Right to Defend Oneself Contested

The Hague tribunal’s recent decision to impose a defence lawyer on Serbian ultra-nationalist leader Vojislav Seselj against his wishes has raised many questions about the right of defendants to choose how they are represented in court.



In an August 21 ruling, the trial judges said that allowing Seselj to conduct his own defence could “substantially and persistently obstruct the proper and expeditious conduct of a fair trial”, and at the end of the month announced that his new permanent defence lawyer would be David Hooper from London.



Seselj did not take the news well. At a status conference on September 14, he said, “this man with a bird’s nest on his head has been fraudulently introduced as my defence counsel.



“In this theatrical production, you have denied me my right to represent myself. You have brought actors here to represent me, and you are acting in contravention of my human rights.”



The trial judges’ decision to impose counsel indicates that in applying the principle of ensuring that justice is done by means of a fair trial, they saw room for interpretation when it came to the right of the accused to defend his or her own case.



Seselj was indicted in February 2003 on charges relating to war crimes allegedly committed in Bosnia and Croatia between 1991 and 1993. He turned himself in to the tribunal shortly afterwards, and when he first appeared before Hague judges on February 26, 2003, he announced his intention to conduct his own defence.



The International Covenant on Civil and Political Rights, ICCPR, the principal human rights treaty which is knitted into the tribunal’s statute, states that every accused person has the right to represent him or herself in a court of law.



The key wording in the tribunal’s statute is that the accused has the right to “defend himself in person or through legal assistance of his own choosing…and to have legal assistance assigned to him in any case where the interests of justice so require”.



This right is qualified if the court decides that the accused cannot represent himself effectively, or that he risks damaging his health or greatly hampering the speed of the trial.



But there is also debate in legal circles about whether the right to self-representation can be restricted under other circumstances, as in the case of Seselj, where the argument is that the move is justified because the defendant has been rude, offensive and obstructionist in his dealings with the tribunal.



There is no doubt that Seselj is capable of conducting his own defence. However, the court believes his behaviour – ranging from participating in a Serbian election campaign while in detention, to a string of offensive missives to the court – is sufficiently obstructive to warrant his exclusion from the role.



MILOSEVIC PRECEDENT CENTRED ON HEALTH, NOT BEHAVIOUR



Most of those who come before the tribunal stand accused of perpetrating grave war crimes and crimes against humanity, so mounting their own defence would be a huge undertaking. Disputes over self-representation have therefore been a relatively rare problem, as most accused have preferred to leave their cases to lawyers qualified to deal with the technical complexities.



At the tribunal, the issue featured most prominently in the case of former Yugoslav president Slobodan Milosevic, who was on trial from 2001 until his death in custody in March this year.



From the very beginning, Milosevic made it clear he wanted to run his own case, and although he was legally proficient enough to do so, the judges felt his health was suffering as a result and that he could not withstand the rigours of trial work and courtroom confrontations.



In December 2004, the appeals chamber suggested that that he would only be fit to defend himself if the hearing schedule was reduced to one day a week, or one day a month, and that this implied that the trial would effectively grind to a halt. In view of the delays caused by Milosevic’s ill-health, appeals chamber judges therefore imposed Steven Kay QC and Gillian Higgins as Milosevic’s counsel and instructed them to take the lead in conducting his defence.



However, after Milosevic appealed, he was restored to the helm of his case, but the assigned lawyers were kept in place with the right to continue playing an active role in conducting the defence.



This was possible because even though Milosevic openly questioned the validity of the tribunal, he still played along with most of the rules. Anton Nikiforov, spokesman for the Tribunal prosecutor, acknowledged that Milosevic was preparing in a responsible manner and was not obstructing court processes. He followed procedure and accepted help from the registry, although he said he neither respected or recognised the court.



That is not the case with Seselj.



According to Nikiforov, the record to date means that “we are sure Seselj would wreck the process and make it impossible to conduct fair and dignified proceedings respectful to the court, court staff, prosecution and witnesses”.



DEFENCE RIGHT “NOT ABSOLUTE”



The Seselj dispute has raged ever since 2003, when the prosecution first filed a motion to appoint a defence counsel because of Seselj’s obstructionist behaviour.



Seselj wrote a submission appealing against this decision, saying it contravened his rights under the tribunal statute, the European Convention on Human Rights and Fundamental Freedoms, and the ICCPR. But the prosecution maintained that according to the court’s jurisprudence, the right to self defence is “not absolute”.



Following the court’s latest ruling, Tjarda van der Spoel, the standby counsel appointed to temporarily oversee Seselj’s defence, wrote to the court on August 25 requesting an appeal. Even though Seselj was refusing to speak to him, Van der Spoel pointed out to judges that the accused had made it abundantly clear that he wished to conduct his own defence.



In a statement to the court, Van der Spoel said that Seselj was adamant that his legal expertise and personal knowledge of events leave him “best placed to present his case”. Any infringement of the fundamental right to self representation may “significantly affect the fair and expeditious conduct of proceedings and the potential outcome of the trial”, added the lawyer.



Most significantly, Van der Spoel suggested that the decision affected the overall fairness of the trial and would thus offer grounds for an appeal, should Seselj be convicted.



While accepting this move to appeal, the judges underlined that their ruling was lawful. And the senior lawyer for the prosecution, Hildegard Uertz-Retzlaff, said “the decision is consistent with the tribunal’s jurisprudence and practice as well as with international and domestic case law”.



A QUESTION OF DEGREE?



The question of whether the presumptive right to self-representation is qualified or absolute therefore seems to be a matter of interpretation.



Justice Richard Goldstone, who has served as chief prosecutor at the former Yugoslav and Rwandan tribunals, told IWPR that the right is not an unlimited one and can be withdrawn if abused, but he stressed that an accused’s right to defend himself should only be curtailed when this is necessary “to ensure effective trials”.



He said justice cannot be defeated or the rights of victims compromised by allowing the accused to behave disruptively.



If the accused disrupts proceedings, he should be given “warnings and opportunities, and could be given closed-circuit television in his cell and he can either watch the trial or not”, said Goldstone.



Mark Ellis, the executive director of the International Bar Association, agreed that the right to defend oneself is not absolute. There are times when the court has the authority to “limit the defendant’s perceived right to self-representation”, he added.



However, William A. Schabas, director of the Irish Centre for Human Rights, told IWPR that he could not accept the argument that because exceptions to the rule are recognised, it becomes permissible to “restrict the right to self defence on other grounds such as medical problems of the accused, or if the accused is a political leader, or if the trial is complex”.



DEFINING BAD BEHAVIOUR



So how do judges go about deciding what amounts to "serious misbehaviour" that warrants restriction of the right to defend oneself?



In around 200 written submissions to the court, Seselj has used offensive language in reference to judges and court officials, including the various standby lawyers he has been allocated in the past. He has attacked these individuals’ professionalism, ethnicity, appearance and personality, and the court’s Registry has rejected 10 of the submissions solely because of their “obscene or otherwise offensive language”.



Seselj has misled the court about the treatment he has received in detention, claiming that he had been waiting for months for an operation and that this amounted to torture. A United Nations Detention Unit investigation proved the claim to have been untrue, but Seselj went on to allege that at least four detainees had died due to deliberately inadequate medical assistance, and that the same fate awaited him.



The court also dismissed as "frivolous and obstructionist behaviour" Seselj’s decision to reject a laptop computer supplied to him to help him prepare his case. He said he was afraid of receiving an electric shock from it.



Nonetheless Schabas argues that the court needs to tolerate a certain level of challenging behaviour from defendants. Milosevic, for example, engaged in deliberate political posturing during his trial.



SCORING POLITICAL POINTS



The complicating factor for trials at the tribunal and other war crimes courts is that they attract so much international attention.



If an accused person represents himself at a time when he retains a public profile, the publicity may be to his advantage – a result which Kay points out would be neither intended nor desired by the court.



However, Kay does not agree with overarching political restraints, and said that the accused should be able to campaign and participate in political parties, otherwise it is “a denial of free speech”.



Seselj breached the terms of his detention, for example by participating in press conferences about upcoming Serbian elections in 2003. But if he were found to be in contempt and excluded from court, might this not play favourably with his supporters back home?



Similarly, if the Iraqi Special Tribunal had not been able to curtail former president Saddam Hussein's right to represent himself, the series of trials he now faces could have descended into chaos.



Ellis said that when a defendant views the judicial process as a political opportunity and disrupts proceedings, the execution of justice is weakened.



In Justice Goldstone’s view, “One cannot exclude politics, but [one] also cannot turn the proceedings into a political battle.”



This argument was often used against Milosevic, but Schabas believes the former president was within his rights by offering a vigorous defence and raising political issues.



“This is the price you pay when you put the president of a country on trial. It is a highly political undertaking. Some people got angry about him making speeches, but this is his right and we have to live with that,” said Schabas.



OTHER OPTIONS



If the accused chooses to exercise his right to defend himself but remains uncooperative, the court has a number of options.



It could impose certain limitations such as preventing the accused from cross-examining a particular witness if it is felt his behaviour would be inappropriate.



It could ultimately send the defendant out of the courtroom, since the accused cannot be permitted to direct proceedings. Yet this might give prosecutors an unfair advantage.



Another option, used in the Milosevic trial, is to assign an "amicus curiae". Literally "friend of the court", this position is an advisory one, designed to fill the gap between allowing self-representation and imposing a defence lawyer. The accused is allowed to represent himself and maintain ownership of the case, but is bolstered by an advisor.



Steven Kay QC was assigned amicus curiae for Milosevic and served in the role for three years before being made assigned defence counsel. He told IWPR that the amicus curiae route was a non-confrontational way of trying to ensure a fair trial, and as such was a “revolutionary move in terms of international jurisprudence”.



He recalled how at Milosevic's request he appeal against his appointment as assigned defence counsel. “We appealed our own position, so that anyone looking back at the case would see it as fair and that we strove to represent the views of the client. If we hadn’t, who would have?” said Kay.



This process gained respect from external watchdogs, and Ellis acknowledged that even though it was a difficult process, he gives credit to the tribunal for “trying to create a mechanism that would balance the interests of the court and give the defendant the opportunity to direct his case”.



Milosevic was capable of running his own case but he needed help with litigation. “The fairest way was brining in an outside component,” said Kay.



A "FRIEND" FOR SESELJ?



To date, the judges have not proposed an amicus curiae as a possible solution in the Seselj case.



The method was relatively successful for Milosevic because he was cooperative up to a point. But Justice Goldstone questions whether the route is worth pursuing with an accused who refuses to play by any rules.



According to Ellis, there was “no likelihood that he was going to cooperate at all”, so the only option was to impose counsel.



However, there is no guarantee, either, that Seselj will cooperate with Hooper, his assigned counsel. When Hooper seeks instruction from him, he may remain obstructive and the same problem will arise.



During the September 14 status conference, he interrupted Presiding Judge Alphons Orie, saying, “I will never speak to Hooper or any other spy of yours who denies me my right to represent myself. I am a calm and balanced person, but until you restore my right to represent myself, I will not participate in proceedings.”



TRIAL IN ABSENTIA



If Seselj continues to misbehave, the court could charge him with contempt, exclude him, and conduct his trial in absentia.



This is generally not a preferred option at the tribunal, as its statute explicitly states that the accused has a right to be present at trial.



According to Nikiforov, the rules say that if the accused is behaving badly, “he will be removed from the courtroom and can participate through his defence counsel”.



Nikiforov said that the prosecution would be happy with such an outcome, and he argued that this would not be a trial in absentia in the classic sense, where the indicted person is tried without having been arrested and placed in custody.



In this case, the trial could move forward as long as the defendant was able to follow proceedings via closed-circuit television and get access to records.



“An accused should have the right to commit judicial suicide if he leaves his lawyers with no clear instruction, but ultimately he decides,” concluded Schabas.



At this week’s status conference, Seselj himself asked to leave the courtroom, saying, “Mr Orie, would you order the guards to escort me out?”



FUNDAMENTALLY UNFAIR?



One of the reasons Seselj's standby counsel gave for appealing against the assignation of permanent defence counsel was that he would be able to cite the decision in any appeal against a verdict.



Yet if the defendant is responsible for his own failure to participate in the trial, and has forced the court to impose counsel, then his grounds for appeal may falter.



It is for this reason that Schabas insists that the defendant's right to make decisions about his defence amounts to a cornerstone principle.



“If you don’t allow the defendant to exercise his right to defend himself, or instruct counsel and control their case, who will take that decision? Who then decides whether to plead guilty or not? If it is out of the hands of the defendant, and the lawyers take the decision, this is fundamentally unfair,” said Schabas.



At the status conference this week, Judge Orie announced that the trial would start at the beginning of November.



Katy Glassborow is an IWPR reporter in The Hague.