The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-T

“Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel”

4 April 2003
Trial Chamber III (Judges May [Presiding], Robinson and Kwon)

Procedural Background

· On 3 July 2001, the Accused informed the Trial Chamber in writing and during his initial appearance for the Kosovo indictment that he did not want to be represented by a lawyer for the purposes of the court proceedings.¹

· On 30 August 2001, during the first Status Conference, the Trial Chamber noted that the Accused was entitled to represent himself. In order to ensure him a fair trial and to ensure that his rights are fully respected, the Trial Chamber decided to invite the Registrar to appoint Amici Curiae to assist it in the proper determination of the case.² The Trial Chamber rejected the Prosecution’s suggestion that it should assign a Defence Counsel for the Accused, stating that in accordance with the Statute and the Rules of the International Tribunal “the Accused has a right to counsel, but he also has a right not to have counsel”.³

· On 1 February 2002, the Appeals Chamber joined the Kosovo indictment with the Croatia and Bosnia indictments.⁴ The trial on the three joined indictments against the Accused began on 12 February 2002.

· On 10 April 2002, during a hearing, the Accused identified Mr. Zdenko Tomanovic and Mr. Dragoslav Ognjanovic (both lawyers) as associates with whom he wished to communicate.⁵ On 16 April 2002, the Trial Chamber granted the Accused privileged communication with Mr. Tomanovic and Mr. Ognjanovic (as “Legal Associates”). It considered that it would be in the interest 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.⁶

· On 24 April 2003, 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 [were] being made to assist him”.⁷

· On 8 November 2002, the Prosecution filed a Motion entitled “Submission of the Office of the Prosecutor on the Future Conduct of the Case in the Light of the State of the Accused’s Health and Complexity of the Case” (“Prosecution’s Motion”) to propose that the Trial Chamber appoint Defence Counsel for the Accused. The Accused rejected the suggestion in court on 11 November 2002 (“Accused’s Submission”).⁸ On 18 November 2002, the Amici Curiae filed “Observations by the Amici Curiae on the Imposition of Defence Counsel on Accused (“Amici Observations ”). 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 Future Conduct of the Trial” which also concerns the issue of imposition of Defence Counsel on the Accused.

The Decision

On 18 December 2002, the Trial Chamber rejected the Prosecution’s Motion and stated 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”.⁹ The “Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel”, filed 4 April 2002, are summarised below.

The Submissions

The Prosecution’s submissions

The Prosecution stressed 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”.¹⁰ It submitted that there is no norm of customary international law prohibiting the imposition of Counsel on an accused who wants to represent himself. It submitted that the Statute allows a Chamber to impose Defence Counsel on an accused and relied inter alia on the opinion of Judge Gunawardana in the Barayagwiza case in which the assignment of Counsel was envisaged “where the interests of justice so require”.¹¹ In the Prosecution’s view, 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 interest of justice to assign legal Counsel”.¹² The Prosecution also submits that Article 20 of the Statute necessitates that the imposition of Defence Counsel on the Accused in order to ensure a fair and expeditious trial.¹³

The Accused’s submissions

On 11 November 2002, the Accused stated that by seeking to have Counsel imposed on him, the Prosecution is trying to deprive him from his right to speak in court . He refused the proposal of the Trial Chamber to have his Legal Associates sitting in court with him.¹⁴ Finally he relied on the judgment of the Supreme Court in Faretta v. California, dealt with by the Trial Chamber and summarised below.¹⁵

The amici curiae

The amici curiae relied on Article 21(4)(d) of the Statute, Article 6(3) of the European Convention on Human Rights¹⁶, and Article 14(3)(d) of the International Covenant on Civil and Political Rights (“ICCPR”)¹⁷, which provisions in their view explicitly protect the Accused’s right to defend himself in person. They stated that “[a]ny imposition of counsel upon the Accused against his wishes would constitute a breach of his guaranteed rights”.¹⁸

As regards the opinion of Judge Gunawardana, the amici curiae noted that Barayagwiza chose not to attend his trial and, crucially, that he did not assert his right to self-representation, whereas in the present case the Accused has consistently asserted his right to represent himself.¹⁹

They further pointed out that the examples of mandatory provision of Defence Counsel given by the Prosecution are drawn from inquisitorial systems, where the functions of Defence Counsels are very different from those in the adversarial form of trial adopted at the International Tribunal, the latter requesting the Defence Counsel to “put the case”²⁰ before the court . They submitted that therefore “[n]o meaningful trial would be possible if the advocate was not instructed by the Accused”.²¹

Finally the amici curiae submitted that in their opinion “the interests of justice do not require the assignment of Counsel, which would deprive the Accused of his right to conduct his own defence”.²²

The Reasoning

Interpretation of Article 21(4)(d) of the Statute

The Trial Chamber held that “a plain reading of [Article 21(4)(d)] indicates that there is a right to defend oneself in person”.²³ It considered that “[t]his interpretation is supported by the essentially adversarial nature of the proceedings at the International Tribunal […] 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”.²⁴ It agreed with the Amici Curiae that “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”.²⁵

Right to self-representation in common law systems

The Trial Chamber recalled that adversarial proceedings are part of the common law system and found the reasons for the common law rule in support of self-representation in the findings of the United States Supreme Court in Faretta v. California , according to which “forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so”.²⁶

It found that while it may be appropriate in civil law systems to appoint Defence Counsel for an accused who wishes to represent himself, as in such systems the court is “fulfilling a more investigative role in an attempt to establish the truth”, the imposition of Defence Counsel on a unwilling accused in an adversarial system would “effectively deprive that accused of putting forward a defence”. In adversarial systems “it is the responsibility of the parties to put forward the case and not for the court, whose function is to judge”.²⁷

Right to self-representation in international and regional conventions

The Trial Chamber considered the international and regional conventions expressly providing for the right to self-representation in criminal proceedings: Article 14(3)(d) of the ICCPR, Article 67(1)(d) of the Statute of the International Criminal Court (“ICC”)²⁸, Article 8(2) of the American Convention on Human Rights, and Article 6(3)(c) of the European Convention on Human Rights.²⁹

The Trial Chamber rejected the Prosecution’s submission that in Croissant v. Germany³⁰, the European Court of Human Rights (“ECHR”) interpreted Article 6(3)(c) of the European Convention as allowing a Counsel to be imposed on the Accused. It noted that this case was not concerned with an accused seeking to represent himself but with an accused who was objecting to additional counsel appointed by the court. It relied however on the interpretation of Article 14(3)(d) by the Human Rights Committee in Michael and Brian Hill v . Spain³¹, as a case “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”.³² In this case, the Spanish courts denied one of the appellants the right to defend himself. The Committee noted that the appellant’s right to self-representation had not been respected.³³

Right to self-representation and competence to defend oneself in person³⁴

The Trial Chamber held that it was satisfied that the Accused, who had “clearly and unequivocally” informed the Trial Chamber that he did not want to be represented by Defence Counsel, is “competent” to defend himself in person. It added that in 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”.³⁵ Further it mentioned that the Accused has been advised by the Trial Chamber that “it would be in his best interests to accept the assistance of Defence Counsel”.³⁶

Limits to the right to self-representation³⁷

The Trial Chamber found that “the right to defend oneself in person is not absolute ”. Indeed it held that “[c]learly, an accused whose behavior 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”. It further held that “there may be circumstances […] where it is in the interests of justice to appoint counsel”. It found that no circumstances have “as yet” arisen in this trial but underlined that it will “keep the position under review”.

Self-representation and the obligation to ensure a “fair and expeditious” trial

The Trial Chamber finally addressed the Prosecution’s submission that Article 20 of the Statute requires the imposition of Defence Counsel on the Accused in order to ensure a “fair and expeditious” trial. The Trial Chamber acknowledged that a Trial Chamber has to ensure that a trial is fair and expeditious, especially when the health of the Accused is at issue. However it made clear that, as stated in that same article, “while ensuring that the trial is fair and expeditious, a Trial Chamber must also ensure that the rights of the accused, as set out in Article 21 of the Statute, are not infringed”.³⁸

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1. Milosevic, IT-99-37-I, Written Note by the Accused, 3 July 2001, Registry pages 3371-72; and Initial Appearance, 3 July 2001, Transcript pages (“T.”) 1-2.
2. The Trial Chamber stressed that the role of the Amici 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. Status Conference, 30 August 2001, Milosevic, IT-99-37-PT, T. 6-7. See also Order Inviting Designation of Amicus Curiae, 30 August 2001, Judicial Supplement No. 26; and Order Concerning Amicus Curiae, 11 January 2002.
3. Status Conference, 30 August 2001, Milosevic, IT-99-37-PT, T. 15-18.
4. Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, IT-99-37-AR73, IT-01-50-AR73 and IT-01-51-AR73, 1 February 2002. On 18 April 2002, the Appeals Chamber issued its Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, Judicial Supplement No. 32. The new case number for the three joined Indictments against the Accused is IT-02-54.
5. Hearing, 10 April 2002, T. 2797.
6. Order, 16 April 2002.
7. Oral Ruling by the Trial Chamber on 24 April 2002, T. 3737-40. The Trial Chamber relied on a Brief of the Amici Curiae (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) and on a Registry Report (Registry Report on Practical Facilities Available to the Accused, 18 March 2002). 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 have unmonitored communication by telephone with his Legal Associates every day 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 access to a privileged phone line from the cell where he is held during the trial breaks (“holding cell”) which he can useto 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.
8. Hearing, 11 November 2002, T. 12835-35.
9. Oral Ruling of the Trial Chamber, 18 December 2002, T. 14574.
10. Prosecution’s Motion, para. 5.
11. Barayagwiza, ICTR-97-19-T, Concurring and Separate Opinion of Judge Gunawardana to the Decision on Defence Counsel Motion to Withdraw, 2 November 2000, p.10.
12. Prosecution’s Motion, para. 15.
13. Ibid., para. 20.
14. Hearing, 11 November 2002, T. 12837.
15. Ibid., T. 12840, referring to Faretta v. California, 422 U.S. 806 (1975).
16. 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 […](emphasis added).
17. Article 14 (3) (d) of the 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; [...] (emphasis added).
18. Amici Observations, paras. 7-11.
19. Ibid., paras. 12-14.
20. The Trial Chamber defined the obligation in the proceedings of the Tribunal of “putting a case” as “putting forward the Defence version of events if it differs from that put forward by a witness”, which obligation is “reflected in Rule 90(H) of the Rules” (para. 25).
21. Ibid., para. 19. For further developments on the nature of the proceedings before the International Tribunal, see infra.
22. Ibid., para. 12.
23. Para. 18.
24. Para. 19.
25. Para. 21.
26. Faretta v. California, 422 U.S. 806 (1975) at 807.
27. Para. 24.
28. The Trial Chamber noted that the right to self-representation under Article 67(1)(d) of the ICC Statute is subject to Article 63(2) which deals with disruptive conduct by the Accused in the courtroom and 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”.
29. A the 11 November 2002 hearing, the Accused relied on the provisions of these conventions (T. 12835-35).
30. Croissant v. Germany, European Court of Human Rights, Case No. 62/1001/314/385, Judgment, 25 September 1992.
31. 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.
32. Para. 37.
33. The Trial Chamber noted that the Secretary General in his report on the Statute (Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, 3 May 1993, S/25704) stated that “the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at all stages of its proceedings. 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”.
34. Para. 39.
35. Faretta v. California, 422 U.S. 806 (1975) at 835.
36. The conditions for an accused to be entitled to ensure his own defence seem to be that he has “clearly and unequivocally” expressed his wish to do so, and is “literate, competent, and understanding”. Nevertheless the Trial Chamber has not expressly set forth any criterion.
37. Para. 40.
38. Para. 41.