb Seselj’s antics in court would be to limit the publicity that the trial receives in Serbia, say observers.



“[Seselj] has a free platform to talk to his followers… through state television,” said Dimitrijevic. According to him, Seselj is not trying to defend himself so much as ridicule the tribunal and make fools of the judges – something publicity surrounding the trial only encourages.



Sonja Biserko, president of Belgrade’s Helsinki Committee, also believes Seselj’s court rhetoric is aimed at TV audiences at home.



“He always uses small details, some of [which] are not relevant to the credibility of the witnesses, but [only] for [Serbia’s] public,” said Biserko.



Some are calling for television broadcasting of the trial to be suspended.



“It’s more of a public relations problem than a legal problem,” said Dimitrijevic. “The other [option] is to allow him to defend himself and prevent his daily routine from appearing on Serbian television.”



Kay also believes that cutting television coverage of the trial could help.



“[It is] certainly something I as a judge would consider if I was viewing the trial as being deliberately constructed for a television circus. I would consider revoking that form of publicity. I don’t see how a trial judge could be stopped from doing it. There’s nothing in the rules saying that every trial has to be on television,” he said.



However, the tribunal has given high priority to publicising trials through media. Its statute states that, subject to the protection of witnesses or victims, “the accused shall be entitled to a fair and public hearing”. And ensuring war crimes victims know about its proceedings has been “a major feature of the tribunal”, added Wladimiroff.



Wladimiroff makes a distinction between the proceedings being broadcast over the internet as they happen and the more selective coverage aired on television. Maintaining the internet coverage, but limiting the television broadcasting, could have its benefits, he said.



However, he warned that judges would have to construct an extremely sound argument if Seselj is not to claim he is the victim of unfair procedure.



Others, however, say that it would be a mistake to restrict broadcasting of the trial.



“The publicity of trials is a very important right and a very important public interest,” said Dr Goran Sluiter, professor of law at Amsterdam University.



Sluiter believes that limiting coverage of the case would play into Seselj’s hands.



“It may be what Seselj would like them to do – this type of drastic measure – and then he can claim victory. He can say, ‘You see, this is an unfair court.’ That’s not an option.”



Simon Jennings is an IWPR reporter in The Hague.