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Court Appoints Standby Counsel in Seselj Case

In a well-reasoned decision, the ICTY's Trial Chamber II ordered the Registrar to appoint standby counsel over the objection of the accused, Vojislav Seselj. Earlier, Seselj advised the Chamber that he wished to represent himself. The prosecutor, aware of Seselj's reputation for histrionics and his proclaimed intent to 'use the Tribunal as a political stage and source of media attention,' filed a motion requesting the Chamber to appoint counsel over the Accused's objection. In a 93 page handwritten response, Seselj emphasized that his decision to represent himself was 'final and irrevocable.'

The Court, however, demonstrated that it, and not the accused, is in charge of the proceedings. It ruled that the right of an accused to defend himself is not absolute. The Court has an overriding duty to ensure a fair trial, which is not only a right of the accused but 'a fundamental interest of the Tribunal related to its own legitimacy.' An accused -- 'even a legally qualified accused' -- may simply not have the skills to deal with a lengthy case involving complex legal, evidential and procedural issues. In addition, the Court is responsible for 'ensuring that the trial proceeds in a timely manner without interruptions, adjournments or disruptions.'

In reaching its decision to appoint standby counsel, the Chamber noted there was good cause for concern that Seselj might attempt to disrupt the trial in light of 'his declared intention to attempt to use the Tribunal as a vehicle for the furtherance of his political beliefs and aspirations.' The Court was not about to let itself be used to promote Seselj's brand of Serbian nationalism. Writing for the Chamber, Judge Schomburg stated that Seselj has already demonstrated an obstructionist tendency, as well as a need for legal assistance. 'His handwritten 'Reply to the Prosecutor's Motion to impose defence counsel on me against my will' was not only excessively long but also largely irrelevant.' Judge Schomburg noted that the accused submitted a 116 page handwritten motion in violation of a rule limiting motions to 10 pages and filed an unauthorized petition with the Appeals Chamber (also handwritten), among other improper pleadings. His response in the present proceeding was 93 pages, of which only 13 concerned the legal question at issue. The Chamber suggested this amounted to 'a frivolous abuse of the Tribunal's Translation unit.'

Seselj also made dramatic oral and written objections to the Tribunal's alleged failure to conduct the initial proceedings in a language he understands. He contended that the local language used by the Tribunal was incomprehensible to him. He rejected any variation from a strictly Serbian version of the language officially known as Serbo-Croatian and called B/C/S or Bosnian/Serbian/Croatian at the Tribunal. Renaming the language and emphasizing or creating differences among the variations spoken by different ethnic or national groups was a way of promoting nationalist agendas in the former Yugoslavia. Yet the distinctions are no greater than between the English spoken in Great Britain and that spoken in the United States. The variances are not an impediment to comprehension.

The Trial Chamber was having none of Seselj's manipulations. In addition to stating that the words he claimed not to understand were 'simple variants of one and the same language,' the Chamber pointed out there was 'reason to believe that the Accused understands English,' one of the official languages of the Tribunal. He is reported to have spent a year teaching at the University of Michigan in the United States. The Chamber found that this frivolous issue as well as the improper motions, improperly filed were 'indicative of obstructionism' on Seselj's part and of his need for legal assistance.

The Court rejected the prosecution's motion that counsel be imposed on the accused against his wishes -- at least at this stage. It did, however, take decisive action, which includes the possibility of imposing counsel at a later stage. Trial Chamber II held: '[A]t this stage of the proceedings, the best way to preserve the rights of the Accused while at the same time satisfying the interests of justice is to assign a 'standby counsel' fulfilling the requirements of Rule 44(A).' The Chamber went on to 'strictly' define the role of standby counsel.

At this stage, standby counsel, who is to be appointed by the Registry from the list it maintains, is to assist the accused at the pretrial and trial phase with the preparation and presentation of his case 'whenever so requested by the Accused.' Given Seselj's actions to date it appears unlikely he'll make such a request. Nevertheless, the ruling makes clear that the purpose of standby counsel is to ensure that a qualified attorney is prepared to take over the case should that become necessary. That requires ongoing, day to day involvement. The Chamber's decision provides that standby counsel is to receive all appropriate documents, to be present in the courtroom during the proceedings and 'to be engaged actively in the substantive preparation of the case and to participate in the proceedings, in order always to be prepared to take over from the Accused at trial. . . .' His or her role also provides for addressing the Chamber whenever requested by the Chamber or the accused and offering advice to the accused 'as counsel sees fit, in particular on evidential and procedural issues. . . .' Again, it is unlikely Seselj will welcome or accept such advice.

The final defining points of the role of standby counsel are the most critical. The first provides that 'in the event of abusive conduct by the Accused,' standby counsel can take over and question sensitive or protected witnesses. The Chamber points out in a footnote that this will be less intrusive than ending an abusive cross examination. Where standby counsel takes over, the Chamber stressed that the Accused still maintains his right to control the content of the examination. In other words, he may identify the issues he wants standby counsel to question the witness about.

Last, the Chamber's ruling allows standby counsel to take over the defence at trial if the Chamber finds, 'following a warning, that the Accused is engaging in disruptive conduct or conduct requiring his removal from the courtroom under Rule 80(B).' While the Chamber makes clear this is to occur in 'exceptional circumstances' only, it also makes clear that it will not tolerate any of Seselj's antics which attempt to make a sideshow of the proceedings. It has put him on notice.

In reaching its conclusion that the right to represent oneself before the ICTY is not absolute, and limits may be required to ensure the integrity of the process as well as a fair trial, Trial Chamber II took a different approach than Trial Chamber I in the Milosevic case. Trial Chamber II had the advantage of watching more than a year of the Milosevic trial, where Milosevic has pushed the Court to its limits of tolerance, while wasting significant time with irrelevant and repetitious cross examination. This has required Presiding Judge Richard May to continually intervene in Milosevic's cross examination and sometimes to stop it altogether. Milosevic's self-representation has also limited time available for the prosecution to prove its case and has greatly lengthened the trial. It is likely that Trial Chamber II wants to avoid these problems, which could well be exacerbated given Seselj's greater flare for the outrageous than Milosevic has demonstrated in his career.

In a recent ruling, Trial Chamber I denied the prosecutor's motion to impose counsel on Milosevic finding that it is 'not normally appropriate in adversarial proceedings.' However, as Trial Chamber II noted, the other Chamber also stated that 'the right to defend oneself in person is not absolute' and observed that 'there may be circumstances . . . where it is in the interests of justice to appoint counsel.' Trial Chamber II further pointed out that the Milosevic court had appointed three Amici Curiae and two legal associates to assist in assuring that the Accused's interests are protected. Standby counsel is different from and fills a different role than either the Amici or Milosevic's legal assistants. While the Amici's role is to assist the Court, the legal assistants take no part in the proceedings and are solely at the disposal of the accused. Standby counsel, as defined by Trial Chamber II, will be actively involved in the proceedings, ready to take over from the accused (Seselj) on a moment's notice as directed by the Court.

By ordering the appointment of standby counsel, Trial Chamber II has forcefully demonstrated that it will not allow the Tribunal and the process of international justice to be abused and mocked by those who refuse to recognize its legitimacy. In its decision, the Chamber recognizes its overriding responsibility to preserve and maintain the integrity of the judicial process. That includes assuring that trials are fair -- to the accused as well as the public who seek justice for crimes of unimaginable cruelty. In spite of himself, Seselj will receive a fair trial.