Self-Representation Is A Fundamental Right, Argue Defence Counsel

In a forty-five page brief, Defence Counsel asked the ICTY Appeals Chamber to overturn the Trial Court's decision to appoint counsel to defend Slobodan Milosevic. Mr. Kay and Ms. Higgins argued that an accused has a fundamental right to represent himself, which is one of a number of minimum guarantees for securing a fair trial. The Trial Chamber erred, they contended, by holding that the right of self-representation is a qualified right and only one means of achieving the overarching requirement of a fair trial.

Based on its strict and literal interpretation of the ICTY Statute, Defence Counsel also argued that the right to a fair trial belongs solely to the accused, not to the public and not to victims. There is nothing in the Trial Chamber's decision to support the assertion that the trial's numerous delays due to Milosevic's illness have caused any unfairness to him, according to the brief. Defence Counsel suggest that the Trial Chamber was unreasonable in appointing counsel without first considering a reduced trial schedule from the current three partial days a week and other possible alternatives.

While this appears to be a fair representation of Milosevic's position, it fails to take account of the Court's overriding obligation to see justice done. Under this construction of the Statute, the trial could be extended indefinitely into the future if the Accused so requires due to his deteriorating health. Defence Counsel did not address the Statute's requirement that a trial be fair and expeditious.

The appeal also challenged the Trial Chamber's analysis of relevant cases in the ICTY and other international tribunals which held that the right to counsel is not absolute. Defence Counsel maintained those cases can be distinguished from the present case, since they involved deliberate misconduct. The Trial Chamber considered them not distinguishable for the reason that, 'There is no difference in principle between deliberate misconduct which disrupts the proceedings and any other circumstance which so disrupts the proceedings as to threaten the integrity of the trial.' In the Milosevic case, the disrupting circumstance is the interaction between his chronic illness and his self-representation, resulting in a trial already well into its third year without an end in sight.

Mr. Kay and Ms. Higgins also take the position that the risks Mr. Milosevic takes with his health should be no concern to the Trial Chamber. Where medical experts have determined that he would put his life at risk if he were to continue representing himself, it is doubtful the Appeals Chamber will agree, anymore than they would agree not to interfere with a prisoner's declared intention to commit suicide while in Tribunal custody.

In the event the Appeals Chamber determines that the right to self-representation can be qualified in the circumstances of the Milosevic case, Defence Counsel argue that his fitness to stand trial at all should have been medically assessed, that the Trial Court acted unreasonably by denying his request to be further examined by physicians of his choice, and that it should have updated the medical conclusions that he was unfit to conduct his defence at the time the trial resumed 51 days after the conclusions were reached.

The brief also claims the Trial Chamber didn't properly assess the practical difficulties involved in assigning counsel against the will of the Accused. Since Mr. Milosevic refuses to cooperate with assigned counsel, they cannot know or put forward the defence he wishes. A significant number of witnesses have refused to cooperate, and the Accused himself may refuse to testify. Moreover, appointment of counsel may require further delay for counsel to prepare the defence without the Accused's cooperation. It should be noted that most of these difficulties are ascribable to Mr. Milosevic. Indeed, Defence Counsel argue that '[T]he way in which it [the Trial Chamber] assigned counsel to the Accused has led to a complete breakdown of the Accused's cooperation within the trial process,' as if the Court must please the Accused above all other considerations.

Defence Counsel also object to the Trial Chamber's direction that they examine witnesses first, before Mr. Milosevic is given the opportunity to request to examine them. '[T]he Trial Chamber has placed the burden of the presentation of the defence case and the questioning of witnesses upon the Assigned Counsel.' That is exactly what the Trial Chamber did and intended to do. As it said in rejecting Mr. Kay's submission that Mr. Milosevic be allowed to question witnesses first, it would have changed nothing from the way the trial had been conducted since the beginning when Mr. Kay was acting as amici curiae. Mr. Kay maintains that his questioning of witnesses before the Accused without his cooperation 'can never accurately reflect his case.' Defence Counsel ask the Appeals Chamber to replace assigned counsel to represent the Accused with standby counsel to assist him.

In their brief, Mr. Kay and Ms. Higgins also advise the Appeals Chamber that they 'have encountered wholesale refusals to testify by witnesses on the Accused's witness list,' therefore, they are considering requesting subpoenas and binding orders. They request an expedited oral hearing so that the Accused may make oral presentations to the Appeals Chamber.

The major difference between Defence Counsel's and the Trial Chamber's positions concerns the nature of the statutory right to represent oneself -- whether it is an absolute and fundamental right of an accused, essential for a fair trial, which can only be derogated to prevent intentional obstruction of the trial, or whether it is one method of securing the greater right to a fair trial which may be limited when necessary to insure that greater right. An equally important issue raised by the Defence brief is whether the fair trial right is exclusively the right of an accused, or whether the public and victims have recognizable interests that must be considered as well.

The Prosecution will submit its brief within two weeks.