Prosecution Asks Court to Appoint Defense Counsel: Milosevic unable to defend himself

'The Trial Chamber should give serious consideration to imposing defence counsel on the accused in order to avoid further disruption and delay and to ensure a fair and expeditious trial,' according to ICTY Chief Prosecutor Carla Del Ponte. Her statement was made in a written submission requested by the Trial Chamber a week ago when Milosevic did not appear in court due to 'exhaustion.' At that time, the Court expressed its concern about the completion of the trial given Milosevic's repeated illnesses and asked the parties to address it 'on the future conduct of the case in order to insure its expeditious conclusion.'

The Prosecutor's submission cautioned the Chamber about ordering any further steps to reduce the prosecution's case, as a way to reach an expeditious conclusion. 'This prosecution is arguably the most significant trial ever to be held of a political leader and Head of State,' Mrs. Del Ponte wrote. 'By the indictment he faces, the accused is alleged to be considered as perhaps the principal cause of much of the crime, tragedy and misery occasioned by the three wars covered by the charges.' As such, justice would not be served by abbreviating the prosecution's case in response to Milosevic's medical condition which is at least exacerbated by his insistence on representing himself. Mrs. Del Ponte's submission continues, 'It would also create a very dangerous precedent to allow difficulties that are largely self-imposed to obtain for the accused a trial that is significantly less complete than it would otherwise be.'

Mrs. Del Ponte went on to point out that the ICTY statute allows for the involuntary imposition of counsel on an accused. It does not provide an absolute right to represent oneself. In this regard, she wrote, civil law systems, including the former Yugoslavia, differ from common law systems, which often provide that an accused has the right to represent himself. France, Belgium, Germany and Denmark, among others, require representation by counsel, at least in serious criminal cases. ICTY appellate jurisprudence has not definitively addressed the issue.

Other measures the Prosecutor invited the Trial Chamber to consider included: devising a more flexible method for determining the time allowed for cross examination than the strict equal time approach the court has been following; allowing 92bis statements to be received fully in writing without cross examination, since they are limited to cumulative or background evidence; if the Court accepts the former, the prosecutor would submit most of the crimebase evidence in writing, saving oral testimony for matters concerning the acts and conduct of the accused; taking judicial notice of facts that have been finally adjudicated in other proceedings before the ICTY; allowing the use of witnesses who can summarize evidence of large numbers of crimebase witnesses. The Prosecutor emphasized that she is suggesting the above measures be considered in addition to the imposition of defense counsel. Her suggestion for defense counsel is the two amici, who are familiar with the case.

The latest recess is the third occasioned by Milosevic's illnesses since the trial began in February. All three have lasted for extended periods. Even without these delays, the trial was anticipated to last between 2 ½ to 3 years. Given that steps taken by the Court thus far to reduce the strain on Milosevic have not proved effective, it is clear more will have to be done.

The Trial Chamber invited the amici curiae and the accused to make submissions as well. By the end of Friday, none was available to the public. In addition, the Court has requested a new medical report on the state of the accused's health. It has not set a date for further consideration of the matter.