Milosevic to Resume Lead in His Defence Case

Today, the Appeals Panel issued its compromise decision on whether it was proper for the Trial Chamber to assign counsel to represent Slobodan Milosevic against his will. While upholding the Trial Chamber's decision to impose counsel, it ruled that the Chamber excessively restricted the Accused's fundamental right to self-representation by allowing him only minimal participation in his defence.

It ordered the Trial Chamber to craft a working regime that 'must be rooted in the default presumption that, when he is physically capable of doing so, Milosevic will take the lead in presenting his case -- choosing which witnesses to present, questioning those witnesses before assigned Counsel has an opportunity to do so, arguing any proper motions he desires to present to the court, giving a closing statement when the defense rests, and making the basic strategic decisions about the presentation of his defense.'

The Appeals Panel went on to stress 'in practice, if all goes well, the trial should continue much as it did when Milosevic was healthy.' However, if his health problems 'resurface with sufficient gravity,' the trial will be able to continue under the direction of assigned counsel. In effect, assigned counsel are relegated to the role of standby counsel.

The Appeals Panel's decision was based solely on the issue of Mr. Milosevic's health as the reason necessitating counsel: 'Under the current circumstances, where Milosevic is sufficiently well to present a vigorous, two-day opening statement, it was an abuse of discretion to curtail his participation in the trial so dramatically on the grounds of poor health.' The higher court did not consider the Prosecution's plea to expand the grounds in support of imposing counsel to include the Accused's disrespect for the Tribunal, his avowed intention of using it for his own, non-forensic purposes, his manipulation and obstructionism.

In support of its ruling, the Appeals Panel held that the right to represent oneself is guaranteed by the ICTY statute and was viewed by the drafters as 'an indispensable cornerstone of justice, placing it on a structural par with defendants' right to remain silent, to confront the witnesses against them, to a speedy trial, and even to demand a court-appointed attorney if they cannot afford one themselves.' It concluded, 'Defendants before this Tribunal, then, have the presumptive right to represent themselves notwithstanding a Trial Chamber's judgment that they would be better off if represented by counsel.'

That does not mean the right is absolute, the Panel went on to say, citing with approval the unanimous conclusion of contemporary war crimes tribunals. The right may be qualified, under appropriate circumstances, if an accused's self-representation is 'substantially and persistently obstructing the proper and expeditious conduct of his trial.'

While the Appeals Panel upheld the Trial Chamber's imposition of counsel as a proper exercise of its discretion, it also noted that it considered the issue 'close,' perhaps indicating it would have proceeded more cautiously and appointed standby counsel, which is effectively what it did. Nevertheless, the Appeals Panel upheld the principle that decisions within a trial chamber's discretion will not be overturned absent an abuse of that discretion. In that case, an appeals chamber may not substitute its decision for that of a trial chamber.

In striking down the Trial Chamber's modalities under which appointed counsel is to work, the Appeals Panel emphasized that the right to represent oneself is a fundamental right and, therefore, any limitations on that right must be the least restrictive necessary to accomplish an important objective, such as completion of a trial in a reasonably expeditious manner. It ruled that the Trial Chamber had not given proper consideration to indications of possible improvement in Mr. Milosevic's medical condition, i.e. 1) medical reports rejected that his condition is permanent, 2) he has had no reported health problems since July, 3) he 'made a vigorous two-day opening statement without interruption or apparent difficulty.'

The Appeals Panel upheld the Trial Chamber's refusal to order more medical exams, stating in a footnote that the Accused effectively waived any challenge to the medical reports by not objecting until the last minute. 'With respect, we find implausible Assigned Counsel's suggestion that 'it had not crossed Milosevic's mind that counsel [might] be imposed on him' until September 1.'

The next step is for the Trial Chamber to issue new modalities in line with the Appeals Chamber's ruling. The lower court must also respond to Appointed Counsel's request to withdraw. Given the Appeals Chamber's decision, one might anticipate that the Trial Chamber will press Appointed Counsel to reconsider. The other open question is whether the Accused will be willing to proceed under a regime where he effectively has standby counsel, an eventuality he rejected in oral argument before the Appeals Chamber. In this case, it is likely he will resume as before, while refusing to acknowledge or involve Appointed Counsel in his defence. That puts off confrontation with the Trial Chamber until some point in the future when Milosevic's illness next keeps him out of court.

While it may appear that Milosevic has won this round, the Appeals Chamber was careful to uphold the authority of the Trial Court. It left for another day (and perhaps another proceeding) the underlying question of what use an accused will be allowed to make of the legal process that calls him to account for serious violations of international law.