Case N°: IT-02-54
IN THE TRIAL CHAMBER
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon
Registrar: Mr. Hans Holthuis
Decision of: 4 April 2003
REASONS FOR DECISION ON THE PROSECUTION MOTION CONCERNING ASSIGNMENT
Office of the Prosecutor:
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Ms. Hildegaard Uertz-Retzlaff
Mr. Dermot Groome
Mr. Steven Kay
Mr. Timothy McCormack
Mr. Branislav Tapuskovic
- This Trial Chamber of the International Criminal Tribunal for the former
Yugoslavia (“International Tribunal” or “ICTY”) sets out its reasons for its
oral ruling on 18 December 2002, rejecting a motion by the Office of the Prosecutor
(“Prosecution ”) that defence counsel should be imposed on the accused Slobodan
Milosevic (“Accused ”).
- The background is as follows. On 3 July 2001, the Accused informed the
Trial Chamber , both in writing and during his initial appearance for the
Kosovo indictment, that for purposes of the court proceedings, he did not
want to be represented by a lawyer .( 1)
- On 30 August 2001, during the first Status Conference, the Trial Chamber
noted that the Accused is entitled to represent himself. In light of the Accused’s
decision to do so, and the Trial Chamber’s duty to ensure that the trial is
fair and that the rights of the Accused are fully respected, the Trial Chamber
decided to invite the Registrar to appoint Amicus Curiae to assist
it in the proper determination of the case. The Trial Chamber stressed that
the role of the Amicus Curiae would not be to represent the Accused,
but to assist the court by: (a) making submissions properly open to the Accused
by way of 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.( 2 ) However, the Prosecution
suggested that, in addition to the Amicus Curiae , the Trial Chamber
should assign a Defence Counsel for the Accused. The Trial Chamber rejected
this proposal, stating that in accordance with the Statute and the Rules of
the International Tribunal (“Statute” and “Rules”) “the accused has a right
to counsel, but he also has a right not to have counsel.”(
- Following a Decision by the Appeals Chamber, the Kosovo indictment was
joined with two other cases against the Accused; the Croatia indictment and
the Bosnia indictment .(4) The trial on the three
joined indictments against the Accused began on 12 February 2002.
- During a hearing on 10 April 2002 the Accused identified Mr. Zdenko Tomanovic
and Mr. Dragoslav Ognjanovic (both lawyers), as associates with whom he wished
to communicate .(5) In an Order of 16 April 2002,
the Trial Chamber noted that the Accused was defending himself in person and
that he had indicated that he did not intend to appoint counsel. The Trial
Chamber stated that it would be in the interests of a fair trial for the Accused
to meet with and be able to communicate freely with persons for legal advice,
and to be able to discuss and supply them with copies of documents subject
to Trial Chamber Orders imposing non-disclosure to third parties, and consequently
granted the Accused privileged communication with Mr. Tomanovic and Mr. Ognjanovic
(as “Legal Associates”).( 6)
- With regard to the issue whether the Accused had access to adequate facilities
to conduct his defence, on 24 April 2002, the Trial Chamber made a ruling
in relation to those facilities available to the Accused. Having considered
a Brief by the Amici Curiae(7) and a Registry
Report ( 8 ) on the matter, the Trial Chamber
found that, in accordance with Article 21 of the Statute, the Accused had
adequate time and facilities for the preparation of his defence, and that
it was satisfied that “all possible efforts ?wereg being made to assist him.”(
- On 8 November 2002 the Prosecution filed a Motion entitled “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’, which, inter alia, contained the proposal that the Trial
Chamber should appoint defence counsel for the Accused (“Prosecution’s Motion”).
The Accused again rejected this suggestion in court on 11 November 2002 (“Accused’s
Submission”).( 10 ) On 18 November 2002 the Amici
Curiae filed “Observations by the Amici Curiae on the Imposition
of Defence Counsel on Accused” (“Amici Observations ”). Finally, on
20 November 2002 the Prosecution filed confidentially an “Addendum to the
Prosecution’s Response to the Confidential Observations by the Amici Curiae
on the Health of the Accused and the Future Conduct of the Trial’, which
also concerns the issue of imposition of defence counsel on the Accused.
- As noted, on 18 December 2002 the Trial Chamber rejected the Prosecution’s
Motion , stating that “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 .”( 11 )
B. THE LAW
- Article 20 of the Statute is entitled “Commencement and conduct of trial
proceedings ”. Paragraph 1 reads:
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 Statute sets out the rights of the accused. Paragraph
4 provides :
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 :
(b) to have adequate time and facilities for the preparation of his defence
and to communicate with counsel of his own choosing;
(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;
a) The Prosecution
- In the Prosecution’s Motion, the Prosecution notes that the Accused has
elected to conduct his own defence, at all times refusing the assistance of
defence counsel . “By doing so he has inevitably increased the strain on his
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.”( 12 )
In this connection the Prosecution stresses that the public interest demands
a comprehensive prosecution of the indictment 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.( 13 )
It submits that there is no norm of customary international law prohibiting
the imposition of counsel on an accused who wants to represent himself, and
refers to a number of civil law systems, according to which legislation often
require that counsel be imposed on an accused.( 14 )
- The Prosecution submits that the Statute allows a Chamber to impose defence
counsel on an accused and relies on the opinion of Judge Gunawardana in the
Barayagwiza case in the International Criminal Tribunal for Rwanda
(“ICTR”) that “the assignment of Counsel is envisaged “where the interests
of justice so require.” Thus, the Prosecution submits that Article 21 (4)
(d) “also envisages the assignment of defence counsel in the present circumstances,
where the health of the accused, the complexity of the case and the public
interest in the completion of this trial combine, with the result that it
is in the interests of justice to assign legal counsel.”(
- The Prosecution also submits that Article 20 of the Statute necessitates
the imposition of defence counsel on the Accused, since it requires the Trial
Chamber to ensure that “a trial is fair and expeditious”.(
16 ) However, the Prosecution states that “[a]lthough it would be
problematic in the essentially adversarial process of the Tribunal to incorporate
wholesale the civil law practice of allowing an accused to play a direct role
in the proceedings even when counsel is assigned, the Prosecution would suggest
that there might nevertheless remain some limited scope for the accused to
participate directly in the proceedings with the leave of the Chamber.”(
b) The Accused
- On 11 November 2002 the Accused stated that the Prosecution, by seeking
to have counsel imposed on him “is trying to take away my right to speak here
and to impose some sort of lawyers, counsel on me, and it has no right to
do so.” When asked by the Trial Chamber whether it would not be sensible for
his Legal Associates to sit in court and assist him, the Accused replied that
he did not need his Legal Associates with him in court.(
18 ) Finally , the Accused relied on the judgement of the U.S. Supreme
Court in Faretta v. California, considered below.(
c) The Amici Curiae
- The Amici Curiae rely on Article 21 (4) (d) of the Statute, 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 submit that
the minimum guarantees of the ICTY Statute in addition to the international
and European conventional law explicitly protect the Accused’s right to defend
himself in person. “Any imposition of counsel upon the Accused against his
wishes would constitute a breach of his guaranteed rights.”(
- In dealing with the opinion of Judge Gunawardana in Barayagwiza,
referred to above, the Amici Curiae point out that the circumstances
were very different in that case. The issue was whether the ICTR Trial Chamber
would allow defence counsel to withdraw from the case in circumstances where
the accused had instructed defence counsel not to represent him in any respect
during the trial. That Trial Chamber held that the accused was boycotting
the trial, that his actions were obstructing the course of justice, and that
defence counsel should not withdraw. Thus, the Amici Curiae note that
Barayagwiza chose not to attend his trial and, crucially , that he did not
assert his right to self-representation; whereas the Accused in the present
case has consistently asserted his right to represent himself.(
- The Amici Curiae further point out that the Prosecution’s examples
of mandatory provision of defence counsel are drawn from inquisitorial systems
where the functions of defence counsel in a trial are very different from
those in the adversarial form of trial adopted at the International Tribunal.
For instance, the obligation of “putting a case”, which is required of the
defence in the adversarial system, is impossible for an advocate to achieve
without instructions from the Accused as to the nature of the defence. Therefore,
the Amici Curiae submit, “?ngo meaningful trial would be possible if
the advocate was not instructed by the Accused.”( 22 )
The Amici Curiae note that in England and Wales, where an accused expresses
a desire to conduct his own defence, he should be allowed to do so and counsel
should not be assigned to him against his will.( 23 )
- In conclusion, the Amici Curiae request the Trial Chamber not to
assign defence to the Accused.( 24 ) “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.”( 25 )
- As noted Article 21 (4) of the Statute provides that:
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;
A plain reading of this provision indicates that there is a right to defend
oneself in person and the Trial Chamber is unable to accept the Prosecution’s
proposition that it would allow for the assignment of defence counsel for
the Accused against his wishes in the present circumstances.
- This interpretation is supported by the nature of the proceedings at the
- As already noted, the proceedings of the International Tribunal are essentially
adversarial and it is against that background that this Discussion must follow.
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 identifies the distinct roles for the Prosecutor
and the Defence in the presentation of evidence.
- Adversarial proceedings are a feature of the common law and find little
echo in systems based on civil law. As the Amici Curiae have correctly
observed, the imposition of a defence counsel upon an accused who does not
want one is a feature of inquisitorial systems, but not of adversarial systems.
- The reasons for this common law rule are clearly set out by the U.S. Supreme
Court in Faretta v. California, which concerned the question whether
a defendant in a state criminal trial has a right under the U.S. Constitution
to proceed without counsel when he voluntarily and intelligently elects to
do so.( 26 ) The Court noted that “[t]his Court’s
past recognition of the right of self-representation , the federal-court authority
holding the right to be of constitutional dimension , and the state constitutions
pointing to the right’s fundamental nature form a consensus not easily ignored.
[…] We confront here a nearly universal conviction , on the part of our people
as well as our courts, that forcing a lawyer upon an unwilling defendant is
contrary to his basic right to defend himself if he truly wants to do so”.(
27 ) The Court found that “[t]he language and spirit of the Sixth
Amendment contemplate that counsel, like the other defence tools guaranteed
by the Amendment, shall be an aid to a willing defendant – not an organ of
the State interposed between an unwilling defendant and his right to defend
himself personally. To thrust counsel upon the accused, against his considered
wish, thus violates the logic of the Amendment. In such a case, counsel is
not an assistant, but a master, and the right to make a defence is stripped
of the personal character upon which the Amendment insists.”(
28 ) The Court thus concluded that the Sixth Amendment, when naturally
read, implies a right of self-representation, and noted that this reading
is reinforced by the Amendment’s roots in English legal history. It pointed
out that only the sixteenth century Star Chamber in the long history of English
legal history adopted a practice of forcing counsel upon an unwilling defendant
in criminal proceedings, and recounted Stephen’s comment on this procedure:
“There is something specially repugnant to justice in using rules of practice
in such a manner as to debar a prisoner from defending himself, especially
when the professed object of the rules so used is to provide for his defence.”(
29 ) The Court noted that with the exception of the practice of
the Star Chamber, the right to self-representation in England predates the
right to legal counsel in serious crime cases.( 30 )
- The Supreme Court also said: “It is undeniable that in most criminal prosecutions
defendants could better defend with counsel’s guidance than by their own unskilled
efforts. But where the defendant will not voluntarily accept representation
by counsel, the potential advantage of a lawyer’s training and experience
can be realized , if at all, only imperfectly. To force a lawyer on a defendant
can only lead him to believe that the law contrives against him.”(
- There is a further practical reason for the right to self-representation
in common law. While it may be the case that in civil law systems it is appropriate
to appoint defence counsel for an accused who wishes to represent himself,
in such systems the court is fulfilling a more investigative role in an attempt
to establish the truth. In the adversarial systems, it is the responsibility
of the parties to put forward the case and not for the court, whose function
it is to judge. Therefore , in an adversarial system, the imposition of defence
counsel on an unwilling accused would effectively deprive that accused of
the possibility of putting forward a defence . In this connection, Article
21 (4) (d) of the Statute may be said to be reflective of the common law position.
- Furthermore, the obligation of “putting a case”, i.e. putting forward
the defence version of events if it differs from that put forward by a witness,
is reflected in Rule 90 (H) of the Rules. As the Amici Curiae note,
such an obligation cannot be fulfilled by counsel who is not instructed by
an accused as to the defence to put forward.
- All these reasons lead the Trial Chamber to reject the suggestion that
defence counsel should be imposed on an accused against his will in
proceedings that are essentially adversarial.
- The Trial Chamber turns to consider the international and regional conventions.
(The emphasis has been supplied in the following citations.) Article 14 (3)
(d) of the International Covenant on Civil and Political Rights (“ICCPR”)
provides that in the determination of any criminal charge against him, everyone
shall be entitled to the following minimum guarantees, in full equality:
To be tried in his presence, and to defend himself in person or
through legal assistance of his own choosing; [...].
- Article 67 (1) (d) of the Statute of the International Criminal Court (“ICC
Statute ”) provides that an accused has the right:
to be present at the trial, to conduct the defence in person or
through legal assistance of the accused’s choosing, […].
(This right is subject to Article 63 (2), which deals with disruptive conduct
by the accused in the courtroom.)( 32 )
- Article 8 (2) (d) of the American Convention on Human Rights (“ACHR”) provides
that every person is entitled, with full equality, to the following minimum
the right of the accused to defend himself personally or to be
assisted by legal counsel of his own choosing, […].
- Article 6 (3) (c) of the European Convention on Human Rights provides that
everyone charged with a criminal offence has the following minimum rights:
to defend himself in person or through legal assistance of his
own choosing […].
- The Accused relies on the provisions of these conventions.(
33 ) However, the Prosecution seeks to qualify them. In particular,
the Prosecution relies on Croissant v. Germany from the European Court
of Human Rights (“ ECHR”)( 34 ) for the proposition
that defence counsel may be imposed on an accused. In that case the applicant
had appointed two counsel, but the Regional Court appointed a third; a course
to which he took objection. In holding that there had been no violation of
Article 6 (3) (c) of the European Convention on Human Rights, the ECHR said
that the right to be defended by counsel of one’s own choosing cannot be considered
to be absolute. The ECHR 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.”( 35 )
- It may, of course, be noted that Croissant v. Germany was not a
case concerned with an accused seeking to represent himself but with one where
the accused was objecting to additional counsel appointed by the court. To
that extent, it is distinguishable from the instant case. However, in a passage
on which the Prosecution relies, the ECHR also said: “The requirement that
a defendant be assisted by counsel at all stages of the Regional Court’s proceedings
[…] – which finds parallels in the legislation of other Contracting States
– cannot, in the Court’s opinion, be deemed incompatible with the Convention.”(
- On the other hand, it may be noted that the Human Rights Committee found
in Michael and Brian Hill v. Spain that the accused has a right to
defend himself pursuant to Article 14 (3) (d) of the ICCPR.(
37 ) In that case the Spanish courts had denied one of the appellant’s
the right to defend himself. The Committee noted that Spanish legislation
does not allow an accused person to defend himself, and, without further discussion,
concluded that the appellant’s right to defend himself had not been respected.(
38 ) The Prosecution seeks to distinguish this authority on the
grounds that the circumstances “were very special”, since the defendants,
who were foreign, “were treated very unfairly by the Spanish system.”(
- The Prosecution also seeks to qualify the right under Article 8 (2) (d)
of the ACHR by pointing out that this provision co-exists with legislation
in countries (which are signatories to the Convention) which requires an accused
to be represented in certain circumstances.( 40 )
Moreover , the Prosecution notes that the Inter-American Court of Human Rights
has allowed for legislation to limit an accused’s right to represent himself,
by stating that “[…] a defendant may defend himself personally, but it is
important to bear in mind that this would only be possible where permitted
under domestic law.”( 41 )
- Finally, the Prosecution submits that in light of the documentary history,
the correct interpretation of Article 67 (1) (d) of the ICC Statute is that
it places limits on the right of an accused to conduct his or her own defence.
According to the Prosecution, in circumstances where “the interests of justice
so require”, it was the intention of the drafters that counsel could be imposed
on an accused even if the accused wants to represent him or her self.(
- Having considered those submissions, the Trial Chamber concludes that the
international and regional conventions (in similar language) plainly articulate
a right to defend oneself in person. Whereas it is possible that some of these
conventions may allow for certain exceptions to the main principle that an
accused has a right to defend himself in person, it should be noted that the
only case on the issue decided under these conventions which the Trial Chamber
has been able to find, did not allow for such an exception: the above mentioned
Michael and Brian Hill v. Spain.( 43 )
- Despite the fact that the Human Rights Committee did not discuss its findings
in detail, this case must be seen as highly relevant to the correct interpretation
of Article 21 (4) (d) of the Statute, especially since this provision is identical
to Article 14 (3) (d) of the ICCPR. The ICCPR is an international convention
of widespread acceptance, with currently 146 State Parties. Further, it is
important to note that in the Secretary-General’s Report on the Statute, it
is stated that it is axiomatic that the International Tribunal must fully
respect the rights of the accused: “In the view of the Secretary-General,
such internationally recognized standards are, in particular, contained in
article 14 of the International Covenant on Civil and Political Rights.”(
44 ) In the Trial Chamber’s view, it is appropriate to be guided
by the ICCPR and the Human Rights Committee’s interpretation of it, which
confirms the right to self- defence and rejects the imposition of defence
counsel on an unwilling accused.
- There are also practical reasons in the instant case for not appointing
defence counsel to the Accused. If such counsel were appointed, the Trial
Chamber would have to take one of two courses: should the Accused (as, judging
by his submissions , is likely to be the case) refuse to instruct him or her,
the Trial Chamber could either: (a) not allow the Accused to make submissions
and question witnesses, thereby effectively preventing the Accused from putting
forward any defence; or, (b) it could allow him to make submissions and question
witnesses, in which case, the defence counsel could do no more than the Amici
- The Trial Chamber 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.( 45 )
In the words of the U.S. Supreme Court in Faretta, the Accused is “literate
, competent, and understanding, and [he is] voluntarily exercising his informed
free will.”( 46 ) He has been advised by the
Trial Chamber that it would be in his best interests to accept the assistance
of defence counsel, but, nonetheless, he is entitled to defend himself in
person .( 47 )
- However, the right to defend oneself in person is not absolute. Thus Rule
80 (B ) of the Rules provides that a “Trial Chamber may order the removal
of an accused from the courtroom and continue the proceedings in the absence
of the accused if the accused has persisted in disruptive conduct following
a warning that such conduct may warrant the removal of the accused from the
courtroom.” Clearly, an accused whose behaviour has resulted in his removal
from the courtroom pursuant to Rule 80 (B) of the Rules, has also relinquished
his right to defend himself in person . Furthermore, although Barayagwiza
and the present case can be distinguished (as correctly pointed out by
the Amici Curiae), there may be circumstances , as envisaged by Judge
Gunawardana, where it is in the interests of justice to appoint counsel. No
such circumstances have, as yet, arisen in this trial. However , as the Trial
Chamber has said, it will keep the position under review.
- Finally, with regard to the Prosecution’s submission that Article 20 (1)
of the Statute necessitates the imposition of defence counsel on the Accused
since this provision requires the Trial Chamber to ensure that “a trial is
fair and expeditious ”, the Trial Chamber notes the following. A Trial Chamber
has indeed an obligation to ensure that a trial is fair and expeditious; moreover,
where the health of the Accused is in issue, that obligation takes on special
significance. However, as the Article in question continues, the Trial Chamber
has an obligation to do so “with full respect for the rights of the accused”.
In other words, while ensuring that the trial is fair and expeditions, a Trial
Chamber must also ensure that the rights of the accused, as set out in Article
21 of the Statute, are not infringed .
For the foregoing reasons, this Trial Chamber,
FINDS that in the present circumstances, the Accused has the right
to defend himself in person, and therefore
DENIES the Prosecution’s Motion to impose Defence Counsel on the
Done in English and French, the English text being authoritative.
Dated this fourth day of April 2003
At The Hague
[Seal of the Tribunal]
1 - Written Note by the Accused,
3 July 2001, Case No. IT-99-37-I, Registry pages 3371-72; and Initial Appearance,
3 July 2001, Transcript pages (“T.”) 1-2.
2 - Status Conference, 30 August 2001, Case No. IT-99-37-PT,
T. 6-7. See further Order Inviting Designation of Amicus Curiae,
30 August 2001; and Order concerning Amici Curiae, 11 January 2002.
3 - Status Conference, 30 August 2001, Case No. IT-99-37-PT,
4 - Decision on Prosecution Interlocutory Appeal
from Refusal to Order Joinder, Case Nos. IT-99-37-AR73; IT-01-50-AR73; and IT-01-51-AR73.
Appeals Chamber, 1 February 2002. On 18 April 2002 the Appeals Chamber issued
its Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to
Order Joinder. The new case number for the three joined Indictments against
the Accused became IT-02-54.
5 - Hearing, 10 April 2002, T. 2797.
6 - Order, 16 April 2002. By this Order, the two
Legal Associates became bound by all existing Orders of the Trial Chamber, including
the Order for Protective Measures. Mr. Tomanovic’s power of attorney was filed
with the Registry on 16 April 2002 and Mr. Ognjanovic’s power of attorney was
filed on 22 April 2002.
7 - Brief on the Provision of Adequate Facilities
to Allow the Accused to Prepare his Defence, re-filed by the Amici Curiae
on 5 March 2002.
8 - Registry Report on Practical Facilities Available
to the Accused, 18 March 2002 (“Registry Report”).
9 - Oral Ruling by the Trial Chamber on 24 April
2002, T. 3737-40. With regard to the facilities at the United Nations Detention
Unit (“UNDU”) the Registry Report sets out that the Accused is entitled: to
receive and send uncensored mail and facsimile messages to his two Legal Associates
on weekdays; to unmonitored communication by telephone with his Legal Associates
during all days of the week; to receive scheduled visits of his two Legal Associates
during weekdays (with extended visiting hours on three weekday evenings); to
make use the photocopying facility of the UNDU; to review video evidence on
a VCR which has been installed and connected to the TV in the Accused’s cell
in the UNDU; to use his own lap-top computer in his cell in the UNDU, and if
he so wishes, to install a printer to it. The Registry Report also sets out
that while in court, the Accused is allowed to access a privileged phone line
from the cell where he is held during the trial breaks (“holding cell”). From
this telephone, the Accused can call his Legal Associates. With the assistance
of a Security Officer, the Accused is also able to send facsimiles to the Legal
Associates during the trial breaks. If urgently needed and with the assistance
of a Security Officer, the Accused can use the photocopying facilities during
these breaks. Finally, if required, the holding cell of the Accused can be equipped
with a TV/VCR set, which may, during trial breaks, be used to review video evidence.
See further Registry Report on Practical Facilities Available to the
Accused, 18 March 2002.
10 - Hearing, 11 November 2002, T. 12834-35.
11 - Oral ruling by the Trial Chamber on 18 December
2002, T. 14574.
12 - 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 (“Prosecution’s
Motion”), para. 4.
13 - Ibid., para. 5.
14 - Ibid., paras 13-15. The Prosecution
refers to the civil law systems of France, Belgium, Germany, Denmark, and the
Federal Republic of Yugoslavia.
15 - Ibid., para. 18, referring to Prosecutor
v. Barayagwiza, Case No. ICTR-97-19-T, Concurring and Separate Opinion
of Judge Gunawardana to the Decision on Defence Counsel Motion to Withdraw,
Trial Chamber I, International Criminal Tribunal for Rwanda (“ICTR”), 2 November
2002, p. 10. Further, during a hearing on 11 November 2002 concerning the future
conduct of the trial (and the effect of the proceedings on the health of the
Accused), the Prosecution referred to the McKenzie case, which, it
said, gave rise to the acceptance of using a so-called McKenzie-friend,
i.e. somebody to sit near the accused in court and give him advice. Hearing,
11 November 2002, T. 12839, referring to McKenzie v. McKenzie, Court
of Appeal, Civil Division,  P33,  3 All ER 1034,  3 WLR 472.
16 - Ibid., para. 20.
17 - Ibid., para. 21, omitted.
18 - Hearing, 11 November 2002, T. 12837.
19 - Ibid., T. 12840, referring to Faretta
v. California, 422 U.S. 806 (1975).
20 - Observations by the Amici Curiae on
the Imposition of Defence Counsel on Accused, 18 November 2002 (“Amici
Observations”), paras 7-11.
21 - Ibid., paras 12-14, referring to Prosecutor
v. Barayagwiza, Case No. ICTR-97-19-T, Decision on Defence Counsel Motion
to Withdraw, Trial Chamber I, ICTR, 2 November 2002, paras 6, 16.
22 - Ibid., para. 16, omitted.
23 - Ibid., para. 18, referring to the case
of Ernest Isaac Woodward (1948) Cr.App.R. 159. The Amici Curiae
also note that there are narrow statutory exceptions to this principle in the
Youth and Criminal Evidence Act of 1999. These provisions prohibit an accused
in person from cross-examining the victim of a rape with which he is charged.
The Amici Curiae also rely on Faretta v. California, 422 U.S.
806 (1975). Ibid., para. 19.
24 - Ibid..
25 - Ibid., para. 12.
26 - Faretta v. California, 422 U.S. 806
(1975), at 807. Faretta was charged with grand theft in the state of California.
27 - Ibid., at 817.
28 - Ibid., at 819, omitted. The relevant
part of the Sixth Amendment of the U.S. Constitution reads: In all criminal
prosecutions, the accused shall enjoy the right […] to be informed of the nature
and cause of the accusation; to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor, and to have
the assistance of counsel for his defense.
29 - Ibid., at 822-23, citing J Stephen,
A History of the Criminal Law of England (1883) 341-42.
30 - Ibid., at 823-24,
31 - Ibid., at 834.
32 - Article 63 (2) of the ICC Statute provides:
“If the accused, being present before the Court, continues to disrupt the trial,
the Trial Chamber may remove the accused and shall make provision for him or
her to observe the trial and instruct counsel from outside the courtroom, through
the use of communications technology, if required. Such measures shall be taken
only in exceptional circumstances after other reasonable alternatives have proven
inadequate, and only for such duration as is strictly required.”
33 - Hearing, 11 November 2002, T. 12834-35. The
Transcript states that the Accused referred to Article 68 (1) (d) of the ICC
Statute, but the context makes it obvious that the reference should be to Article
67 (1) (d) of the ICC Statute.
34 - Prosecution’s Motion, para. 16, referring to
Croissant v. Germany, European Court of Human Rights (“ECHR”), Case
No. 62/1001/314/385, Judgement, 25 September 1992 (“Croissant v. Germany”).
35 - Croissant v. Germany, para. 29. The
applicant was facing criminal proceedings in the Stuttgart Regional Court in
connection with his activities as lawyer of various members of the “Red Army
36 - Prosecution’s Motion, para. 16; Croissant
v. Germany, para. 27.
37 - Michael and Brian Hill v. Spain, Human
Rights Committee, Communication No. 526/1993, U.N. Doc. CCPR/C/59/D/526/1993,
2 April 1997.
38 - Ibid., para. 14.2.
39 - Prosecution’s Motion, para. 17, and 15. The
Prosecution notes that the defendants were without adequate interpretation facilities
during the preliminary hearing and did not get help to instruct their legal
aid lawyers, who did little to prepare the case. As a result, the defendants
largely prepared their own case. The defendants were convicted and sentenced
to six years’ imprisonment after a trial which lasted 40 minutes.
40 - Addendum to the Prosecution’s Response to the
Confidential Observations by the Amici Curiae on the Health of the
Accused and the Future Conduct of the Trial, filed confidentially on 20 November
2002 (“Prosecution’s Addendum”), paras 3-6. The Prosecution refers to legislation
in Costa Rica, Paraguay, Argentina, as well as to the Model Code of Criminal
Procedure for Latin America.
41 - Ibid., para. 7, referring to the Intern-American
Court of Human Rights, “Exceptions to the Exhaustion of Domestic Remedies (Articles
46 (1), 46 (2) (a) and 46 (2) (b) of the American Convention on Human Rights)”,
Advisory Opinion OC-11/90 of August 10, 1990, Inter-Am. Crt. H.R. (Ser. A) No.
42 - Ibid., paras. 9-12.
43 - The Trial Chamber does not accept the Prosecution’s
argument, above, to the effect that this case is distinguishable.
44 - Report of the Secretary-General (S/25704),
para 106. The Report was presented pursuant to paragraph 2 of Security Council
Resolution 808 (1993), and approved by Security Council Resolution 827 (1993).
45 - Initial Appearance, 3 July 2001, Case No. IT-99-37-1,
T. 1-2; Hearing, 11 November 2002, T. 12834-37.
46 - Faretta v. California, 422 U.S. 806
(1975), at p. 835.
47 - In Faretta the trial judge had warned
Faretta that he thought it was a mistake not to accept the assistance of counsel,
and that Faretta would be required to follow the “ground rules” of trial procedure.
Faretta v. California, 422 U.S. 806 (1975), at p. 835-36.