Milosevic Court Issues Written Reasons for Assigning Defence Counsel

As the Milosevic trial stands adjourned for a month to enable Defence Counsel to prepare its case in the absence of cooperation from the Accused, the Trial Chamber issued written reasons for assigning defence counsel over the objections of the Accused. The written reasons are a fuller explanation of the Trial Chamber's oral ruling on September 2, 2004, when it decided that the interests of justice required the appointment of counsel to represent Milosevic in view of his recurring and serious health problems. They will be considered by the Appeals Chamber when it reviews the decision.

In 16 paragraphs, the Chamber set out the long history of proceedings which began with Milosevic's refusal to plead to charges or have a lawyer represent him and culminated in the Court's recent decision to appoint counsel. In the intervening three years, the trial was adjourned 12 times for a loss of 66 trial days. Fifty-one additional weekdays were lost during the three-month adjournment following the close of the Prosecution's case, resulting in five more postponements for the start of the Defence case. This excessive loss of time in an already complex and lengthy trial was caused by the ill health of the Accused, resulting from his chronic hypertension and heart disease.

The Trial Chamber reviewed the positions of the parties which have remained consistent over time. Since the first status conference on August 30, 2001, the Prosecution has requested the Court to appoint professional counsel to represent or assist the Accused. Amici Curiae, appointed to assist the Court in protecting the rights of a self-represented accused, have argued for Milosevic's right to defend himself, going so far as to say that if he is physically unable to carry on his own defence, the trial should be adjourned and he should be provisionally released. The Accused himself has never varied from his insistence on the right to represent himself, though he does not recognize the legitimacy of the Court and refuses to offer a legal defence, using the trial as a platform to advance his political agenda.

Before turning to an examination of medical reports, the Trial Chamber surveyed the law on the right of an accused to represent himself. It concluded that the right to choose self-representation is one of a bundle of rights designed to assure an accused receives a fair trial. However, the Court emphasized that the fundamental right is to a fair trial which includes the right to a defence, while the manner of representation is merely the means to achieve it. When the means no longer achieve the ends, the Court has a duty to step in.

'In the event that self-representation gives rise to the risk of unfairness to the accused, then steps must be taken, consistent with the provisions of Articles 20 and 21, to secure for an accused a fair trial; otherwise, the purpose of securing for the accused the right to a defence will be nullified. Fundamental to that is ensuring that he has the opportunity and facility to present his defence fully and effectively. However, that does not oblige the Trial Chamber to indulge the wish of an accused to conduct his own defence where his capacity to do so is so impaired that, were he to continue to do so, there would be a material risk that he would not receive a fair trial. The mere assertion on the part of the Accused of his right to defend himself does not ensure an effective defence in circumstances where he is seriously ill and regularly prevented for protracted periods from acting in his own defence.'

The Chamber found that ICTY rules 'allow for four possible arrangements for the presentation of the defence case. . . .' They are 1) conducting his own defence exclusively; 2) having defence conducted exclusively by counsel; 3) presenting his defence in conjunction with counsel; and 4) exclusively conducting his defence in court, with legal assistance from experienced lawyers outside the courtroom. Milosevic has been conducting his case under the fourth arrangement, the Court said, adding it should also be possible for 'the Trial Chamber to order either that counsel conduct the defence in its entirety or conduct the majority of the defence case, while permitting the accused also to participate by presenting some parts in person, such as the statement upon opening of the defence case.'

The Court continued: 'Above all other considerations, the arrangement adopted should be one that ensures not only that the proceedings are conducted fairly but also that a fair trial is concluded. It would be intolerable for any accused to have accusations as serious as those against this Accused left outstanding against him for an unreasonable time or, worse still, unresolved.'

Reviewing the case law from other international and national criminal tribunals, the Court concluded that the jurisprudence supports its reading of the ICTY statute that the right of self-representation is not absolute. In civil law jurisdictions, like Serbia, counsel is mandatory where the crime charged carries a potential prison sentence of more than 10 years. The Chamber found the reasons for this compelling: '[I]n cases where the personal liberty of an accused is at stake, the right to a fair trial, which includes the right to an adequate and effective defence, actually imposes a duty on the State to ensure that the accused is represented by professional counsel whose task is to ensure that the interests of the accused are fully protected throughout the proceedings.'

Even in common law jurisdictions which provide for the right of an accused to represent himself, the right is qualified and subordinate to the greater interests of justice, which includes the right to a fair trial. In the United States, where the right of self representation derives from the Constitution, the U.S. Supreme Court held the right is not absolute: 'The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.' (United States v. Faretta, 1975) In a more recent case, the U.S. high court held that an accused does not have a constitutional right to represent himself on appeal. (Martinez v. Court of Appeal of California, 2000) The Milosevic Trial Chamber also noted the trend in England and Wales, Scotland and Canada to prohibit accused sex offenders from cross examining certain witnesses or conducting their own defense at all.

The emerging jurisprudence of the international criminal tribunals was at least as persuasive to the Court. Cases before the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone and, indeed, the ICTY itself support the view that 'there may be circumstances where it is competent and appropriate for a Trial Chamber to insist that the defence is presented by counsel and not by the accused in person.' The Court concluded that it should be determined on a case by case basis.

Having concluded that jurisprudence permits the assignment of counsel over an accused's objections, the Trial Chamber turned to review the Accused's medical history since coming to the Tribunal and, particularly, since his trial began. The examining physicians, including a cardiologist, concluded on several occasions that the mental and physical stress of standing trial contributed to a recurring elevation in blood pressure and a deterioration of Milosevic's condition over time. His failure to follow his treatment regime was identified as a 'likely explanation for the resistant nature of his hypertension' in recent months. Based on the medical reports, the Court found, '[I]f the Accused was permitted to continue to represent himself, it was inevitable that his health would suffer, that his life could be at risk, and that he was unfit to continue to represent himself. The Chamber found that at the very least the trial would continue to be interrupted frequently to enable him to recover sufficiently to proceed.'

Finally, the Trial Chamber set forth the many accomodations it has made to enable the Accused to represent himself, including: substantial adjournments; the assignment of three legal associates to assist with out of court preparation; expanding the role of Amici Curiae 'to undertake substantial work in the character of defence counsel of which the Accused has clearly availed himself;' ordering substantial facilities and resources be made available to him, such as photocopying, fax and computer equipment, and providing privileged access to his associates. To ensure that the trial is fair and expeditious, the Court held, further steps are required at this time.

Given all the above, the Court concluded that the risks to Milosevic's health and life, as well as the prospect of continued serious disruptions in the trial if the status quo were continued, are so great as to be likely to undermine the integrity of the trial process. 'In the face of these circumstances, it would have been irresponsible to allow the Accused to continue to represent himself.'

To be sure it was understood, the Court emphasized: 'The impact of taking this course should be seen in its wider context. The Accused remains entitled to the presumption of innocence, and the Prosecution must prove the case against him beyond reasonable doubt. That has not changed. The Accused is entitled to present all defences open to him. That has not changed. The impact of the Order is restricted to the means by which his defence is presented and, most certainly, is not an adverse impact since it leaves open to the Accused a number of options, whereby he can have the professional assistance of counsel and can also actively participate along with counsel in the preparation and presentation of his case, albeit in a far less strenuous way than has been the case to date. Above all, it does not deprive him of the right to speak either by giving evidence, examining and re-examining witnesses as permitted by the Chamber, selecting and submitting documentary evidence, and making final submissions on the evidence. The Chamber considered it important to allow him to make the statement opening the defence case, which he did.'

The Court's final words were addressed to the Accused, who has refused to submit to the Court's authority and cooperate with appointed counsel. 'The Trial Chamber is satisfied that assigned counsel will make determined efforts to discuss the presentation of the Accused's defence with him. Should the Accused fail to cooperate with counsel, the trial will nonetheless proceed. If such failure on the part of the Accused results in material which is actually relevant to the Accused's case not being presented, then the Accused must bear responsibility for that and cannot plead injustice.'

The next step is for assigned Defence Counsel to submit a written request to the Appeals Chamber to overturn the Trial Chamber's decision to appoint counsel. Defence Counsel Steven Kay has indicated he will seek an expedited appeal, so the matter may be resolved before trial resumes on October 12.