Case No. IT-03-67-PT
IN TRIAL CHAMBER II
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Carmel A. Agius
Mr. Hans Holthuis
9 May 2003
DECISION ON PROSECUTION’S MOTION FOR ORDER APPOINTING COUNSEL TO ASSIST VOJISLAV SESELJ WITH HIS DEFENCE
The Office of the Prosecutor:
Ms. Hildegard Uertz-Retzlaff
Mr. Daniel Saxon
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.
Article 21 of the Tribunal’s Statute, “Rights of the Accused”, provides:
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:
(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.
The Rwanda Tribunal has an identical provision to Article 21(4)(d) in its Statute (Article 20(4)(d)) and also an additional provision in its Rules of Procedure and Evidence, Rule 45 Quarter on “Assignment of Counsel in the Interests of Justice”, which states:
The Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused.
The wording of Article 21 of this Tribunal’s Statute does not on its face exclude the possibility of offering an accused the assistance of assigned counsel where the interests of justice so require. The need may arise for unforeseeable reasons to protect an accused’s interests and to ensure a fair and expeditious trial.
(a) making submissions properly open to the Accused by way of a preliminary or other pre-trial motion;
(b) making any submissions or objections to evidence properly open to the Accused during the trial proceedings and cross-examining witnesses as appropriate;
(c) drawing to the attention of the Trial Chamber any exculpatory or mitigating evidence; and
(d) acting in any other way which designated counsel considers appropriate in order to secure a fair trial.
Counsel is assigned, not appointed. In the view of the Chamber, this 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. The aim is to obtain efficient representation and adversarial proceedings.21
Judge Gunawardana, making reference to the case law of the United States, advocated in such circumstances the procedure of court-appointed standby counsel under Article 20(4)(d) of the Statute of the Rwanda Tribunal.22 Indeed, he considered Article 20(4)(d) to be “an enabling provision for the appointment of a ‘standby counsel’” and highlighted the court’s power to control its own proceedings.
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(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 case if he does not have sufficient means to pay for it.
In the case of Michael and Brian Hill v Spain, the Human Rights Committee found that the accused had the right to defend himself pursuant to Article 14(3)( d) even where assistance was required by statute.35 However, this decision did not address the question of mandatory defence counsel in detail, and it is doubtful if it can be understood to imply that any rule requiring the assignment of defence counsel in the procedural codes of civil law systems is incompatible with the ICCPR. In other words, the Human Rights Committee does not go so far as to recognise an absolute right to self-representation. Indeed, the right to self-representation need not be incompatible with the requirement of assistance provided the defendant is not denied the opportunity to play any part in the proceedings. The Hill case is, moreover, distinguishable on its facts which reveal that assigned counsel were incompetent and the accused received an unfair trial in numerous respects.
Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
In the case of Croissant v Germany,36 the European Court of Human Rights found that Article 140 of the German Code of Criminal Procedure, “which finds parallels in the legislation of other Contracting states” was not incompatible with Article 6(3) of the Convention. Croissant was represented at his trial by two defence counsel of his choice and one court appointed defence counsel. He objected to the appointment of the third defence counsel and to the choice of the person concerned. The Regional Court considered that the third defence counsel was necessary to ensure that the trial would take its course according to the principles laid down in the Code of Criminal Procedure, and that the accused was adequately represented having regard to the possible length of the trial and to the size and complexity of the case.37 The Court of Appeal upheld this decision.38 Croissant submitted before the European Court of Human Rights that the appointment of a third defence counsel was unnecessary and that its main aim was to convenience the court by ensuring that the trial proceeded without interruptions or adjournments.39 The Court found that this aim corresponded to a relevant interest of justice that may well justify an appointment against the accused’s wishes.40 The Court then endorsed the Regional Court’s argument concerning the need to ensure that the accused was adequately represented throughout his trial, having regard to its probable length and to the size and complexity of the case.41 In the context of the right to be defended by counsel of one’s own choosing, the Court stated that this right was not absolute and that it was for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them.42 Therefore, while Croissant did not elect to represent himself, but rather chose to present his case through two counsel of his choosing, the case dealt with self-representation in a broader context and underscored that the aim of preserving proper trial order can be a valid reason for the assignment of counsel.
- to assist the Accused in the preparation of his case during the pre-trial phase whenever so requested by the Accused;
- to assist the Accused in the preparation and presentation of his case at trial whenever so requested by the Accused;
- to receive copies of all court documents, filings and disclosed materials that are received by or sent to the Accused;
- to be present in the courtroom during the proceedings;
- to be engaged actively in the substantive preparation of the case and to participate in the proceedings, in order always to be prepared to take over from the Accused at trial (see below);
- to address the Court whenever so requested by the Accused or the Chamber;
- to offer advice or make suggestions to the Accused as counsel sees fit, in particular on evidential and procedural issues;
- as a protective measure in the event of abusive conduct by the Accused, to put questions to witnesses, in particular sensitive or protected witnesses, on behalf of the Accused if so ordered by the Trial Chamber, without depriving the Accused of his right to control the content of the examination;56
- in exceptional circumstances to take over the defence from the Accused at trial should the Trial Chamber find, following a warning, that the Accused is engaging in disruptive conduct or conduct requiring his removal from the courtroom under Rule 80(B).
PURSUANT TO Rule 54 and for the foregoing reasons, the Trial Chamber
HEREBY DECIDES that standby counsel as defined in paragraph 30 above shall be assigned to the Accused in this case, and
STATES that standby counsel must be fluent both in B/C/S and in one of the official languages of the Tribunal, and
ORDERS the Registry to assign one standby counsel from the list of counsel kept by the Registrar under Rule 45(B), and
STATES that this Decision is without prejudice to any subsequent decision regarding the assignment or appointment of counsel fulfilling the requirements of Rule 44(A), or investigators57 or amici curiae, as the case progresses, either on application by either party or proprio motu, and
REJECTS the Prosecution’s Motion in so far as that Motion seeks an order from the Trial Chamber “directing the Registrar to appoint legal counsel to assist the accused Seselj with the preparation and conduct of his defence” without any limitation.
Done in English and French, the English version being authoritative.
Dated this ninth day of May 2003
At The Hague
Judge Wolfgang Schomburg
[Seal of the Tribunal]
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