Milosevic's Latest Illness – Raises Questions About Proceeding Without Accused at the Helm of Defense: Issues and Analysis
Milosevic's Latest Illness – Raises Questions About Proceeding Without Accused at the Helm of Defense: Issues and Analysis
Introduction: Milosevic out, proceedings grind to a halt
During the week of 19 April, Slobodan Milosevic was absent from court due to a bout of severely elevated blood pressure, which doctors classified as 'dangerously high' (reportedly reaching 215/130). The Trial Chamber cited a physicians' report which concluded that Milosevic's attendance of court proceedings and any strenuous activities (including trial preparation) would have placed him at a heightened risk for a 'cardiovascular event.'
On Tuesday 19 April, proceedings ground to halt as his witness, former Kosovo 'Serbian Resistance' movement leader Kosta Bulatovic refused to testify under cross-examination without the accused in the courtroom. The Trial Chamber instructed Bulatovic to answer Prosecutor Geoffrey Nice's questions and noted that court-assigned counsel Steven Kay and Gillian Higgins would competently defend the examination. The witness remained adamant in his refusal to answer and was amply warned by the bench about the gravity and possible consequences of his behavior. The next day, with Milosevic still out and Bulatovic still refusing to testify, the court instituted contempt proceedings against the defiant witness.
Bulatovic's court-assigned counsel, Mr. Stephane Bourgon argued that Bulatovic might not have been in contempt after all because the trial could not proceed with the accused absent due to international standards prohibiting trials in absentia. With no accused in the courtroom, the trial could not go forward without jeopardizing the defendant's rights Bourgon argued and therefore, the witness need not have been compelled to testify.
Issue: Can the trial proceed without Milosevic physically present?
Slobodan Milosevic's brief absence last week raised the issue of whether it is appropriate for the trial to proceed without him physically present in the courtroom. The short answer is 'no' – trial should not in general proceed without the accused present, unless the defendant knowingly waives his right to be present. Worries about a trial in absentia however, should not be over-emphasized. A defendant should always be present (physically and mentally) so that he can follow and understand the proceedings against him. However, guiding procedural principles of international law are less clear as to whether an accused must be always present in the capacity of courtroom lawyer for his trial to continue.
The Standard
Trials in absentia are generally considered antithetical to judicial fairness. The statute of the ICTY, Article 21(4)(d) guarantees the accused 'to be tried in his presence.' This right is grounded in International Covenant on Civil and Political Rights Article 14(3)(d). In fact, the Report of the Secretary-General on the establishment of the ICTY noted, 'There is a widespread perception that trials in absentia should not be provided for in the statute as this would not be consistent with article 14 of the ICCPR.' This principle is also echoed in Article 63 of the Statute of the International Criminal Court which reads, 'The accused shall be present during the trial.'
The right of the accused to be present during proceedings against him is not unconditional however. In general, this right is waived if the accused 1) voluntarily flees the jurisdiction after commencement of trial; or 2) the accused disrupts the proceedings. According to international law, even if the accused cannot sit in the courtroom, the court must take measures to allow the defendant to observe the proceedings against him and ensure that he is adequately represented by counsel. Article 63(2) of the ICC's Statute provides that 'If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.'
Distinguishing Milosevic as Defendant and Milosevic as lawyer - not necessarily a question of trial in absentia
According to the Commentary on the ICC Statute (Cassese,
When Milosevic returned to court last week, he began the proceedings by referring to the ICCPR and the ICTY Statute's guarantees for a trial in the presence of the accused and intimated that his rights had been violated when the Trial Chamber attempted to proceed without him. Technically, the proceedings did occur without Milosevic in the courtroom that day, but the term 'in absentia' should be carefully employed when considering the broader picture.
The right to be physically present at trial, guaranteed by various human rights instruments is 'associated with full understanding of proceedings and the exercise of rights,' (Commentary on the ICC Statute). In this instant scenario, the accused would not be deprived of an understanding of the proceedings – he would receive a transcript and videotape, nor would he be deprived an opportunity to exercise his right to participate in his defense – he would allowed re-direct examination. He has also been granted the opportunity to face his accusers the OTP – every day he sits in court. The rights of Milosevic as accused would not necessarily be violated, but the ability of Milosevic as a defense counsel might suffer slightly. This is a critical distinction as the right of an accused to be tried in his presence is nearly inviolable except in the two narrow circumstances of flight or disruption, whereas the right to represent oneself carries many more restrictions. To be sure, an accused has a statutory right to examine witnesses as set out in Article 21(4)(e) – but case law from other jurisdictions is instructive in demonstrating that this right too, has limits.
For example, some state courts and federal circuits in the
Milosevic has voluntarily repudiated the opportunity to obtain assistance in his trial preparation and presentation
As a defense lawyer, Milosevic need not suffer however. Defense teams are often employed for high-profile or large-scale civil and criminal litigation because of the volume of work involved. Often a lead attorney will defer to an associate to argue or defend a particular aspect of the case – and often the lead attorney will be absent due to involuntary circumstances – but that does not mean that the court proceedings must stop.
It has been commonly observed at the ICTY that defense plays David to the OTP's Goliath in terms of resources and staffing – but Milosevic himself has a small team of associates working for him and could easily instruct lawyers of his own choosing (or even Mr. Kay or Ms. Higgins) to carry out the defense that he desires. Milosevic does not need to be conducting every facet of his case in order to be in control of his defense. In fact, on more intricate procedural matters, he has fallen into the habit of sitting back and allowing Mr. Kay to argue the technicalities – sometimes even agreeing with Kay's observations if it suits him.
Milosevic's Health – an involuntary condition exacerbated by voluntary behavior
The medical discussion surrounding Milosevic's absence points to the rigors of wading through thousands of documents, preparing witnesses and exhibits and conducting the courtroom defense as a leading danger to Milosevic's health. By representing himself however, Milosevic has voluntarily increased his own stress level and allowed his health problems to influence discussions over the fairness of the proceedings.
There is a major difference between being fit (both mentally and physically) to stand trial and being fit to conduct a rigorous defense case that would typically be the burden of several vigorous lawyers. The protections guaranteed by the Tribunal's statute and enshrined in leading human rights treaties are designed to protect the rights of the accused to be present and understand and follow the proceedings against him. And while the ICTY Statute does also guarantee the right to self-representation (Article 21), it does not necessarily follow that this right trumps any interests of the Trial Chamber or Prosecution or public. The ICTY Appeals Chamber, citing the US Supreme Court case of Faretta v. California noted that 'the right of self-representation is not a license to abuse the dignity of the courtroom.' In the Faretta case, the Supreme Court held that a judge 'may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.'
Here, there are no accusations that the health problems of the accused are the result of any deliberate or obstructionist misconduct. However, in the wider context of how Milosevic has conducted his defense to date, Milosevic has not followed many of the rules designed to ensure an efficient and fair trial.
Trial progress thus far – a voluntary condition exacerbated by voluntary behavior
This entire episode came at an interesting junction in the proceedings. During the previous week, Trial Chamber III held a status conference to assess the progress made so far in the defense case. With nearly 50 trial days already used (or approximately one third of his total allotted 150 days) Milosevic was still nowhere near completing his defense on the Kosovo indictment, one of three cases filed against him. During the status conference, Milosevic was encouraged to make full use of procedural mechanisms such as Rule 92bis which allows witness testimony to be submitted in the form of a written statement, thus cutting down on trial-time for direct examination in court. It was noted that the Prosecution had submitted nearly two thirds of its testimonial evidence through such witness statements thereby shortening its courtroom presentation. Milosevic rejected this option arguing that live witness testimony was essential to his presentation.
The bench also chastised Milosevic for failing to make the relevant arrangements and applications for certain witnesses who might require government waivers or subpoenas as well as for not being able to set out with any useful specificity those subjects his witnesses (both expert and factual) would be testifying about. Milosevic's examination of forensic scientist Dr. Slavisa Dobricanin several weeks ago underscored this important procedural distinction as Dr. Dobricanin was called as a fact witness but was repeatedly asked to give his expert opinion on forensic evidence concerning killings at Racak. The rules of procedure at the ICTY (and in other jurisdictions) require a party to provide a written summary of the materials the expert will be testifying on in order to allow the other side to prepare its own questioning (typically by consulting its own experts – as preparation of this sort often requires more time to wade through highly technical issues and thus the rationale for the advance notice). During other sessions, an exasperated Judge Robinson has admonished Milosevic for failing to produce translated documents on time for the Chamber and the Prosecution - thereby further impeding the ability of the Chamber to consider the evidence and the Prosecution to cross examine on it.
Finally, the Trial Chamber raised the matter of extending the sitting time from the current three-day-a-week schedule to four days a week, which prompted strong resistance by the accused.
During the prosecution's case, the trial was delayed by 66 days over 13 suspensions of proceedings due to Mr. Milosevic's poor health. The Defense case opened six months after the Prosecution rested due to further delays caused by the accused's health problems and was delayed once in February due to Milosevic's bout with influenza.
Balancing of Interests
While the accused has been granted a bundle of procedural rights to ensure a fair trial (including his right to present during proceedings) those rights must be balanced against the interests of the Court, the public and the Prosecution to achieve proper and efficient administration of justice. For the Trial Chamber and the Prosecution, the Milosevic case is one of several dozen now pending before the ICTY and both the judges and the OTP have a strong interest in completing this trial which has lasted over two years already (due in part to the broad scope of the case and also to the delays caused by the accused's poor health) so that they can turn their attention to other cases. But the benefits of judicial economy do not only concern scheduling and caseloads – a well-managed trial that proceeds along a predictable timeline can be crucial for ensuring that the truth is properly elicited. Witnesses' memories fade over time and frequent interruptions of testimony can hurt the ability of the person giving the testimony as well as the prosecution's effective cross-examination of that declarant. Time is not only lost due to the halting of proceedings, but witnesses must be re-prepared after lengthy delays.
The Appeals Chamber ruling – The trial may continue
The jurisprudence of the Tribunal's Appeal Chamber has been clear on this issue. In its decision of 1 November 2004 on the Trial Chamber's Decision on the Assignment of Defense Counsel, the Appeals Chamber balanced the interest of the defendant to represent himself and take the lead in doing so (as opposed to being relegated to a 'second-tier' role in occasionally being allowed to examine witnesses when the bench deemed appropriate) with the court's 'basic interest in a reasonably expeditious resolution of the cases before it.' The Appeal's Chamber held that the presence of assigned counsel should allow the proceedings to go forward 'even if Milosevic is temporarily unable to participate' due to his health.
Was the Bulatovic incident an appropriate implementation of the Appeals Chamber Ruling?
A short absence like that which Mr. Milosevic experienced several weeks ago might not be what the Appeals Chamber had anticipated when it held that the presence of assigned counsel should allow the proceedings to go forward 'even if Milosevic is temporarily unable to participate' due to his health. The Trial Chamber would have gained only several short hours of testimony and opened itself up (as it did) to criticisms that it was about to launch a trial in absentia at a moment when Milosevic was absent involuntarily. However, even if the proceedings did continue, little, if any prejudice would have been visited upon Milosevic.
Firstly, Milosevic had already completed his direct examination of the witness and it was the Prosecutor's turn to cross-examine, and so there is very little for the defense to do except to raise objections to the style or form of the Prosecution's questioning. Assigned defense counsel Kay and Higgins are fully able to do so even if they have been kept out of the loop as to Milosevic's trial strategy – they only need to raise proper objections against the Prosecutor's questions. In fact, Milosevic rarely makes the sort of technical objections as to the form of questions which can be helpful in preventing certain testimony from being elicited and which as a tactical matter can break up the rhythm, flow and momentum of the prosecutor's cross-examination. Allowing the Prosecutor to finish the cross-examination of the witness Bulatovic would have had minimal to no prejudicial effect on Milosevic's defense – the trial chamber was willing to provide him with a transcript and video of the cross examination and would of course provide an opportunity for re-direct. In fact, last week, when the cross-examination actually occurred, Milosevic wound up making no objections.
Conclusions
The Trial Chamber has been granted the discretion to decide when and where it is appropriate to continue the trial of Slobodan Milosevic if the accused is out sick and unable to lead his defense. This is not the same as considering whether to continue the trial in the absence of the defendant Milosevic. Milosevic, the defendant, can sit in the courtroom and face his accusers, can follow the proceedings and can even participate in his own defense – all of the rights envisioned by the ICCPR and the Statute of the ICTY – without physically leading the defense every day. The rights imbued to Milosevic as a defendant should not be confused with the duties and rights that Milosevic has as a lawyer - as a defendant he has many more inviolable rights than as counsel, where he has many more obligations. Milosevic has announced his intention to call hundreds of witnesses to testify in his defense – this is completely voluntarily and he need not put on any defense if he believes the Prosecution has not met its burden of proof. Having called his witnesses to testify, they are bound by the rules of court procedure. He can present them or he can instruct and direct able counsel to do so if he is too sick to do it himself – but he has refused this opportunity.
Finally, one must consider Milosevic's refusal to seek the assistance of counsel (and to take on the burden of his own defense) in the context of his oft-stated refusal to acknowledge the legitimacy of the ICTY and its proceedings. Milosevic may say that he wants to exercise his right to defend himself before the ICTY, but first and foremost, he has publicly stated that the tribunal and his trial are illegitimate and should not be recognized. To be sure, if Milosevic's health problems continue to halt the proceedings and trial cannot go forward, he will have achieved his best defense.
