Prosecution, Amici Present Views on Future of Trial

Not for the first time, the Prosecution (OTP) urged the Trial Court to impose counsel on Slobodan Milosevic against his wishes. Noting that 'the trial process is being compromised by the inability of the Accused to conduct his own defence,' the OTP recommended that imposed counsel be given 'full discretion as to how to act.' In other words, the Accused's refusal to cooperate with counsel should not obstruct counsel's ability to present a defence. The OTP made its submission in response to the Trial Chamber's directive, as it determines how best to move the Milosevic case forward following nearly a half year's adjournment.

According to the OTP, the Milosevic case belongs to an emerging class of cases where the court should impose defence counsel at the outset. The class is characterized by the defendants' refusal to recognize the legitimacy of the courts which are trying them and their insistence on 'self-representation' as a way to challenge the court rather than conduct a defence.

Milosevic has consistently refused to recognize the legitimacy of the ICTY from the beginning. '[H]is defence can be characterised in part as a political rather than a legal defence,' the OTP wrote in its submission, pointing out the Court's recognition that he repeatedly uses his court time to make political speeches. '[T]he Accused has endeavoured to 'hi-jack' the trial to his agenda while cleverly engaging in conduct just short of obstructive, just less than disruptive,' the OTP continued. '[H]e is clearly not interested in the just and fair resolution of the proceedings,' the submission concluded.

In a lengthy legal argument, the OTP cited extensive authority -- from both civil and common law jurisdictions -- establishing that the Court's overriding duty is to render justice, to the public and the victims, as well as the accused. Its decisions must uphold the integrity of the legal process.

In this special class of cases that may mean effectively gagging an accused. The integrity of the process requires a legitimate defence, not a proceeding hijacked for the political purposes of the accused. Where the defendant will not abide by the rules, the court must appoint counsel who will.

The Prosecution submitted: 'The duty of a court is to deliver justice in a way that inspires public confidence. Of course the court must respect the basic and fundamental rights of any accused. But it must not do this at the expense of rendering itself incapable of performing its prime function. The accused should never be permitted to hold a trial to ransom in the way that, effectively, the accused is doing in this case.'

While Milosevic's recurring ill health has impacted his ability to defend himself (and vice versa), the OTP stressed that the length and unmanageability of the trial is perhaps more the result of his insistence on using the process to promote his political agenda. It has led to speech making, and repetitive and irrelevant cross examination which have consumed more than half the time allotted for the Prosecution's case, as well as taking a toll on the Accused's health. In a companion submission opposing severance of the indictments, the Prosecution argued: 'His personal preparation of the defence case has clearly aggravated his poor health so as to have compromised the timetable of the trial in circumstances where a rational decision -- to be assisted by counsel -- would have saved the Accused's health, better identified the real issues in the trial and reduced the time the trial has taken.' In sum, the OTP's position is that Milosevic is fit to stand trial, but not fit to conduct his own defence.

In urging the Court to impose counsel to take full charge of the defence case, the OTP noted that in both civil and common law jurisdictions defence counsel has responsibility for the overall defence strategy and, therefore, discretion to make decisions against the accused's wishes, subject to certain limitations. Counsel must also act within his or her professional mandates as an officer of the court with responsibility to uphold the integrity of the process. Counsel cannot advocate an illegitimate defence.

The Prosecution wrote: 'The general conclusion of the prosecution [to fully impose counsel] may seem unappealingly Draconian. In truth it is not. It is a recognition that courts have to deliver justice and must never allow themselves to be manipulated, subtly or otherwise, by accused who have no real interest in seeing a judicial process brought to a proper conclusion.'

Having so strongly stated its case, the Prosecution went on to suggest that imposed counsel could be held in reserve if Milosevic were to appoint counsel to act in his behalf, which he should be invited to do. Milosevic, however, should be prohibited from personally preparing witnesses, as the OTP suggests this is what 'renders him unfit for attendance at court.' (Whatever information this conclusion is based on has not been made public.) The Amici Curiae are best placed to act as 'imposed counsel,' according to the OTP, while Milosevic's associates could easily take the role of his appointed counsel. If Milosevic appoints counsel, he would work with them to identify witnesses, which would be examined in court by appointed counsel rather than imposed counsel. The Prosecution further suggests that Milosevic should also be allowed to ask questions of every witness called, though for a 'modest' amount of time. Even if the Accused declines to appoint counsel, he should be invited to participate in identifying witnesses to be called.

Through these suggestions, the OTP seeks to soften its plea for the imposition of counsel with full powers to run the case. In effect, they are offering Milosevic every opportunity to continue his active participation in the case save his insistence on running it himself for political purposes and to his own detriment. As the Prosecution also pointed out, however, the Court 'will have to be prepared to be actively involved in management of the Accused's defence case.' [emphasis in original] Indeed, allowing Milosevic, in addition to defence counsel, to question witnesses would require vigilant and firm policing by the Court to keep it relevant and brief. The scenario provides an opportunity for continuing controversy, frustration and time consumption.

Both the Prosecution and the Amici, acting at the request of the Accused through one of his associates, strongly oppose severing any of the three indictments (Croatia, Bosnia and Kosovo) that were joined in February 2002 to constitute this case. The Appeals Chamber approved the joinder because the three indictments constitute one transaction defined by the Prosecution as a joint criminal enterprise to remove non-Serbs from areas the Serb authorities wished to control. To sever the indictments at this stage would require the Accused to answer a different case than the one presented by the Prosecution, with obvious implications for fairness. It would also introduce practical problems, while requiring more time and effort for the defence to answer two or more cases. Severance at this stage looks more like a 'rush to judgment' (in the words of the OTP) than a way to approach it fairly.

The Prosecution expressed the view: 'It may be that the value of due criminal process is as much in the process itself as in the particular judgements returned, although they are, of course, the end point of judicial process. It may be more important that an accused is properly and publicly tried as far as other circumstances allow . . . than that some conclusion be returned . . . .' [emphasis in original] It reminded the Court that the trials serve a broader public purpose, exposing and testing the facts presented by two sides as a contribution to the historical record. Expressing its belief that severance effectively means only one case will be concluded, the OTP quoted another Trial Chamber in its sentencing judgment of Momir Nikolic, who pled guilty to persecution associated with the Srebrenica massacres: 'The quality of the justice and the fulfilment of the mandate of the Tribunal, including the establishment of a complete and accurate record of the crimes committed in the former Yugoslavia, must not be compromised.'

If the Court were to choose severance despite the OTP's and the Accused's strong objections, the OTP argues that the cases should proceed chronologically, beginning with Croatia/Bosnia, followed by Kosovo. Any other order risks being misinterpreted as a ranking of victims, while beginning with Kosovo risks eclipsing the question of Milosevic's guilt by an examination of NATO bombing, according to the OTP. The Amici favored concluding the Kosovo case first, given that it was the first part of the Prosecution's case to be presented and differs from the other two in that Milosevic is charged with direct responsibility as commander in chief of the Yugoslav Army. The Amici also advised the Court that, if it decides for severance, the Accused should be given additional time to prepare his defence and should be allotted 150 days to present his defence on the Kosovo charges. Currently, the Court has granted the Accused 150 days for his defence on all three cases.

There is no indication when the Court will make a decision on how the Milosevic trial will proceed, though one might expect it before August 31, when the trial is set to resume with the opening of the defence case.