ICTY Issues Pathetic Excuses For Gaging Milosevic
Article In Defense of Slobodan Milosevic
ICTY Issues Pathetic Excuses For Gaging Milosevic
Here the stature of Milosevic shines brightly. Were he a mere "crude chauvenist" without a sense of ideology, excellant debate skills AND TRUTH ON HIS SIDE, these maggot scum and their little clique of criminals preciding over the criminal "Criminal Tribunal" of the detaineed Serbian Resistance, would love to have Milosevic defend himself, because they would prove themselves. Instead, they having been exposed to the ages as scandelous agents of imperialism, who have turned "international law" into a tool for lawless plunder and the facade that aggressors are liberators, that fascism-in-power has a "democratic" and "human rights" quality.
The idea of not allowing Milosevic to defend himself because of his health, and to theirfore imposing
council on him, that he rejects, and that are former "friends of the bench", is somethings of Orwellian peroortians.
Come on slime! What have to you to hide. One on one, we the People want to See Milosevic debate Clinton, M. Albright, Blair, Wesley Clark, etc. What have all these state sponsored NATO terrorists have to hide?
LONG LIVE OUTSTAND SERBIA FOREVER!
FREE SLOBODAN MILOSEVIC AND ALL RESISTANCE DETAINEES!
---John Paul Cupp
Milosevic Case: Trial Chamber Issues Written Reasons for Assignment of Defence Counsel
Date: Wed, 22 Sep 2004 16:53:17 +0200
Press Advisory . Avis pour information
(Exclusively for the use of the media. Not an official document
The Hague, 22 September 2004
TRIAL CHAMBER ISSUES WRITTEN REASONS FOR ASSIGNMENT OF DEFENCE COUNSEL
Today, 22 September 2004, Trial Chamber III, consisting of Judge Robinson, presiding, Judge Kwon and Judge Bonomy, issued its "Reasons For Decision On Assignment Of Defence Counsel."
The full text can be found on our website at: www.un.org/icty
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22 September 2004
REASONS FOR DECISION ON ASSIGNMENT OF DEFENCE COUNSEL
Office of the Prosecutor:
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Slobodan Milosevic
Court Assigned Counsel:
Mr. Steven Kay, QC
Ms. Gillian Higgins
Prof. Timothy McCormack
1. Oral Ruling on Assignment of Defence Counsel
Following the Accused's opening statement on 31 August 2004 and during the first session of the hearing of 1 September 2004, the parties and Amici Curiae were invited to make oral submissions on the recent medical reports received 1 and on the assignment of defence counsel.2 Having heard these submissions and considered filings submitted during the course of July and August 2004 pertaining to the same issues,3 the Trial Chamber gave an oral ruling on 2 September 2004 as follows:
This is the ruling on assignment of Defence counsel, and I should say that a fuller written decision will be issued shortly.
In its reasons for its decision on the Prosecution motion concerning assignment of Defence counsel of 4 April 2003, the Trial Chamber, while holding that the accused had a right to defend himself also held in paragraph 40 that the right to defend oneself in person is not absolute and that it would keep the position under review, also in paragraph 40. The health of the accused has been a major problem in the progress of the trial. In the Prosecution's case the trial was interrupted over a dozen times on account of the ill health of the accused, thereby losing some 66 trial days.
The Defence case that was scheduled to start on 8th June was postponed on five occasions, again on account of the ill health of the accused. The Trial Chamber requested Dr. Van Dijkman, who has been treating the accused for cardiological problems for some time, and Professor Tavernier from Belgium, who was identified by the registrar as a cardiologist with no prior involvement in the treatment of the accused, to examine the accused and consider all relevant information pertaining to his health in the context that he represents himself, and report to the Trial Chamber on the fitness of the accused to continue to represent himself and the likely impact on the trial schedule should he continue to do so. Both doctors reported that the accused suffers from severe essential hypertension and that his condition was such that a hypertensive emergency, a potentially life-threatening condition could develop. They also found that one explanation for his medical condition was his failure to adhere to the proposed therapeutic plan.
Blood tests carried out on the accused confirmed this conclusion. It is plain from the medical reports that the accused is not fit enough to defend himself and that should he continue to represent himself, there will be further delays in the progress of the trial.
The issue before the Chamber is whether the right of an accused set out in Article 21 of the Statute to defend himself in person is subject to qualification, and if it is, whether in the circumstances of this case that right should be qualified by assigning counsel to represent the accused.
The Chamber is satisfied on the basis of the Tribunal's Statute and the jurisprudence, as well as the law of many domestic jurisdictions that the right of an accused person to represent himself is not unfettered, and in the circumstances of this case, it is both competent to assign counsel to the accused and in the interests of justice to do so. We shall, therefore, do so.
The fundamental duty of the Trial Chamber is to ensure that the trial is fair and expeditious. The concern of the Chamber is that, based on the medical reports, there is a real danger that this trial might either last for an unreasonably long time or, worse yet, might not be concluded should the accused continue to represent himself without the assistance of counsel. On the other hand, the Chamber is satisfied that, if counsel is assigned to the accused, measures can be devised to ensure that the trial continues in a manner that is both fair and expeditious.
Having decided to assign counsel to the accused, it will be the duty of the Chamber to ensure that the role of assigned counsel is so fashioned that the trial process, while being expeditious, will protect the fundamental right of the accused to a fair trial.
That's the ruling, and as I said before, a fuller written decision will be issued shortly.
As the Trial Chamber indicated it would, it now sets out its reasons for the oral ruling on 2 September 2004.
2. Procedural History of the Issue of Self-Representation
On 3 July (Kosovo), 29 October (Croatia), and 11 December 2001 (Bosnia), the Accused made his initial appearances on each of the three indictments, at which he refused to enter pleas. The Trial Chamber entered pleas of "not guilty" on his behalf. On 3 July 2001, the Accused informed the Trial Chamber, both in writing and orally at his initial appearance for the Kosovo Indictment, that he did not want to be represented by a lawyer.4 At the first Status Conference on 30 August 2001, the Trial Chamber noted that the Accused was entitled to represent himself and, in order to ensure him a fair trial and to ensure that his rights were fully respected, decided to invite the Registrar to appoint Amici Curiae to assist the Trial Chamber in the proper determination of the case.5 The Trial Chamber rejected the Prosecution's suggestion that it should assign defence counsel to the Accused over his objections, stating that, in accordance with the Statute and the Rules of Procedure and Evidence of the International Tribunal, "the Accused has a right to counsel, but he also has a right not to have counsel".6 At this time, the health condition of the Accused was not at issue.
On 30 August 2001, the Trial Chamber issued its "Order Inviting Designation of Amicus Curiae" to the Registrar, setting out the role of the Amici, which included: making any submissions properly open to the Accused by way of preliminary or other pre-trial motion; making any submissions or objections to evidence properly open to the Accused during the trial proceedings and cross-examining witnesses as appropriate; drawing to the attention of the Trial Chamber any exculpatory or mitigating evidence; and acting in any other way which designated counsel considers appropriate in order to secure a fair trial. Three Amici Curiae were then duly appointed by the Registrar on 6 September 2001.7
At a hearing on 10 April 2002, the Accused identified two qualified lawyers, Mr. Zdenko Tomanovic and Mr. Dragoslav Ognjanovic, as his "legal associates", and on 16 April 2002 was granted privileged communications with them.8 The Accused made a written request regarding the appointment of Mr. Branko Rakic as a third legal associate, which the Trial Chamber duly granted on 23 October 2003.9
On 1 November 2002, the Trial Chamber expressed concern about the completion of the trial in the light of the state of the Accused's ill-health10 and the length and complexity of the case and, in order to ensure its expeditious conclusion, ordered submissions from the parties.11
After receiving both written and oral submissions from the parties,12 on 18 December 2002 the Trial Chamber rejected the Prosecution's motion that defence counsel should be imposed on the Accused, stating: "Defence Counsel will not be imposed upon the Accused against his wishes in the present circumstances. It is not normally appropriate in adversarial proceedings such as these. The Trial Chamber will keep the position under review".13
The Trial Chamber set out its reasons for its oral ruling on 18 December 2002 in its "Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel" on 4 April 2003, in which it held that, while the Accused had a right to defend himself in person, that right is not absolute and that it would keep the position under review.14 The Trial Chamber stated that it "is satisfied that the Accused, who has clearly and unequivocally informed the Trial Chamber that he does not want to be represented by defence counsel, is competent to defend himself in person".15 The Trial Chamber concluded that the Accused had a right to defend himself in person "in the present circumstances".16 Given the unpredictability of an issue such as health, the Trial Chamber allowed for the position to be reviewed in light of a change in circumstances.
In August 2002, following a further examination of the Accused, Dr. van Dijkman recommended that a period of four consecutive rest days be inserted every two weeks of trial.17 This regime was followed until the end of September 2003. On 23 September 2003, the Prosecution filed a motion requesting a hearing to discuss the implications of the Accused's recurring ill- health,18 following repeated delays in the trial process as a result thereof and with seven hearing days having had been lost in the month of September 2003 alone. The Trial Chamber ordered both the Prosecution and the Amici Curiae to make written legal submissions in relation to the proposals made by the Prosecution in its motion of 23 September 2003, and thereafter to make submissions at an oral hearing on 30 September 2003.19
Having heard the parties' submissions on 30 September 2003, the Trial Chamber made an oral ruling, in accordance with the recommendations contained in the medical report of Dr. P.R.M. van Dijkman, the cardiologist supervising his care, concerning the Accused's health,20 that the Chamber would sit three days each week, giving the Accused four days of consecutive rest.21 The Accused was not present at the hearing due to illness.
Following the sustained ill-health of the Accused during February 2004 at the end of the Prosecution case, and recurring heath problems throughout the time allocated for preparation of the Accused's defence necessitating delays to the commencement of the defence case, the Trial Chamber heard oral submissions from the parties on 5 July 2004. By that stage, the trial had been interrupted during the course of the Prosecution's case over a dozen times on account of the ill-health of the Accused, thereby losing some 66 trial days.22 The defence case, scheduled to start on 8 June 2004, was postponed on five occasions, again on account of the ill-health of the Accused.
At the hearing on 5 July 2004, following discussion of recent health reports, the Amici Curiae raised two issues: (1) the Accused's fitness to present his defence at this time and (2) his fitness to stand trial at all.23 While there was no evidence before the Trial Chamber that the Accused was not fit to stand trial at all, the Trial Chamber considered that there was evidence indicating that the health of the Accused was such that he might not be fit to continue to represent himself and that his continuing to represent himself could adversely affect the fair and expeditious conduct of the trial. Such was the concern of the Trial Chamber that it decided to "carry out a radical review of the trial process and the continuation of the trial in the light of the health problems of the Accused, which are clearly chronic and recurrent based on the most recent report from the doctor".24
The Trial Chamber subsequently made an order on 6 July 2004, directing the Registrar to identify a cardiologist, with no prior involvement in the treatment of the Accused, and to instruct that cardiologist to examine the Accused and consider all relevant information pertaining to his health in the context that he represents himself and report quam primum to the Trial Chamber on the fitness of the Accused to continue to represent himself and the likely impact on the trial schedule should he continue to do so.25 The Registrar identified Professor Dr. R. Tavernier, a cardiologist from Belgium. On 15 July 2004, the Trial Chamber issued an identical request to Dr. van Dijkman, who had been treating the Accused for cardiological problems for some time.26
In orders of 19 July and 6 August 2004, the Trial Chamber sought submissions about the role that counsel could take in ensuring the fair presentation of the defence case, in particular in the absence of instructions to, or cooperation with, counsel by the Accused.27
By order of 21 July 2004, the Trial Chamber invited written submissions with a view to giving further consideration to ways in which the trial might be concluded in a fair and expeditious manner, including the possibility of severing one or more of the Indictments.28
In order to clarify matters arising in the medical reports received from Professor Tavernier on 29 July 200429 and Dr. van Dijkman on 20 August 2004,30 the Trial Chamber ordered the Registrar to provide each doctor with a copy of the other's report and to obtain supplementary reports from both.31 These further reports were received from Professor Tavernier on 27 August 2004 and Dr. van Dijkman on 30 August 2004.32
Having considered submissions on severance indicating that the Prosecution, the Amici Curiae, and the Accused all opposed that course,33 the Trial Chamber decided not to give further consideration to that matter for the time being.34
Written submissions on the issue of assigning counsel to the Accused were submitted by the Prosecution on 26 July and 6 and 19 August 2004 and by the Amici Curiae on 13 August 2004.35 The Accused made no written submission. On 1 September 2004 the Prosecution, the Amici Curiae , and the Accused each addressed the Trial Chamber.
(a) The Prosecution
The Prosecution's position has remained consistent throughout these proceedings. From the first Status Conference on 30 August 2001, the Prosecution has suggested that, in addition to the Amicus Curiae, the Trial Chamber should assign defence counsel for the Accused.36 This submission was expounded in full for the first time in writing in a filing of 8 November 2002 in which the Prosecution proposed that the Trial Chamber should appoint defence counsel for the Accused in light of the disruption to the trial process due to the recurring ill-health of the Accused, and suggested the Amici Curiae as the obvious choice.37 The Prosecution submitted that the wording of Article 21(4)(d) of the Statute of the International Tribunal ("Statute") allows for the imposition of counsel on an accused whenever that is in the interests of justice, and drew support from Prosecutor v. Barayagwiza ,38 citing the concurring and separate opinion of Judge Gunawardana.39 The Prosecution further submitted that Article 20 of the Statute necessitates the imposition of defence counsel on the Accused in this case since Article 20 requires the Trial Chamber to ensure that a trial is fair and expeditious.40 The Prosecution noted that the Accused had "elected to conduct his own defence, at all times refusing the assistance of defence counsel", and submitted:
By doing so he has inevitably increased the strain on his own health. It cannot be right in principle for the scope of a criminal trial to be dictated by the fact that the accused elects to represent himself. 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.41
In this regard the Prosecution stressed that the public interest demands a comprehensive prosecution of the Indictments, and that neither the international community nor the Prosecution could accept the curtailment of the case in a situation where the Accused, by declining to avail himself of the benefit of counsel, has exacerbated his health problems.42
Regarding the practicalities of assignment of counsel, the Prosecution has maintained its suggestion throughout that defence counsel should be appointed while allowing the Accused to continue to participate in the trial by asking questions and making submissions in a regulated manner.43 The Prosecution further developed this position, stating that imposed counsel should have "full discretion as to how to act. The rights and interests of the Accused [could] then be accommodated - on a case by case basis - with the integrity and timetable of the trial, protected at all times by judicial control and imposed defence counsel".44 In addition, the Prosecution suggested that all options should remain open to the Accused thereafter, including appointing counsel of his own choosing to act for him and take over from assigned counsel who would remain in the wings, ever ready to resume the conduct of the defence if required.45
Finally, the Prosecution raised the possibility of a live television link being established between the United Nations Detention Unit ("UNDU") and the Trial Chamber in order that the Accused could, either generally or from time to time, remain at UNDU while imposed counsel questioned the witnesses "in his effective presence".46
Following the receipt of the medical reports which had been ordered on 6, 12, and 15 July 2004,47 the Prosecution submitted an addendum asking the Trial Chamber to take into consideration the accounts of the Accused's non-compliance with medical advice, suggesting a wilful manipulation of the trial timetable, and to impose counsel immediately.48
(b) The Amici Curiae
The Amici Curiae have made several observations during the course of proceedings opposing the imposition of counsel. When the issue of the Accused's health was first addressed in November 2002, the Amici Curiae submitted that, if the Accused were unable to participate in the trial without causing serious damage to his health, the trial should cease on medical grounds; and that, if the conditions in which the Accused were being held were contributing to the deterioration of his health, provisional release should be considered.49
On 18 November 2002, the Amici Curiae filed "Observations by the Amici Curiae on the Imposition of Defence Counsel on the Accused". In their submissions, the Amici Curiae relied on Article 21(4) of the Statute of the International Tribunal, Article 6(3)(c) of the European Convention on Human Rights, and Article 14(3)(d) of the International Covenant on Civil and Political Rights, and submitted that the minimum guarantees of the Statute of the International Tribunal, in addition to the International and European conventional law, explicitly protect the Accused's right to defend himself in person, and stated: "Any imposition of counsel upon the Accused against his wishes would constitute a breach of his guaranteed rights".50 That remained the position in their written submissions of 13 August 2004. The Amici Curiae requested the Trial Chamber not to assign defence counsel to the Accused stating : "In the opinion of the Amici Curiae, the interests of justice do not require the assignment of counsel, which would deprive the Accused of his right to conduct his own defence".51
The Amici Curiae submitted that the issue arose entirely as a result of the health of the Accused, and not by reason of any "obstructionist" behaviour by the Accused as alleged by the Prosecution in their written submissions of 26 July 2004 and orally on 1 September 2004.52 The Amici Curiae stated that they had always supported the right of the Accused to represent himself, but acknowledged that the recent medical reports had changed the information before the Trial Chamber.53 They submitted that, if the Trial Chamber found that the Accused was not fit to represent himself fully, he could still participate in proceedings but using the services of his legal associates or another counsel appointed by him where necessary.54 The Amici Curiae proposed that the Accused receive "assistance" in the presentation of his defence, rather than have his decision-making powers completely removed.55
(c) The Accused
The Accused has been categorical in his rejection of legal representation since his initial appearance on 3 July 2001 and has maintained that assignment or imposition of counsel would be taking away his right to defend himself. The Accused has rejected any suggestion that his legal associates might sit in court to assist him.56 Faced with the recent medical findings of being unfit to represent himself, the Accused rejected the findings, on the basis that he considered the evidence of the cardiologists, particularly that of Professor Tavernier, to be a manipulation aimed at depriving him of his right to speak.57
The Accused stated that the imposition of counsel was "out of the question", and that he would never agree to it. In addition he stated that video-links and other suggestions were "out of the question". He expressed his intention to be present at court, questioning his witnesses, and that any other procedure would put him in an "even more unequal position".58 He said that, during the Prosecution case, the question of his capabilities had not been raised in terms of exercising his right to defend himself. However, he stated, the question had been raised all of a sudden when the time for the presentation of the defence case had come. He asserted further that one's right to self-defence should not be taken away on account of his ill-health.59 The Accused stated: "The right to defend myself is a question of principle. I do not accept any decrease of that right or any renouncing of that right all together. So I insist that you make it possible for me to question my own witnesses and I am categorical on that point".60 The Accused has repeatedly made it plain that he had no intention of assigning counsel to act on his behalf.61
4. Competency of Assigning Counsel
It is a universally recognised fundamental principle that no person accused of a crime should be convicted without trial. It is equally fundamental that the trial should be fair. This is as true of the common law adversarial system as it is of the civil law inquisitorial system. The principle that any accused is entitled to a fair trial is also reflected in all the major human rights treaties, including the one which, by reason of its global, non-regional coverage and the vast number (152) of ratifying States, ought to have the greatest influence on the work of the Tribunal - the International Covenant on Civil and Political Rights ("ICCPR").62 Within the ambit of fairness fall a number of rights, all intended to achieve for the accused a fair trial. For the work of this Tribunal, they are enshrined in Article 21(4) of its Statute. The Trial Chamber reads Article 21(4) of the Statute as setting out a bundle of rights, which are embraced within the principle that the accused must have a fair trial, which is itself set out in Article 21 (2) of the Statute. The concept of fairness not only includes these specific rights but also has a much wider ambit, requiring that in all aspects the conduct of the trial must be fair to the accused. Hence, the specific rights are described as "minimum guarantees ". Fairness is thus the overarching requirement of criminal proceedings.
While Article 21 of the Statute sets out rights of the Accused, Article 20 imposes statutory obligations on Trial Chambers to ensure the fairness and expeditiousness of the trial process as a whole, according full respect to the rights of the Accused. The relevant provisions are these:
Commencement and conduct of trial proceedings
1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
* * *
Rights of the accused
* * *
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.
* * *
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
* * *
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him....
An analysis of the issue of the right of an accused to represent himself calls for an interpretation of Articles 20 and 21 of the Statute, in particular, Article 21(4)(d). From the earliest days of the work of the International Tribunal, it was decided that the Statute is to be interpreted as a treaty.63 Consequently, Article 31(1) of the Vienna Convention on the Law of Treaties is applicable : a treaty is to be interpreted "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose".64 The four elements of Article 31(1) - good faith, textuality, contextuality, and object and purpose - are to be applied together, not individually. The main issue, therefore, is the ordinary meaning of the provisions of Article 21(4)(d) in their context and in light of the object and purpose of the Article and the Statute as a whole.
The minimum guarantees set out in Article 21(4) of the Statute are elements of the overarching requirement of a fair trial. It is in that context that the Accused's right to defend himself in person, or through legal assistance of his own choosing, as set out in Article 21(4)(d), must be read. Whether by way of self-representation or legal assistance, the purpose of the provision is to secure for an accused the right to a defence, which is a prerequisite for a fair trial. Defence "in person " or "through legal assistance of his own choosing" are simply means whereby the minimum guaranteed right to "defend himself", i.e., to a defence, may be exercised. 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.
If at any stage of a trial there is a real prospect that it will be disrupted and the integrity of the trial undermined with the risk that it will not be conducted fairly, then the Trial Chamber has a duty to put in place a regime which will avoid that. Should self-representation have that impact, we conclude that it is open to the Trial Chamber to assign counsel to conduct the defence case, if the Accused will not appoint his own counsel. Disruption of a trial, whatever the circumstances, may give rise to the risk of a miscarriage of justice because the whole proceedings have not been conducted and concluded fairly. Wherever such a risk arises, it is necessary to take steps to avoid it. It is widely recognised in domestic jurisdictions that, where an accused who represents himself disrupts his trial by misbehaviour, he may be removed from the court and counsel appointed to conduct his defence.65 That step is necessary to secure the integrity of the proceedings with a view to ensuring that the trial as a whole is fair. 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. These are simply examples of circumstances in which the right to represent oneself must yield to the overarching right to a fair trial. There are other cases in which the enjoyment of a right under Article 21(4) of the Statute must yield to the overarching right to a fair trial: for example, where the exercise of the right to self-representation becomes an obstacle to the achievement of a trial without undue delay, which is a specific right or minimum guarantee designed, inter alia, to maintain the integrity and fairness of the process. Should a trial not be conducted expeditiously, i.e., without undue delay, the risk of unfairness will arise requiring the Trial Chamber to consider how that risk may be avoided.
The right to represent oneself must therefore yield when it is necessary to ensure that the trial is fair. The primary duty of the Trial Chamber, as reflected in Article 20 of the Statute, must always be to take such steps as are necessary and available to ensure that the trial of the accused is completed fairly and expeditiously. Thus the ordinary meaning of Article 21(4)(d) of the Statute, when read in light of the object and purpose of securing for an accused his right to a defence and to a fair trial, is that an accused has a right to represent himself, but that right may be lost if the effect of its exercise is to obstruct the achievement of that object and purpose. The Trial Chamber is, therefore, entirely satisfied that, on the proper interpretation of Articles 20 and 21, it is competent, in appropriate circumstances, to insist upon an accused being represented by counsel in spite of his wish to represent himself. If the Accused refuses to appoint his own counsel, then it is open to the Trial Chamber to assign counsel to conduct the defence case.
It must therefore also be competent to insist upon the greater involvement of legal assistance where the accused has already engaged the assistance of lawyers, albeit they work "behind the scenes" and not in the courtroom. In reality the Rules of Procedure and Evidence ("Rules") and the practice followed by the International Tribunal allow for four possible arrangements for the presentation of the defence case, rather than simply a stark choice between self-representation or representation by counsel. The Rules and the practice followed permit an accused to:
(1) Exclusively conduct his own defence, or
(2) Leave the conduct of the defence exclusively to counsel, or
(3) Present his defence in conjunction with counsel, according to a division of responsibility that they agree upon, or
(4) Conduct his own defence exclusively in person when in court, while having the assistance, outside the courtroom, of experienced lawyers who do not appear before the Trial Chamber.
The last of these was the arrangement in the present case prior to the assignment of counsel.
It must similarly be open to 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. Even in the situation where assigned counsel are designated as counsel for the accused, the Trial Chamber might allow the accused to continue to participate actively in the presentation of his case by examining and re-examining witnesses on particular issues on which the accused satisfies the Chamber it is appropriate for him to ask questions additional to those asked by assigned counsel. What arrangement should be put in place is for the Trial Chamber to determine, having regard to all the surrounding circumstances, including the circumstances under which the trial is taking place and the personal circumstances of the accused. 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.
While extensive research has not led to the identification of any case in any jurisdiction where counsel has been assigned to an accused person because he was unfit to conduct his case as the result of impaired physical health, we have equally not identified any international or domestic authority which is inconsistent with our interpretation of Articles 20 and 21 of the Statute. It may be that the matter only arises now for determination because of the exceptional circumstances of the present trial.
The jurisprudence of this Tribunal, the International Tribunal for Rwanda (" ICTR"), and the Special Court for Sierra Leone ("SCSL") recognises 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. Circumstances in which such a course may be appropriate have to be determined on a case-by-case basis, having regard to the particular circumstances of the case as a whole, including such factors as the ability of the accused to conduct his own defence, as well as his attitude and actions.
In Prosecutor v. Norman, et al. before the SCSL, the Trial Chamber denied a request of the accused to defend himself, holding that the right to self-representation enshrined in its Statute "is not absolute but rather, a qualified right".66 The Trial Chamber concluded that, in the circumstances of that case, it was not proper to allow the accused to exercise his right to self-representation without qualifications.67
In Prosecutor v. Barayagwiza before the ICTR,68 assigned defence counsel asked to withdraw from the case on the basis that the accused had instructed counsel not to represent him at the trial and refused to attend the trial. Finding the attitude of the accused to be obstructing the course of justice, the Trial Chamber concluded that withdrawal of counsel was not warranted. The Chamber further noted that counsel in that case had been assigned, and not appointed, which "does not only entail obligations towards the client, but also implies that he represents the interest of the Tribunal to ensure that the Accused receives a fair trial".69 Judge Gunawardana envisaged circumstances in which it may be in the interests of justice to appoint counsel.70
In Prosecutor v. Šešelj, the Trial Chamber recognised that the wording of Article 21 of the Statute "leave[s] open the possibility of assigning counsel to an accused on a case by case basis in the interests of justice".71 Although the accused in that case made it clear that he intended to represent himself, the Trial Chamber considered the right to self-representation as articulated in the Statute as a starting point, but noted that according to international and national jurisprudence "this right is not absolute",72 and decided that "standby counsel" should be appointed with various responsibilities, including the possibility of taking over the conduct of the defence case against the will of the accused.73
This case law from the three international tribunals clearly suggests that the right of an accused to act on his own behalf embodied in the Statute of this Tribunal is not unqualified.
Generally, a provision similar to Article 21(4)(d) of the Statute is found in the constitutive instruments of international criminal tribunals, as well as international and regional conventions on human rights.74 While international and regional human rights conventions plainly articulate a right to defend oneself in person, many States parties to those conventions have systems in which self-representation, as recognised in those instruments, is not unqualified ; thus several States parties originating from the civil law tradition provide for mandatory defence counsel in domestic criminal procedures. And the fact that the law of some States precludes a defendant in a criminal case from representing himself, requiring that a lawyer assist him with his defence, is not incompatible with the ECHR. Thus, in the case of Croissant v. Germany,75 the European Court of Human Rights held that there had been no violation of Article 6(3)(c) of the Convention, which article contains the minimum right of an accused "to defend himself in person or through legal assistance of his own choosing", where the accused had appointed two counsel of his own choosing, but the Regional Court insisted upon the appointment of a third in spite of the accused's strong objection to that appointment. The Court said that "it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certainly have regard to the defendant's wishes.... However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice".76 The Court specifically noted that "avoiding interruptions or adjournments corresponds to an interest of justice which is relevant in the present case and may well justify an appointment against the accused's wishes".77
Conversely, the United Nations Human Rights Committee found in Michael & Brian Hill v. Spain that the accused's right to defend himself had not been respected, contrary to Article 14 paragraph 3(d) of the ICCPR.78 In that case the Spanish courts had denied the accused the right to defend himself, over his insistence that he wanted to do so. However, as this Trial Chamber observed in its Decision of 4 April 2003, the Committee gave no reason for its determination.79 The Committee were not faced with circumstances which can be compared to those now being addressed.
Common law jurisdictions, in which proceedings are adversarial, typically recognise an accused's right to represent himself at trial. As noted in the Trial Chamber's Decision of 4 April 2003, the classical statement of the right to self-representation was set out by the United States Supreme Court in Faretta v. California.80 In recognising the constitutional right of an accused to represent himself at trial, the Court held that forcing a lawyer upon an accused who is literate, competent, and understanding, and who voluntarily exercises his informed free will to represent himself by waiving his right to assistance of counsel, would be a breach of his constitutional right to conduct his own defence.81 However, there are qualifications to this general rule. In Faretta itself, the Court recognised that the right to self-representation by an accused was not without limits: "the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct",82 and "a State may - even over objection by the accused - appoint 'standby counsel' to aid the accused if and when the accused requests help, and to be able to represent the accused in the event that termination of the defendant's self-representation is necessary".83 Furthermore, the Court noted in Faretta that "StChe 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".84 Moreover, in Martinez v. Court of Appeal of California, the United States Supreme Court confined its holding in Faretta to a defendant's self-representation at trial and held that a defendant did not have a constitutional right to represent himself on appeal.85 In so holding, the Court reasoned that, "SaCs the Faretta opinion recognized, the right to self-representation is not absolute" and that "[e]ven at the trial level, therefore, the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer".86
In England and Wales, the Youth Justice and Criminal Evidence Act provides that an accused charged with a sexual offence may not cross-examine in person certain protected witnesses.87 With respect to other witnesses, the court may in the interests of justice prevent such an accused from cross-examining88 and must invite the accused to arrange for counsel to conduct the cross-examination.89 Where such arrangements have not been made, the court must consider whether it is in the interests of justice for the witness to be cross-examined by court-appointed counsel, who is not responsible to the accused.90
In Scotland, the Criminal Procedure Act, as amended by the Sexual Offences Act of 2002, provides that an accused charged with a sexual offence is prohibited from conducting his defence in person at trial.91 Moreover, in the event that the accused has not engaged legal representation for the purposes of his defence at trial, the court must, at its own hand, appoint a lawyer92 who is not susceptible to dismissal by the accused or obliged to comply with any instruction by the accused to dismiss him.93 Once the lawyer has been appointed, it is his duty to ascertain and act upon the instructions of the accused and, where the accused gives no instructions or inadequate or perverse instructions, to act in the best interests of the accused.94
In Canada, the Criminal Code provides that an accused charged with a sexual offence shall not personally cross-examine a witness under 18 years of age, unless the court decides that the proper administration of justice so requires. Where such an accused is prevented from cross-examining the witness, the court shall appoint counsel for the purpose of conducting the cross-examination.95 Australia96 and New Zealand97 have similar provisions in their criminal codes.
While common law jurisdictions recognise a right to self-representation, in civil law systems representation by counsel is often mandatory in serious criminal cases. This is a feature of criminal procedure in countries such as France,98 Germany,99 Belgium,100 Austria,101 Switzerland,102 and the Republic of Korea,103 among others. The Code of Criminal Procedure of the Federal Republic of Yugoslavia (2001), which remains valid in Serbia, provides that imposition of defence counsel is mandatory in proceedings relating to offences which carry in excess of ten years imprisonment.104 In such cases, where the accused fails to retain counsel, the presiding judge appoints counsel and notifies the defendant of the appointment.105 The rationale behind the mandatory assignment of counsel in these jurisdictions appears to be that, in 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.
In its "Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel", issued 4 April 2003, the Trial Chamber held that a plain reading of Article 21(4)(d) of the Statute, "indicates that there is a right to defend oneself in person", and that the nature of the proceedings at the International Tribunal, which are essentially adversarial, supported this interpretation.106 However, the Trial Chamber also expressed the view that it was satisfied that the "right to defend oneself in person is not absolute", and that there may be circumstances where it is in the interests of justice to appoint counsel.107 The Chamber gave as an example of such circumstances the situation where an accused has to be removed from the courtroom pursuant to Rule 80(B) of the Rules on account of his disruptive behaviour. The Chamber went on to state its intention to keep the position under review.108 The key reasoning in the Decision of 4 April 2003 was that the Trial Chamber found that the Accused had a right to defend himself in person "in the present circumstances ".109 The Chamber was influenced by the essentially adversarial nature of these proceedings not to assign counsel to the Accused against his wishes at that stage.110 However, the competence of assigning counsel in appropriate circumstances was recognised.111 Since then the Chamber has kept the conduct of the trial, in the light of the health problems of the Accused, under constant review and has regularly ordered and considered reports on the state of his health and the treatment recommended, leading ultimately to the decision to obtain reports which directly addressed the question of the fitness of the Accused to conduct his own case.112 The Chamber is now considering the matter in circumstances quite different from those which pertained at the end of 2002 when the debate leading to the "Reasons" issued on 4 April 2003 took place.
For all these reasons the Trial Chamber is satisfied that the overarching right to a fair trial, which includes a right to a defence, may, where appropriate, lead to the assignment of counsel for the Accused to conduct his defence. A proper interpretation of Articles 20 and 21 of the Statute yields that conclusion. That interpretation is consistent with such international authority as there is. We have identified no authority from domestic jurisdictions which indicates any reason in principle why counsel should not be assigned. We have identified many examples, principally from civil law jurisdictions but increasingly also in common law jurisdictions, of circumstances where assignment of counsel is authorised and occurs in practice. Crucial to the determination whether the trial was fair will be the fact that, whatever regime is put in place - self-representation combined with legal assistance, amici curiae, or mandatory assigned counsel - the Accused was given a reasonable opportunity to answer the charges against him and to lead evidence in support of that answer.
5. Health of the Accused
(a) Overview of Health Condition of the Accused
The Accused, who is now 63, was transferred into the custody of the International Tribunal on 29 June 2001. He has suffered for several years from chronic cardiovascular problems, which may be described, in general terms, as severe essential hypertension and hypertrophic heart disease.
Soon after the commencement of the trial, medical reports carried out at the request of the Trial Chamber noted that the Accused had a severely increased blood pressure and severe cardiovascular risks which demanded careful monitoring by a cardiologist coupled with a reduction of his work load.113 Subsequently, whenever his blood pressure became elevated, the Accused was required to rest and the trial had to be adjourned to await his recovery. In August 2002, following a further examination of the Accused, Dr. van Dijkman concluded that, if regular breaks were not inserted in the trial schedule to give the Accused additional rest days, "it [was] to be expected that the blood pressure will again rise to unacceptably high level".114 Dr. van Dijkman recommended that a period of four consecutive rest days be inserted every two weeks of trial.115 This regime was followed until the end of September 2003, when Dr. van Dijkman recommended a regime of four days rest per week, as opposed to the regime of four days rest per fortnight.116 In accordance with the medical recommendation, the Trial Chamber decided to sit three days each week, to allow the Accused sufficient time to rest.117
In February 2004, despite the mandatory periods of rest inserted in the trial schedule and the antihypertensive medication prescribed, the proceedings in this case had to be adjourned on two occasions on findings by doctors at UNDU, confirmed by Dr. van Dijkman, that the Accused was unfit to attend court, principally on account of high blood pressure.118
Mental stress, exhaustion, and fatigue associated with standing trial were identified in the various medical reports submitted to the Trial Chamber as factors specifically related to the elevated blood pressure of the Accused, in combination with a pre-existing tendency to hypertension, and other additional risk factors, including his lifestyle.119 Over time, the health condition of the Accused seemed to decline rather than improve; medical experts also advised longer periods of rest for the Accused to recover from acute rises in blood pressure.
The Prosecution commenced the presentation of its case with an opening statement on 12 February 2002, closing its case by a written filing on 25 February 2004. In the course of the presentation of the Prosecution case, the trial was interrupted on the following thirteen occasions120 on account of the illness of the Accused: 18 to 28 March 2002 (9 days); 17 to 27 June 2002 (9 days); 18 to 19 July 2002 (2 days); 1 to 6 November 2002 (4 days); 12 to 15 November 2002 (4 days); 13 to 21 January 2003 (7 days); 18 to 28 March 2003 (7 days); 27 to 28 May 2003 (2 days); 28 July to 1 August 2003 (5 day); 4 September 2003 (1 day); 19 September to 3 October 2003 (9 days); 3 to 5 February 2004 (3 days ); 18 to 25 February 2004 (4 days). As a result, 66 trial days were lost.
In April 2004, after the close of the Prosecution case, Dr. van Dijkman recommended that, due to persistent high blood pressure, the Accused "will for the moment have to cease his working activities".121 This medical advice prompted the Trial Chamber to order the Registrar to obtain a detailed medical report on the health of the Accused and an estimate of how long it was anticipated that the Accused needed to cease working due to persistent high blood pressure.122 On 11 May 2004, Dr. van Dijkman reported that, in recent months and in contrast to what had been observed previously, "despite the rest and current medication, [the Accused's] blood pressure remains unacceptably high".123 According to the medical report, "mental stress, whatever the cause, is the main reason that the blood pressure now remains high, assuming that the medication is actually taken".124
On 21 May 2004, following an additional examination, Dr. van Dijkman noted that the Accused continued to experience severe fatigue and symptoms of mental exhaustion in combination with acute fluctuation in blood pressure.125 Dr. van Dijkman indicated that, assuming that the prescribed medication was taken correctly, the situation was "probably the effect of the patient experiencing constant mental stress".126 He expressed doubts, however, whether stress associated with pressure from the regime in UNDU and the trial, as expressed by the Accused, was the only factor causing rise in the blood pressure; he observed that, in the past years, "a favourable balance between the medication and periods of rest during the trial, with an acceptable blood pressure " had been achieved.127 Again, medication, rest, and monitoring of his condition over the next several days were prescribed.
The defence case scheduled to start on 8 June 2004 was postponed on five occasions on account of the ill-health of the Accused.128 Between the period from 26 February 2004 to 17 June 2004, the number of days that doctors advised the Accused to rest totalled fifty-one weekdays.129 In a report dated 2 July 2004, Dr. van Dijkman observed that serious rises in the Accused's blood pressure continued to be measured; according to the cardiologist, it was "necessary to navigate constantly between sufficient rest, optimum medication and the stress of the trial".130 Critically, Dr. van Dijkman noted that, although the trial could start again as soon as the blood pressure reached values which are normal for the Accused, he expected the blood pressure to rise again after a short period of time.131
(b) Recent Medical Reports
In their reports of 29 July and 20, 27, and 30 August 2004, Professor Tavernier and Dr. van Dijkman reported on three issues: (1) the present health of the Accused, (2) the fitness of the Accused to represent himself, and (3) the likely impact on the trial schedule should he continue to represent himself.132 On each of these issues, they reached the same conclusion: (1) the Accused has severe essential hypertension, (2) in the present situation, the Accused is not fit enough to defend himself, and (3) should the Accused continue to represent himself, the progress of the trial would be delayed significantly.133 Both doctors were at one in concluding that a hypertensive emergency, a potentially life-threatening condition could develop.134 They could not have been clearer on each of these points.
They also found that the most likely explanation for the resistant nature of his hypertension was his failure to adhere to his prescribed treatment regime, as confirmed by blood tests carried out on the Accused.135 In order to get more insight into the therapy adherence, blood samples were taken on a few occasions at the request of the treating cardiologist; the samples were then extensively examined by Dr. D.J. Touw, Chief of the Clinical Pharmaceutical and Toxicology Laboratory of the Pharmacy of the Hague Hospitals.136 Dr. Touw reported that the serum concentrations of "Metoprolol", a prescribed medication, from the Accused's samples were clearly lower than should be expected with a daily intake of 200 mg Metoprolol as prescribed. Of the two possible causes of these findings, reduced therapy adherence or a rapid metabolism, Dr. Touw found it unlikely that the latter was the explanation.137 In addition, Dr. Touw found the presence of a drug used in the case of anxiety that is not contained on the Accused's medication list. When Dr. van Dijkman raised the issue with the Accused, he denied taking the medication.138 In his latest report, he also observed that "we were very surprised by the recent discovery of unknown medication in [the Accused's] possession, which was not supplied by the staff of the UN Detention Unit".139
At the very end of the hearing on 1 September 2004, the Accused made an application to have experts from Russia, Serbia, and Greece evaluate his health because he considered the evidence of the cardiologists, particularly that of Professor Tavernier, to be manipulation aimed at depriving him of his right to speak.140 Having considered the matter, the Trial Chamber decided by majority, Judge Robinson dissenting, not to allow the Accused's application for further medical evidence. In the opinion of the majority, the sole reason advanced for concluding that manipulation was involved - the fact that Professor Tavernier is from Belgium, which is the seat of NATO - did not provide a basis for considering that it would be contrary to the interests of justice to make a decision on the matter of assigning counsel on the basis of the material before it, which was contained in reports that the Trial Chamber itself had commissioned.141 In the opinion of Judge Robinson the lateness of the application, a procedural deficiency, should not prevent the Accused from challenging the medical evidence on an issue as substantive and fundamental as the right of the Accused to defend himself.142
The Trial Chamber gave careful consideration to the reasons given by the doctors for reaching the conclusions reflected above and, in doing so, took account of all the submissions made to it. Having done so, the Chamber found that, if 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.
6. Whether to Assign Counsel for the Accused
This Trial Chamber, and the International Tribunal as a whole, has gone to great lengths to accommodate the right of this Accused to represent himself. The Chamber, for its part, has upheld his strongly expressed desire to represent himself, even in circumstances where his health required substantial adjournments. The Chamber accommodated the assignment of three legal associates to assist the Accused outside of the courtroom in the preparation of his cross-examination of Prosecution witnesses, and preparations for the presentation of his defence; it also expanded the role of Amici Curiae to undertake substantial work in the character of defence counsel of which the Accused has clearly availed himself. The Chamber ordered the Registrar to provide the Accused with adequate facilities to conduct his defence.143 The Registrar has, in response, fully implemented these orders, making substantial facilities and resources available to the Accused so that he may have every opportunity to prepare and present his defence. Wide-ranging efforts have been made to assist the Accused. In the view of the Chamber, the time had come, however, to take further steps to ensure the fair and expeditious conclusion to this trial.
The fundamental duty of the Trial Chamber is to ensure that the trial is fair and expeditious. The concern of the Chamber was that, based on its findings above, the risk to the health, and indeed the life, of the Accused and the prospects that the trial would continue to be severely disrupted were so great as to be likely to undermine the integrity of the trial process. There was a real danger that this trial might last for an unreasonably long time or, worse yet, might not be concluded should the Accused continue to represent himself without the assistance of counsel. In the face of these circumstances, it would have been irresponsible to allow the Accused to continue to represent himself. No court, mindful of its duty to ensure a fair and expeditious trial and its inherent responsibility to preserve the integrity of its proceedings, could countenance this. On the other hand, the Chamber was satisfied that, if counsel was assigned to the Accused, measures could be devised to ensure that the trial continues in a manner that is both fair and expeditious.
In light of the history of the case and the conclusions that the Trial Chamber had reached, the Chamber was of the opinion that it was necessary to relieve the Accused of the burden of conducting his own case with a view to stabilising his health to ensure, so far as possible, that the trial proceeds with the minimum of interruption in a way that will permit the orderly presentation of the Accused's case and the completion of the trial within a reasonable time in his interests and the interests of justice: in other words, to secure for the Accused a fair and expeditious trial.
While the Trial Chamber was concerned to note that irregularities in the medical findings relating to non-adherence to the prescribed medical regime and the drugs found in the blood and in the possession of the Accused, the Chamber has not based this Decision on the Prosecution submission that the Accused has wilfully manipulated the trial timetable through these and other means.
The impact of taking this course should be seen in its wider context. The Accused remains entitled to the presumption of innocence,144 and the Prosecution must prove the case against him beyond reasonable doubt.145 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 his 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.146
Having decided to assign counsel to the Accused, it is the duty of the Trial Chamber to ensure that the role of assigned counsel is so fashioned that the trial process will protect the fundamental right of the Accused to a fair trial. In furtherance of this duty, the Chamber has issued an "Order on the Modalities to be Followed by Court Assigned Counsel" on 3 September 2004, in which it ordered:
(1) It is the duty of court assigned counsel to determine how to present the case for the Accused, and in particular it is their duty to:
(a) represent the Accused by preparing and examining those witnesses court assigned counsel deem it appropriate to call;
(b) make all submissions on fact and law that they deem it appropriate to make;
(c) seek from the Trial Chamber such orders as they consider necessary to enable them to present the Accused's case properly, including the issuance of subpoenas;
(d) discuss with the Accused the conduct of the case, endeavour to obtain his instructions thereon and take account of views expressed by the Accused, while retaining the right to determine what course to follow; and
(e) act throughout in the best interests of the Accused;
(2) The Accused may, with the leave of the Trial Chamber, continue to participate actively in the conduct of his case, including, where appropriate, examining witnesses, following examination by court assigned counsel;
(3) The Accused has the right, at any time, to make a reasonable request to the Trial Chamber to consider allowing him to appoint counsel; and
(4) Court assigned counsel is authorised to seek from the Trial Chamber such further orders as they deem necessary to enable them to conduct the case for the Accused.
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.
In an Order issued on 10 September 2004, the Trial Chamber granted a request for certification to appeal the oral decision by the Trial Chamber of 2 September 2004, in which it determined that it was both competent and appropriate to assign counsel to the Accused. In granting certification of the appeal, the Trial Chamber accepted the submission of the court assigned counsel that the decision of the Trial Chamber to assign counsel would affect fundamentally the future conduct of the trial and, as such, found that a resolution of the matter by the Appeals Chamber at this stage would be appropriate. The Trial Chamber also noted that, at the time the decision was made - and repeatedly later - the Accused both opposed the decision and expressed his desire to appeal the ruling.147
Done in both English and French, the English text being authoritative.
Dated this twenty-second day of September 2004
At The Hague
[Seal of the Tribunal]
1. Medical Report of Dr. P.R.M. van Dijkman, 18 August 2004; Medical Report of Professor Dr. R. Tavernier, 24 July 2004 ; Medical Report of Dr. van Dijkman, 26 August 2004; Medical Report of Professor Tavernier, 27 August 2004.
2. "Scheduling Order Concerning Recommencement of the Trial", 25 August 2004.
3. "Prosecution Submissions in Response to the Trial Chamber's 19 July 2004 'Further Order on Future Conduct of the Trial' ", 26 July 2004; "Prosecution Submission in Response to the Trial Chamber's 21 July 2004 'Further Order on Future Conduct of the Trial Relating to Severance of One or More of Indictments'", 27 July 2004; "Addendum to 'Prosecution Submission in Response to the Trial Chamber's 19 July 2004 "Further Order on Future Conduct of the Trial"' and also to 'Prosecution Submission in Response to the Trial Chamber's 21 July 2004 "Further Order on Future Conduct of the Trial Relating to Severance of One or more Indictments"'", 6 August 2004; "Prosecution Reply to 'Amici Curiae Submissions in Response to the Trial Chamber's "Further Order on Future Conduct of the Trial Concerning Assignment of Defence Counsel" dated 6 August 2004'", 19 August 2004; "Amici Curiae Submissions on the Trial Chamber's Further Order on Future Conduct of the Trial Relating to Severance of One or More Indictments dated 21 July 2004", 27 July 2004; "Amici Curiae Submissions in Response to the Trial Chamber's 'Further Order on Future Conduct of the Trial Concerning Assignment of Defence Counsel' dated 6 August 2004", 13 August 2004.
4. Prosecutor v. Milosevic, Case No. IT-99-37-I, "Written Note by the Accused", 3 July 2001, at Registry pp. 3371 -3372; Prosecutor v. Milosevic, Case No. IT-99-37-I, "Initial Appearance", 3 July 2001, at T. 1-2.
5. Prosecutor v. Milosevic, Case No. IT-99-37-PT, "Status Conference", 30 August 2001, at T. 6-7, 16-18.
6. Ibid at T. 15-18.
7. Originally the three Amici Curiae were Mr. Stephen Kay QC, Mr. G. Branislav Tapuskovic, and Professor Mischa Wladimiroff. Since the initial appointment, there have been changes both to the persons assigned and to the Amici Curiae's terms of reference, as ordered by the Trial Chamber ; notably, Professor Wladimiroff's appointment was revoked by the Registry, at the request of the Trial Chamber, on grounds of apprehension of bias, and Professor Timothy McCormack was designated as Amicus Curiae with respect to questions of international law. The Trial Chamber also issued on 27 June 2003 an "Order on Amici Curiae Request Concerning the Manner of Their Future Engagement and Procedural Directions Under Rule 98bis", ordering that Mr. Tapuskovic's appointment was to be concluded at the end of the Prosecution case and indicating that Mr. Kay and/or Ms. Gillian Higgins were to be present for the first four weeks of the defence case, after which the Trial Chamber would determine what role they would have (if any).
8. Hearing, 10 April 2002, at T. 2797 ; "Order", 16 April 2002.
9. "Order Appointing Branko Rakic as Legal Associate to the Accused", 23 October 2003.
10. The Trial Chamber was informed by UNDU that the Accused would not be present in court that day as he had complained of exhaustion and a medical report was being obtained. Hearing, 1 November 2002, at T. 12727. The Accused had previously been unable to attend court due to ill-health on 18-28 March 2002, 17-27 June 2002, and 18-19 July 2002. The medical reports obtained over this time reflected that the Accused suffered from hypertensive crisis and severely increased blood-pressure and had severe cardiovascular risks.
11. Hearing, 1 November 2002, at T. 12727.
12. "Observations by the Amici Curiae on the Health of the Accused and the Future Conduct of the Trial", 7 November 2002 ; "Submission from the Office of the Prosecutor on the Future Conduct of the Case in the Light of the State of the Accused's Health and the Length and Complexity of the Case", 8 November 2002; "Observations by the Amici Curiae on the Imposition of Defence Counsel on the Accused", 18 November 2002; "Prosecution's Response to the 'Confidential Observations by the Amici Curiae on the Health of the Accused and the Future Conduct o the Trial'", 18 November 2002.
13. Oral ruling by the Trial Chamber on 18 December 2002, at T. 14574.
14. "Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel", 4 April 2003, at para. 40.
15. Ibid at para. 39.
16. Medical Report of Dr. van Dijkman, 26 August 2002.
17. "Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel", 4 April 2003, at para. 42.
18. "Prosecution Motion for a Hearing to Discuss the Implications of the Accused's Recurring Ill Health", 23 September 2003.
19. "Order Concerning Prosecution Motion Concerning the Implications of the Accused's Health", 24 September 2003.
20. Medical Report of Dr. van Dijkman, 24 September 2003.
21. Oral ruling by the Trial Chamber on 30 September 2003, at T. 27021-27063.
22. See infra para. 56.
23. Hearing, 5 July 2004, at T. 32143.
24. Hearing, 5 July 2004, at T. 32153 -32154.
25. "Order on Future Conduct of the Trial", 6 July 2004 (requiring also Registrar to identify counsel who might be assigned to case).
26. "Further Order on Medical Examination of the Accused", 15 July 2004.
27. "Further Order on Future Conduct of the Trial", 19 July 2004; "Further Order on Future Conduct of the Trial Concerning Assignment of Defence Counsel", 6 August 2004.
28. "Further Order on Future Conduct of the Trial Relating to Severance of One or More Indictments", 21 July 2004.
29. Medical Report of Professor Tavernier, 24 July 2004.
30. Medical Report of Dr. van Dijkman, 18 August 2004.
31. "Order to Registrar Concerning Additional Medical Reports", 24 August 2004.
32. Medical Report of Professor Tavernier, 27 August 2004; Medical Report of Dr. van Dijkman, 26 August 2004.
33. "Prosecution Submission in Response to the Trial Chamber's 21 July 2004 'Further Order on Future Conduct of the Trial Relating to Severance of One or More Indictments'", 27 July 2004; "Amici Curiae Submissions on the Trial Chamber's Further Order on Future Conduct of the Trial Relating to Severance of One or More Indictments dated 21 July 2004", 27 July 2004 ; "Addendum to 'Prosecution Submission in Response to the Trial Chamber's 19 July 2004 "Further Order on Future Conduct of the Trial"' and also to 'Prosecution Submission in Response to the Trial Chamber's 21 July 2004 "Further Order on Future Conduct of the Trial Relating to Severance of One or more Indictments"'", 6 August 2004.
34. "Scheduling Order Concerning Recommencement of the Trial", 25 August 2004.
35. "Prosecution Submissions in Response to the Trial Chamber's 19 July 2004 'Further Order on Future Conduct of the Trial' ", 26 July 2004; "Addendum to 'Prosecution Submission in Response to the Trial Chamber's 19 July 2004 "Further Order on Future Conduct of the Trial"' and also to 'Prosecution Submission in Response to the Trial Chamber's 21 July 2004 "Further Order on Future Conduct of the Trial Relating to Severance of One or more Indictments"'", 6 August 2004; "Prosecution Reply to 'Amici Curiae Submissions in Response to the Trial Chamber's "Further Order on Future Conduct of the Trial Concerning Assignment of Defence Counsel " dated 6 August 2004'", 19 August 2004; "Amici Curiae Submissions in Response to the Trial Chamber's 'Further Order on Future Conduct of the Trial Concerning Assignment of Defence Counsel' dated 6 August 2004", 13 August 2004.
36. Prosecutor v. Milosevic, Case No. IT-99-37-PT, "Status Conference", 30 August 2001, at T. 15-18.
37. "Submission from the Office of the Prosecutor on the Future Conduct of the Case in the Light of the State of the Accused's Health and the Length and Complexity of the Case", 8 November 2002.
38. Prosecutor v. Barayagwiza, Case No. ICTR-97-19-T, "Decision on Defence Counsel Motion to Withdraw", 2 November 2000, at p. 10.
39. "Submission from the Office of the Prosecutor on the Future Conduct of the Case in the Light of the State of the Accused's Health and the Length and Complexity of the Case", 8 November 2002, at para. 18.
40. Ibid at para. 20.
41. Ibid at para. 4; see also "Prosecution's Submission on the Implications of the Accused's Recurring Ill-Health and the Future Conduct of the Case", 29 September 2003.
42. "Submission from the Office of the Prosecutor on the Future Conduct of the Case in the Light of the State of the Accused's Health and the Length and Complexity of the Case", 8 November 2002, at para. 5.
43. "Prosecution's Response to the 'Confidential Observations by the Amici Curiae on the Health of the Accused and the Future Conduct of the Trial'", 18 November 2002, at paras. 14-15; see also "Prosecution Submissions in Response to the Trial Chamber's 19 July 2004 'Further Order on Future Conduct of the Trial'", 26 July 2004.
44. "Prosecution Submissions in Response to the Trial Chamber's 19 July 2004 'Further Order on Future Conduct of the Trial' ", 26 July 2004, at para. 5.
45. Ibid at paras. 5, 38-39, 46.
46. Hearing, 5 July 2004, at T. 32149.
47. "Order on Future Conduct of the Trial", 6 July 2004; "Scheduling Order and Order to Registrar Concerning Medical Report", 12 July 2004; "Further Order on Medical Examination of the Accused", 15 July 2004.
48. "Addendum to 'Prosecution Submission in Response to the Trial Chamber's 19 July 2004 "Further Order on Future Conduct of the Trial"' and also to 'Prosecution Submission in Response to the Trial Chamber's 21 July 2004 "Further Order on Future Conduct of the Trial Relating to Severance of One or more Indictments"'", 6 August 2004; "Prosecution Reply to 'Amici Curiae Submissions in Response to the Trial Chamber's "Further Order on Future Conduct of the Trial Concerning Assignment of Defence Counsel" dated 6 August 2004'", 19 August 2004; see also Hearing, 1 September 2004, at T. 32301.
49. "Observations by the Amici Curiae on the Health of the Accused and the Future Conduct of the Trial", 7 November 2002, at para. 14.
50. "Observations by the Amici Curiae on the Imposition of Defence Counsel on the Accused", 18 November 2002, at paras. 7-11.
51. Ibid at para. 12; see also "Amici Curiae Submissions in Response to the Order of the Trial Chamber Concerning the Implications of the Accused's Health dated 24 September 2003", 27 September 2003.
52. Hearing, 1 September 2004, at T. 32337.
53. Hearing, 1 September 2004, at T. 32339-32340.
54. Hearing, 1 September 2004, at T. 32341.
55. Hearing, 1 September 2004, at T. 32342.
56. Hearing, 11 November 2002, at T. 12837.
57. Hearing, 1 September 2004, at T. 32348-32349.
58. Hearing, 5 July 2004, at T. 32150.
59. Hearing, 1 September 2004, at T. 32347.
60. Hearing, 1 September 2004, at T. 32348.
61. Hearing, 5 July 2004, at T. 32150 ; Hearing, 1 September 2004, at T. 32333, 32336, 32348-32349, 32354.
62. The right to a fair trial is provided for in the European Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention"), Art. 6-7 (as well as in Protocol 7); the American Convention on Human Rights ("American Convention"), Art. 5(3), 8, and 9; and the African Charter on Human and Peoples' Rights ("African Charter"), Art. 7. The United Nations Secretary-General in his Report (to which the Statute of the International Tribunal is attached and which is, therefore, an important element of the Statute's legislative history) states that the International Tribunal "must fully respect the internationally recognized standards regarding the rights of the accused at all stages of its proceedings". Significantly, the Report cites Article 14 of the ICCPR in its discussion of the fair trial requirement. See Report of the Secretary-General Pursuant to para. 2 of United Nations Security Council Resolution 808 (1993), at para. 106.
63. Prosecutor v. Tadic, Case No. IT-94-1-A, "Judgement", 15 July 1999, at para. 282; Prosecutor v. Delalic, et al., Case No. IT-96-21-A, "Judgement", 20 February 2001, at paras. 67-70.
64. Vienna Convention on the Law of Treaties (1969), 1155 U.N.T.S. 331, Part III, Art. 31(1).
65. See, e.g., Criminal Justice (Scotland) Act (1995), sec. 337B(2) (providing that, where during a trial the accused so misconducts himself that in the view of the court a proper trial cannot take place unless he is removed, the court shall appoint counsel to represent the interests of the accused if the latter is not legally represented).
66. Prosecutor v. Norman, et al., Case No. SCSL-04-14-T, "Decision on the Application of Samuel Hinga Norman for Self Representation Under Article 17(4)(d) of the Statute of the Special Court", 8 June 2004, at para. 8.
67. Ibid. at para. 27.
68. Prosecutor v. Barayagwiza, Case No. ICTR-97-19-T, "Decision on Defence Counsel Motion to Withdraw", 2 November 2000.
69. Ibid. at para. 21.
70. Prosecutor v. Barayagwiza, Case No. ICTR-97-19-T, "Decision on Defence Counsel Motion to Withdraw", 2 November 2000 (Concurring and Separate Opinion of Judge Gunawardana).
71. Prosecutor v. Šešelj, Case No. IT-03-67-PT, "Decision on Prosecution's Motion for Order Appointing Counsel to Assist Vojislav Šešelj with His Defence", 9 May 2003, at para. 20.
73. Ibid at paras. 27, 30, & Disposition, at p. 13.
74. Statute of ICTR, at Art. 20(4)( d); Statute of the International Criminal Court, at Art. 67(1)(d); Statute of SCSL, at Art. 17(4)(d); ICCPR, at Art. 14(3)(d); American Convention, at Art. 8(2)(d ); European Convention, at Art. 6(3)(c).
75. Croissant v. Germany, ECHR, 25 September 1992, Series A no. 237-B, 245.
76. Ibid at para. 29.
77. Ibid at para. 28.
78. Michael & Brian Hill v. Spain , Human Rights Committee, Communication No. 526/1993, U.N. Doc. CCPR/C/59/D/ 526/1993, 2 April 1997.
79. Ibid at para. 14.2.
80. 422 U.S. 806 (1975).
81. Ibid. at 835.
82. Ibid at 834, note 46 (citing Illinois v. Allen, 397 U.S. 337, 343 (1970)).
83. Ibid at 834, note 46 (citing United States v. Dougherty, 473 F. 2d 1113, 1124-1126 (D.C. Cir. 1972)); see also McKaskle v. Wiggins, 465 U.S. 168, 184 (1984) ("Accordingly, we make explicit today what is already implicit in Faretta: defendant's Sixth Amendment rights are not violated when a trial judge appoints standby counsel - even over the defendant's objection - to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant's achievement of his own clearly indicated goals. Participation by counsel to steer a defendant through the basic procedures of trial is permissible even in the unlikely event that it somewhat undermines the pro se defendant's appearance of control over his own defence ".).
84. United States v. Faretta, 422 U.S. 806, 834, note 46 (1975).
85. Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152, 154 (2000).
86. Ibid at 161-162.
87. Youth Justice and Criminal Evidence Act (England) 1999, secs. 34-35. Protected witnesses in the Act include complainants, witnesses to the crime and children.
88. Ibid at sec. 36.
89. Ibid at sec. 38.
91. Criminal Procedure (Scotland) Act 1995, sec. 288C(1), as amended by the Sexual Offences (Procedure and Evidence) ( Scotland) Act 2002.
92. Ibid at sec. 288D(2) (mandating also appointment of solicitor in event that accused, having engaged solicitor, then dismisses him, or accused's solicitor has withdrawn).
93. Ibid at sec. 288(D)(3).
94. Ibid at sec. 288(D)(4).
95. Criminal Code, RS 1985, sec. 486 (2.3).
96. Crimes Act 1914 (Cth), secs. 15YF, 15YG, 15YH; Evidence Act 1906 (Cth), sec. 106G; Criminal Procedure Act 1986 (NSW ), sec. 294A; Sexual Offences (Evidence and Procedure) Act 1983 (NT), sec. 5; Evidence Act 1977 (Qld), sec. 21(L)-(S).
97. Evidence Act 1908 (NZ), sec. 23F.
98. Articles 274 and 317 of the French Code of Criminal Procedure.
99. Section 140 of German Code of Criminal Procedure.
100. Article 294 of the Belgian Code of Criminal Procedure.
101. Section 41 of the Austrian Code of Criminal Procedure.
102. Section 11 of the Swiss Code of Criminal Procedure.
103.Articles 282 and 283 of the Code of Criminal Procedure of the Republic of Korea.
104. Article 71(1) of the Code of Criminal Procedure of the Federal Republic of Yugoslavia.
105. Article 71(4) of the Code of Criminal Procedure of the Federal Republic of Yugoslavia.
106. The Trial Chamber noted that the adversarial character of the proceedings of the International Tribunal is shown by the role of the Prosecutor, as set out in Article 18 of the Statute and by Rule 85 of the Rules, which identify the distinct roles for the Prosecutor and the Defence in the presentation of evidence. "Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel", 4 April 2003, at paras. 18-20.
107. Ibid at para. 40.
109. Ibid at para. 42.
110. Ibid at paras. 24-26.
111. Ibid at para. 40.
112. "Order on Future Conduct of the Trial", 6 July 2004; "Further Order on Medical Examination of the Accused", 15 July 2004.
113. See, e.g., "Scheduling Order and Order for Medical Examination", 27 June 2002; Medical Report of Dr. H. A. Rodrigues and Dr. J.W. Crosse, 19 July 2002.
114. Medical Report of Dr. van Dijkman, 26 August 2002.
116. Medical Report of Dr. van Dijkman, 26 September 2003.
117. Hearing, 30 September 2003, at T. 27063.
118. Medical Report of Dr. P.S.M. de Both, 4 February 2004; Medical Report of Dr. P.T.L.A. Falke, 20 February 2004.
119. Medical Report of Dr. van Dijkman, 20 November 2002 (noting that "(d(uring the tiring process of the trial, (the Accused( experiences a condition that looks like hypertensive urgency"). Dr. van Dijkman also noted then that "(i(f the values of the blood remain as high as those measured during the trial, there is a possibility that accelerated hypertension may occur". See also Medical Report of Dr. Falke, Medical Officer, UNDU, 5 September 2003. Smoking was identified by Professor Tavernier, in his medical report of 29 July 2004, as another risk factor for the Accused's cardiovascular disease.
120. Eight of these occasions related exclusively to problems with the Accused's blood pressure.
121. Medical Report of Dr. van Dijkman, 20 April 2004.
122. "Order to Registrar on Health of the Accused", 20 April 2003.
123. Medical Report of Dr. van Dijkman, 11 May 2004.
125. Medical Report of Dr. van Dijkman, 21 May 2004.
128. "Order Rescheduling and Setting the Time Available to Present the Defence Case", 25 February 2002.
129. "Report by the Registrar Pursuant to the Trial Chamber's 'Omnibus Order on Matters Dealt with at the Pre-Defence Conference', filed on 18 June 2004", 25 June 2004, at para. 7.
130. Medical Report of Dr. van Dijkman, 2 July 2004.
132. Medical Report of Professor Tavernier, 29 July 2004; Medical Report of Dr. van Dijkman, 20 August 2004.
133. Medical Report of Professor Tavernier, 27 August 2004; Medical Report of Dr. van Dijkman, 30 August 2004.
134. Medical Report of Professor Tavernier, 29 July 2004; Medical Report of Dr. van Dijkman, 26 August 2004.
135. Medical Reports of Professor Tavernier, 29 July 2004, 27 August 2004; Medical Reports of Dr. van Dijkman, 20, 30 August 2004.
136. Laboratory Report of Dr. D.J. Touw, 17 August 2004 (attached to the Medical Report of Dr. van Dijkman, 20 August 2004).
138. Medical Report of Dr. van Dijkman, 30 August 2004.
140. Hearing, 1 September 2004, at T. 32348-32349.
141. Hearing, 2 September 2004, at T. 32356.
143. With regard to facilities at UNDU, the Registry reported that the Accused is, inter alia, entitled to: receive and send uncensored mail and facsimile messages from and to his legal associates on weekdays; conduct unmonitored communications by telephone with his legal associates during all days of the week; receive scheduled visits of his legal associates during weekdays; make use of the photocopying facility of UNDU; review video evidence on VCR at UNDU; use his own portable computer in UNDU and, if he so wishes, install a printer to it. While appearing in court, the Accused is also allowed to access a privileged phone line during the trial breaks. The Accused is also able to send facsimiles and use photocopying facilities if urgently needed.
144. Statute of the International Tribunal, Art. 21(3).
145. Rule 87(A) of the Rules.
146. Furthermore, the Chamber has granted protective measures to secure attendance in respect of four defence witnesses, invited the Accused to submit appropriate applications in respect of others for whom he wishes similar arrangements, authorised the evidence of one witness to be taken by live video-conference link, and granted considerable indulgence to the Accused in respect of his failure to comply with his disclosure obligations. The Trial Chamber has not refused any application made in respect of the attendance of any witness for the defence.
147. "Order on Request for Certification to Appeal the Decision of the Trial Chamber on Court Assigned Counsel
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