Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Florence Mumba
Judge Inés Mónica Weinberg de Roca
Mr. Hans Holthuis
20 January 2004
DECISION ON THE INTERLOCUTORY APPEAL BY THE AMICI CURIAE AGAINST THE TRIAL CHAMBER ORDER CONCERNING THE PRESENTATION AND PREPARATION OF THE DEFENCE CASE
Counsel for the Prosecutor:
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome
Mr. Steven Kay, QC
Mr. Branislav Tapuskovic
Mr. Timothy L.H. McCormack
1. This appeal concerns the Trial Chamber’s order granting the Accused three months to prepare his defence and requiring him to file, within six weeks of the adjournment, a list of witnesses and exhibits he intends to present.
2. The Accused, Slobodan Milosevic, was indicted on 24 May 1999 and transferred to the custody of the Tribunal on 28 June 2001.1 The Accused pleaded not guilty, and his trial commenced on 12 February 2002.
3. On 2 September 2003, the Trial Chamber held a Status Conference to discuss the anticipated conclusion of the Prosecution’s case and the necessary preparations for the presentation of the Defence case.2 The Accused requested a continuance of over two years to prepare his defence, pointing to the fact that he is conducting his own defence, the complexity of the case, a large number of witnesses he anticipated to present, and the extensive material disclosed by the Prosecution which he must examine. Stressing the same considerations, the amici seconded the Accused’s request for an adjournment of considerable duration, though they did not suggest a specific period. On 17 September 2003, the Trial Chamber issued its ruling, granting the Accused an adjournment of three months to prepare his defence and requiring him to file, within six weeks of the adjournment, a list of witnesses and evidentiary exhibits he intends to present.3 Upon a request by the amici, the Trial Chamber certified its decision for an interlocutory appeal.4 The Chamber noted that the request fell within the scope of the Trial Chamber’s instructions that the amici act in any way they consider appropriate to secure a fair trial to the Accused and that it could be construed as a request for certification from the Accused’s application for a two-year continuance.5
4. Rule 73 of the Rules of Procedure and Evidence, pursuant to which this appeal is brought, entitles “a party” to appeal a decision of the Trial Chamber after having requested and obtained certification. The rule does not confer such a right upon an amicus curiae appointed by a Trial Chamber pursuant to Rule 74. The amici do not act as representatives of the Accused at trial, but solely as assistants to the Trial Chamber.6 Not being a party to the proceedings, the amici are not entitled to use Rule 73 to bring an interlocutory appeal. The fact that the amici were instructed by the Trial Chamber to take all steps they consider appropriate to safeguard a fair trial for the Accused does not alter this conclusion.
5. However, as the Trial Chamber observed, there is an identity of interests between the amici and the Accused with respect to the issue presented in this appeal. After the Trial Chamber announced its decision to set the adjournment at three months, the Accused stated that he “categorically protest[s] against this ruling.”7 The Accused added: “Every decision or ruling can be re-examined and abolished, and that is my request and demand, that it be rethought.”8 These statements by the Accused, considered in context of his prior request for a continuance in excess of two years, indicate that the amici’s present request is aligned with that of the Accused, and that the Appeals Chamber’s consideration of this appeal would not infringe his interests. Nor is there a danger of unfairness to the Prosecution. The Prosecution does not oppose the consideration of the appeal; in fact, the Prosecution represented to the Trial Chamber its willingness to accept the amici as a party for these purposes.9 It is also to be noted that in this case the consideration of the appeal serves the interests of justice. In these circumstances, the Appeals Chamber decides to consider the appeal.
6. The amici argue that both periods set out by the Trial Chamber are unreasonably short for the Accused to prepare a meaningful defence, and ask the Appeals Chamber to replace them with “such longer period[s] that [are] both adequate and sufficient for the preparation of the Accused’s case.”10 The amici argue that in reaching its decision the Trial Chamber failed to consider, or gave insufficient thought to, the following factors: (a) the relatively short period of time in which the case came to trial; (b) the considerable time available to the Prosecution to prepare its case; (c) the voluminous Prosecution disclosure; (d) the scope and number of issues raised in the indictment; (e) the ill health of the Accused; (f) the fact that the Accused represents himself and lacks resources comparable to the Prosecution; (g) the fact that the Prosecution has not yet completed its case; and (h) the fact that Prosecution intends to submit new witnesses.11 As the amici point out, the Prosecution disclosed to the Accused a total of 350,000 pages, with extensive disclosure taking place during the last few months of the trial.12 To support a showing of the Accused’s ill health, the amici attach reports from examining physicians, who concluded that the Accused is suffering from high blood pressure exacerbated by fatigue.13 The amici also argue that the Trial Chamber erred in relying on the fact that the Accused is assisted by two legal assistants, because it did not consider any evidence as to the nature and extent of that support.14
7. As the decisions of the Tribunal hold, and as the amici acknowledge, the Trial Chamber’s order may be overturned only if the Chamber has erred in the exercise of its discretion in setting the time limits.15 The amici must demonstrate that the Trial Chamber “has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.”16 In examining whether the Trial Chamber has considered appropriate factors in sufficient measure, the Appeals Chamber is not limited to the text of the order issued by the Trial Chamber. While a Trial Chamber has an obligation to provide reasons for its decision, it is not required to articulate the reasoning in detail.17 The fact that the Trial Chamber did not mention a particular fact in its written order does not by itself establish that the Chamber has not taken that circumstance into its consideration.18 The verbal commentary by the Presiding Judge which accompanied the announcement of the ruling and the colloquy which took place during the preceding Status Conference are also relevant to the question of whether the Trial Chamber gave the issues involved due consideration.
8. The Trial Chamber’s order expressly referred to the facts that the Accused is representing himself and that, being in detention, he has limited resources at his disposal.19 In announcing the ruling, the Presiding Judge of the Trial Chamber, Judge May, also stated that the Trial Chamber has considered the duration of the trial and the time the Accused has already spent in detention.20 With respect to the latter factor, Judge May noted that during this time (2 years and 3 months ), the Accused “had the opportunity to consider and make preparations for his defence.”21 Judge May reiterated that the Chamber has considered the fact that the Accused “has elected to represent himself ” and underscored that “the Tribunal should provide appropriate logistical assistance to enable the accused to prepare his defence whilst in detention.”22 In general, Judge May explained, in designing the order, the Trial Chamber has “ balance[d] the need for the accused to have adequate time for the preparation of his case and the need for an expeditious trial.”23
9. During the 2 September Status Conference, convened to discuss the preparation of the Defence case, the Trial Chamber mentioned similar considerations. Judge May noted that the Trial Chamber will consider how the applicable Rules of Procedure and Evidence of the Tribunal can be adapted “to take account of the fact that the accused is appearing in person.”24 He also indicated the Chamber will consider that “the accused must make the preparations for his defence while he is in custody,” and “the resources which the Prosecution have as against the resources which he [the Accused] has.”25 Judge May added that the Chamber “will consider what is a reasonable amount of time for the accused to have to prepare his case” and “what practical arrangements can be made in order for him to prepare witnesses and to prepare exhibits and generally to prepare his case.”26
10. The lead counsel for the amici, Steven Kay, was asked to express his views on the time the Accused would need to prepare his case. He expressly identified many of the factors he now argues the Trial Chamber has failed to consider. First, he referred to the quick pace in which the case was brought to trial subsequent to the arrest of the Accused: “If we start from the date of his [the Accused’s] arrest, which was in June 2001, he was very quickly at the trial stage by February 2002.”27 Mr. Kay argued that during that period the Accused could not have engaged in a “meaningful preparation of any defence because of the scale of the papers and the issues that had to be dealt with pre-trial.”28 Nor, in Mr. Kay’s view, could the Accused have undertaken this preparation subsequent to the trial’s commencement, because he was “continuously involved in dealing with the many issues that the case has provided.”29
11. Mr. Kay also reminded the Chamber that the Accused “has very limited resources available to him and limited support.”30 The only “direct team” the Accused has had were “the services of two associates and whatever support they can muster.”31 Mr. Kay then asked the Chamber to bear in mind the disparity in resources between the Accused and the Prosecution as well as the complexity of the case confronting the Accused.32 Mr. Kay also called upon the Chamber to “reflect as to the length of the time the Prosecutor has had for the preparation of their cases,” and contrasted it with the fact that for the Accused, “it is a fresh case, and it is a case that he has to present with no previous history of litigation to draw upon.”33
12. The colloquy between the bench and the lead amici counsel then turned to such factors as the convenience of the Trial Chamber or of the Tribunal. In arguing for a lengthy recess, Mr. Kay acknowledged that such a prolonged break “ may be inconvenient for the system, and  may be inconvenient for the life of this Tribunal.”34 Judge May responded: “You refer to the convenience of the Tribunal or the Court. Those, of course, are totally irrelevant matters.”35 Instead, Judge May emphasized, the relevant considerations are, on one hand, the need for the criminal trial of the Accused to proceed and, on the other, the need “to ensure that there is a fair trial, and that does involve the accused in having an adequate time, which must be a matter of judgement, in order to present his case.”36
13. During the Status Conference the Trial Chamber also ascertained, and the amici confirmed, that the Accused was able to obtain material relevant to the preparation of his defence, as evidenced by the detailed questions posed by the Accused on cross-examination.37 Mr. Kay expressly acknowledged, in response to a query from Judge Robinson, that an adequate preparation of the defence case depends not only on the time the Accused is given to prepare but also on the facilities made available to him.38 Mr. Kay stated that, where a defendant is given a period of time less than two years but is provided with significant facilities and resources, that may be sufficient to ensure adequate preparation.39
14. The Trial Chamber also addressed the matter of having the Accused prepare and present a list of witnesses he intends to call. As a part of the colloquy on this issue, Mr. Kay reminded the Chamber that the Accused may have difficulty in estimating how many witnesses he would wish to call.40 The difficulty, in Mr. Kay’s view, stemmed from the fact that “[t]he Prosecution case is still open, [and] we still have a large number of witnesses to come to court to be heard, and we know that that list is still not closed as far as they [the Prosecution] are concerned; there are new witnesses being added every week.”41
15. Both the colloquy which took place during the Status Conference and the oral commentary on the order given by Judge May on 17 September show that the Trial Chamber was aware of every single one of the factors the amici now contend the Chamber failed to consider properly: (a) the short period of time in which the case came to trial; (b) the time the Prosecution had to prepare its case; (c) the amount of Prosecution disclosure; (d) the size and complexity of the indictment; (e) the health of the Accused; (f) the decision of the Accused to represent himself and the limited nature of his legal resources; (g) the fact that the Prosecution case was not yet complete; (h) the fact that the Prosecution intended to present new witnesses. The Chamber either explicitly referenced these factors in the order itself and in the accompanying commentary or was informed about them by the amici during the Status Conference.
16. Given that the Trial Chamber has considered all the relevant factors, the issue becomes whether its analysis of these factors was so deficient as to constitute an error in the exercise of discretion. It must be noted that a Trial Chamber has discretion with respect to the scheduling of a trial and, in particular, with respect to the determination of the time required for a trial.42
17. The Trial Chamber here has solicited from the Accused, the amici and the Prosecution a sizeable body of information as to how long the Accused would need to prepare his case and at what point he may be in a position to produce a list of witnesses. On the basis of this information, the Trial Chamber concluded the required time to be three months. In reaching this decision, the Trial Chamber explicitly stated that it was considering both the necessity to safeguard a fair trial for the Accused and the need to ensure an expeditious trial proceeding.43 The Trial Chamber also made clear that it was not guided by inappropriate considerations, such as the desirability, for the convenience of the Tribunal, of a rapidly progressing trial.44
18. The authority best placed to determine what time is sufficient for the Accused to finish preparing his defence in this admittedly complex case is the Trial Chamber which has been conducting his trial for over two years. The Trial Chamber’s decision was informed both by sufficient factual information and by the appropriate legal principles, and did not take into account any impermissible factor. The Chamber has made that determination with proper regard to the importance of ensuring a fair trial for the Accused and with an explicit disclaimer of such inappropriate considerations as the completion target for the Tribunal’s work. The amici, who bear the burden of demonstrating that the Trial Chamber has erred in the exercise of its discretion, have not presented evidence sufficient to substantiate their claim.
19. There is no doubt that, by choosing to conduct his own defence, the Accused deprived himself of resources a well-equipped legal defence team could have provided. A defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel. The legal system’s respect for a defendant’s decision to forgo assistance of counsel must be reciprocated by the acceptance of responsibility for the disadvantages this choice may bring.45 Where an accused elects self-representation, the concerns about the fairness of the proceedings are, of course, heightened, and a Trial Chamber must be particularly attentive to its duty of ensuring that the trial be fair.
20. In this case, the Trial Chamber indicated that it will ensure that the Accused be provided with resources sufficient to prepare his defence.46 The Trial Chamber, moreover, expressed willingness to consider additional ways to provide the Accused with time to prepare, such as decreasing the hours of court time. 47 The Trial Chamber acted with proper sensitivity to the concerns of a self-representing defendant, and there is no violation of the Accused’s right to a fair trial by the time limits imposed.48 The Trial Chamber has, of course, a continuing obligation to ensure a fair trial to the Accused. As a part of that obligation, the Trial Chamber may consider allowing additional adjournments in the future if a showing is made that the Accused lacks sufficient time or resources for the preparation of his defence.
21. The appeal is dismissed.
Done in English and French, the English text being authoritative.
Judge Theodor Meron
Dated this 20th day of January 2004,
At The Hague,
Judge Shahabuddeen appends a separate opinion.
[Seal of the Tribunal]
(a) Whether the amici curiae are a party
(b) Whether the appeal was brought by the accused acting by himself
(c) Whether the appeal was brought by the accused acting through the amici curiae as his counsel
(i) Were the amici capable in law of acting as counsel for the accused?
(ii) If they were capable in law of acting as counsel for the accused, did he authorise them to act as his counsel?
Done in English and in French, the English text being authoritative.
Dated 20 January 2004
At The Hague
[Seal of the Tribunal]