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Appeals Chamber Renders Decision on the Assignment of Defence Counsel in the Milošević Trial

Press Release
(Exclusively for the use of the media. Not an official document)


The Hague, 1 November 2004
CT/ P.I.S./906-e


Appeals Chamber Renders Decision on the Assignment of Defence Counsel in the Milošević Trial


•    Appeals Chamber affirms imposition of defence counsel
•    Appeals Chamber reverses Order on Modalities
•    Milo{evi} to take lead in presenting his case
•    Assigned counsel to enable trial to continue if Milo{evi} is unable to participate due to ill-health

Today, 1 November 2004, the Appeals Chamber consisting of Judges Meron (presiding), Pocar, Mumba, Güney and Weinberg de Roca issued its “Decision On Interlocutory Appeal Of The Trial Chamber’s Decision On The Assignment Of Defence Counsel.” The Interlocutory Appeal was filed on 29 September 2004, following the Trial Chamber’s ruling, at a hearing on 2 September 2004 that defence counsel would be assigned to Mr. Milo{evi}.

The Disposition of the Appeals Chamber Decision reads as follows:

In light of the foregoing discussion, the Appeals Chamber affirms the Trial Chamber’s imposition of defense counsel, but reverses its Order on Modalities.  On remand, the Trial Chamber should craft a working regime that minimizes the practical impact of the formal assignment of counsel, except to the extent required by the interests of justice.  At a minimum, this regime must be rooted in the default presumption that, when he is physically capable of doing so, Milošević will take the lead in presenting his case – choosing which witnesses to present, questioning those witnesses before Assigned Counsel has an opportunity to do so, arguing any proper motions he desires to present to the court, giving a closing statement when the defense rests, and making the basic strategic decisions about the presentation of his defense.  But this presumption is just that:  a presumption.  Under the current circumstances, where Milošević is sufficiently well to present a vigorous, two-day opening statement, it was an abuse of discretion to curtail his participation in the trial so dramatically on the grounds of poor health.  The Appeals Chamber can hardly anticipate, however, the myriad health-related difficulties that may arise in the future, or use this occasion to calibrate an appropriate set of responses to every possible eventuality.  It is therefore left to the wise discretion of the Trial Chamber to steer a careful course between allowing Milošević to exercise his fundamental right of self-representation and safeguarding the Tribunal’s basic interest in a reasonably expeditious resolution of the cases before it.

The Appeals Chamber stresses the following point:  in practice, if all goes well, the trial should continue much as it did when Milošević was healthy.  To a lay observer, who will see Milošević playing the principal courtroom role at the hearings, the difference may well be imperceptible.  If Milošević’s health problems resurface with sufficient gravity, however, the presence of Assigned Counsel will enable the trial to continue even if Milošević is temporarily unable to participate.  The precise point at which that reshuffling of trial roles should occur will be up to the Trial Chamber.

The decision below is affirmed in part and reversed in part, and the case is remanded for further proceedings not inconsistent with this decision.  The Trial Chamber may grant orders to enhance the proceedings as and when necessary.

International Criminal Tribunal for the former Yugoslavia

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