Case No. IT-03-67-PT
Date: 25 October 2006
IN TRIAL CHAMBER I
Judge Alphons Orie, Presiding
Judge Patrick Robinson
Judge Frank Höpfel
Registrar: Mr Hans Holthuis
Order of: 25 October 2006
ORDER CONCERNING APPOINTMENT OF STANDBY COUNSEL
AND DELAYED COMMENCEMENT OF TRIAL
Office of the Prosecutor:
Ms Hildegard Uertz-Retzlaff
Mr Dan Saxon
Mr Ulrich Müssemeyer
Mr Vojislav Šešelj
(1) The Registrar is to appoint standby counsel with necessary support staff, at a level of remuneration and conditions of service to be determined by the Registrar, to perform the following functions in this case:
(a) to assist the Accused in the preparation and presentation of his case during the pre-trial and trial phases whenever so requested by the Accused;
(b) to offer advice or make suggestions to the Accused as standby counsel sees fit, in particular on evidential and procedural issues;
(c) to address the court whenever so requested by the Accused or the Trial Chamber;
(d) to receive copies of all court documents, filings, and disclosed materials that are received by or sent to the Accused;
(e) to be present in the courtroom during proceedings;
(f) to be prepared to take over the conduct of the defence from the Accused and effectively bring the defence case to conclusion;
(g) in the event of abusive conduct by the Accused, and if so ordered by the Trial Chamber, to put questions to witnesses, in particular sensitive or protected witnesses, on behalf of the Accused, without depriving the Accused of his right to control the strategy of the defence case;
(h) to temporarily take over the conduct of the defence from the Accused 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) of the Tribunal’s Rules of Procedure and Evidence;
(i) to permanently take over the conduct of the defence from the Accused should the Trial Chamber find that the Accused’s conduct is substantially obstructing the proper and expeditious proceedings, having allowed the Accused the right to be heard with respect of the conduct in question.
(2) A status conference in this case shall be held on Wednesday, 1 November 2006. This may be followed by a pre-trial conference, if the Trial Chamber so decides.
(3) The commencement of the trial is postponed until further order of the Trial Chamber.
(4) The CLSS is kindly and exceptionally requested to prioritize the translation of the present order so that it may be delivered to the Accused as soon as possible, and in any case no later than 30 October 2006.
- On 20 October 2006, the Appeals Chamber of the International Tribunal reversed a decision of Trial Chamber I, issued on 21 August 2006, which had assigned counsel to the Accused and had thereby terminated his self-represented status. The Appeals Chamber, in its decision, held that the Trial Chamber had not erred in finding that the Accused’s conduct had met the threshold test of "substantial and persistent obstruction to the proper and expeditious conduct of the trial". In particular:
As noted by the Trial Chamber, the frivolous and abusive nature of many of Šešelj’s 191 pre-trial submissions; his wilful refusal on a number of occasions to follow the rules for the proceedings as established by the International Tribunal’s Rules and Practice Directions as well the orders of the Trial Chamber; his persistent use of abusive language in his submissions and during his pre-trial appearances in the courtroom; his revelation of the name of a protected witness, intimidation of potential witnesses, and unauthorized disclosure of confidential materials; and his continued obstructionist and disruptive behaviour despite repeated general warnings from the Trial Chamber, Appeals Chamber, Bureau and President of the International Tribunal, clearly suffice to lead to the conclusion that Šešelj displayed a deliberate lack of good faith to cooperate in pre-trial proceedings, which led to considerable disruption and waste of the International Tribunal’s resources. This consistent disruptive conduct warrants the conclusion that if Šešelj were to represent himself at trial, such behaviour would continue and lead to similar substantial disruption to the trial proceedings.
- According to the Appeals Chamber, however, the Trial Chamber did err in not formally warning the Accused that such conduct could lead to withdrawal of the permission granted to him to represent himself before a court of law. The Appeals Chamber proceeded to warn the Accused "that, should his self-representation subsequent to this Decision substantially obstruct the proper and expeditious proceedings in his case, the Trial Chamber will be justified in promptly assigning him counsel after allowing Šešelj the right to be heard with respect to his subsequent behaviour."
- The consequence of the Appeals Chamber’s decision is that defence counsel assigned pursuant to the Trial Chamber’s decision of 21 August 2006 no longer represent the Accused. Moreover, the standby counsel, Mr van der Spoel, who had been appointed to this case on 16 February 2004, was withdrawn by the Registrar in the wake of the appointment of assigned counsel. The case was scheduled to go to trial on 2 November 2006, but the Trial Chamber does not consider this course of action prudent in the absence of standby counsel. Moreover, the Trial Chamber is presently not in a position to know whether the Accused can fairly be expected to begin to defend himself at trial starting on the scheduled trial date. Among other reasons, several responses by assigned counsel to important Prosecution motions were due prior to or by the end of that week. A new timetable of responses to those motions will need to be set for the Accused. Moreover, the Trial Chamber has been informed by the Conference and Language Services Section of the Tribunal (CLSS) that a translation into Serbo-Croatian of the Appeals Chamber’s decision is not expected before 8 November 2006 (the Accused does not have a working knowledge of English).
- A determination of a new start date for the trial is to be made at a status conference on 1 November 2006. If by that time standby counsel has been appointed and the Trial Chamber finds that the case may fairly proceed to trial, a pre-trial conference may be held on the same day. The Trial Chamber is already in a position to inform the parties that the courtroom reservations for 2 and 3 November 2006 have been vacated due to the current uncertainty.
- In conclusion, the Trial Chamber ORDERS as follows:
Done in English and French, the English version being authoritative.
Judge Frank Höpfel
Dated this 25th day of October 2006
[Seal of the Tribunal]