Registry and Chambers:
Martin Petrov, Chief of the Office of the Registrar, made the following statement:
I will first highlight two court filings.
Last Monday, the Tribunal’s President, Judge Patrick Robinson, denied Momčilo Krajišnik’s motion for early release. Krajišnik, one of the highest ranking war-time members of the Bosnian Serb leadership, was transferred on 7 September 2009 to the United Kingdom to serve his 20-year sentence for crimes committed against non-Serb civilians during the conflict in Bosnia and Herzegovina. In denying his request, the President noted that, while Krajišnik had displayed “some – albeit very limited” evidence of rehabilitation, the very high gravity of crimes and the fact that Krajišnik has only recently completed serving half of his sentence were two significant factors weighing against his request. The President reiterated that the practice of the Tribunal is to consider the eligibility of a convicted person for early release only after he has served two-thirds of his sentence. Krajišnik will have served two-thirds of his sentence in August 2013.
In a submission filed on 11 July 2011, the Registrar of the Tribunal responded to claims made by Vojislav Šešelj during his initial appearance in his third contempt of court case last Wednesday, that persons assisting him with his defence could not attend the hearing as the Registry had refused to cover their travel costs. In his submission, the Registrar pointed out that only accused who have been declared indigent or partially indigent, are entitled to public funding for their defence. The Registrar noted that the Decision on the financing of Šešelj’s Defence, according to which the Registry was to provide Šešelj’s Defence 50% of the resources usually allocated to a totally indigent accused, pertains to different proceedings – the main case against Šešelj. Moreover, that decision was not based on a finding of indigence, but rather on considerations related to the fairness and expeditiousness of Šešelj’s main trial. As such, that case-specific decision does not provide a legal basis for disbursing public funds in the third contempt of court case against Šešelj in view of the fact that the Accused has not been found indigent.
Turning now to the courtroom schedule:
At the Status Conference in the appeals case of Milan and Sredoje Lukić held last Friday, Judge Mehmet Güney ordered that the appeal hearing take place on Wednesday, 14 September 2011 and Thursday, 15 September 2011. Milan Lukić was sentenced to life and Sredoje Lukić to 30 years’ imprisonment in July 2009 for crimes against humanity and war crimes committed in the eastern Bosnian town of Višegrad.
Hearings in the cases of Radovan Karadžić, Mićo Stanišić and Stojan Župljanin, Jovića Stanišić and Franko Simatović as well as Zdravko Tolimir continue this week and next as scheduled.
In the Karadžić case, the Trial Chamber is currently hearing the testimony of expert witness Christian Nielsen, who is testifying about the Republika Srpska Ministry of Interior, its structure and internal functioning.
In the trial of Jovića Stanišić and Franko Simatović, the Chamber is currently hearing the testimony of Defence witness Mile Bosnić, who is a political scientist and former Assembly member and Minister in the Government of the self-proclaimed Republic of Serbian Krajina.
In the Tolimir case, expert witness Richard Butler, a former military analyst in the Office of the Prosecutor of the ICTY, is currently testifying.
This afternoon, the testimony of Defence witness Goran Mačar, who has been testifying since Tuesday 5 July, will resume in the Stanišić and Župljanin case.
To conclude, I would like to bring to your attention the newly established International Criminal Justice Day, which will be celebrated every year on 17 July, the day of the adoption of the Rome Statute of the International Criminal Court. The Tribunal will join the ICC in celebrating that day this coming Sunday. The media office will issue a Press Release to that effect towards the end of the week to provide journalists and members of the public with further details on the Tribunal’s contributions to the commemoration.
Office of the Prosecutor:
Frederick Swinnen, Special Adviser to the Prosecutor, made no statement.
Asked whether there were any developments in the appointment of defence counsel for Ratko Mladić, Martin Petrov responded that, as announced last week already, meetings were scheduled this week with the two preferred counsel, who Mladić had requested to see. Petrov confirmed that those meetings took place this week and that further meetings are scheduled for the remainder of the week. From that point of view, progress is being made and the two lawyers provided the necessary documents to enable the Registrar to consider their admission to the list of counsel and possible assignment. Petrov added that this analysis is ongoing, however, as previously announced, Mr Saljic, who is Mladić’s Belgrade lawyer, does not meet at least one of the qualification requirements, that is fluency in English or French, and as such he is not eligible for assignment as Lead Counsel. Petrov said that it is his understanding that Mladić insists on Mr Saljic being assigned as Lead Counsel, which would not be possible under the Tribunal’s Rules.
Asked when the final decision could be expected to be rendered, Petrov answered that it was likely that in the course of this week, the Registry would have a final determination as to the eligibility of the two lawyers for assignment. Petrov said that Mladić is not making the assignment of counsel decision easy by insisting on a lawyer who does not meet all qualification requirements.
Asked whether Mr Mezyaev passed an English test, Petrov responded that he is taking the test today and that the results should be available within the next two-three days, which will enable the Registry to decide on his admission to the Rule 45 list of qualified lawyers. Petrov added that there is a very strong indication that Mr Mezayev, even if he were to meet all the qualification requirements, would not seek assignment as Lead Counsel.
Asked whether there were any news regarding Mladić’s health condition and his fitness to stand trial, Petrov responded that Mladić’s health situation has not changed in any significant way since his admission to the Detention Unit. As reported previously, his health is regularly monitored and appropriate treatment has been prescribed, and there is nothing significant regarding his health status to be reported at present, but reiterated that the health status of the Accused is not an issue he can discuss publicly. Petrov added that he was not aware of anyone having requested an assessment of Mladić’s fitness to stand trial and that this matter was not before the Trial Chamber at present. There is therefore no indication at present that Mladić is not fit to stand trial.
The journalist commented that it was Mladić himself who during his initial appearance had raised the issue of his health and asked who else, besides the Accused himself, could raise the question of his fitness to stand trial and whether either Mr Saljic or Mr Mezayev could do so. Petrov responded that neither Mr Saljic nor Mr Mezayev raised the question and that in any event they would not have standing to do so at this point, because they have not been admitted as Counsel. Petrov explained that the issue of an accused’s fitness to stand trial is one that requires a judicial determination and it can only be decided upon by the Trial Chamber seized of the case. To date, no such motion has been filed before the Trial Chamber. Mladić has indeed raised issues pertaining to his health. Petrov pointed out that, at the Further Initial Appearance of Mladić, Presiding Judge Orie made it very clear that the Chamber would be interested in discussing his health with Mladić, but Mladić has not provided his consent for his medical information to be released to the Chamber. In other words, if there are health issues that Mladić wishes to raise with the Court, obviously he needs to allow the Court to see the medical information before it can rule on it. Petrov reiterated that the issue of fitness to stand trial is a separate matter, which involves a formal judicial process and such process has not been initiated before the Trial Chamber.
Asked what the next step will be, once the Tribunal determines that Mr Saljic does not speak English and Mr Mezayev does not want to be a Lead Counsel, and whether Mladić will have to apply for new counsel, Petrov reiterated that there have been extensive consultations between Registry representatives and Mladić over the past six weeks on the issue of his legal representation. Petrov said that he had no doubt that Mladić understood the Tribunal’s Rules well and that he knew that if he requested legal aid, i.e. Tribunal assigned and paid counsel, he needed to comply with the rules of the Tribunal regarding the qualification of the lawyers. Petrov said that Mladić would have to select a counsel that meets all the qualification requirements. Petrov further explained that the ICTY, as an international tribunal, does not function in the context of any one national legal system. Unlike national legal systems, there is no international bar association that licenses defence attorneys to practice before the Tribunal. The rules of the Tribunal, the Directive on the Assignment of Counsel, the Code of Conduct for Defence Counsel, constitute the legal framework that governs the appointment of Defence Counsel before the ICTY. Petrov explained that this is why there is a certain minimum of qualifications that the Tribunal requires. These qualification requirements come from the rules, which are adopted by the judges in plenary. These rules provide a certain minimum guarantee for the rights of the accused. Whether or not a lawyer can be admitted to represent an accused before the Tribunal is therefore not a discretionary decision of the Registrar.
Asked whether Mladić would have to apply again for a lawyer if his current request is denied, Petrov replied that Mladić would have to provide another name of a lawyer who is fully qualified to be assigned.
Asked whether the Registry would be ready to appoint either Mr Saljic or Mr Mezayev as legal advisors, Petrov responded that at present, he did not see any specific reasons as to why this could not happen. Petrov explained, however, that under the rules, once appointed, it is the Lead Counsel who makes the request for the appointment of Co-Counsel and other members of the defence team, such as legal advisors, legal assistants, investigators etc. Petrov added that he had all reasons to believe that, in consultation with Mladić, whoever might be appointed as Lead Counsel would probably select Mr Saljic, Mr Mezayev and others as members of the defence team.
Asked whether Petrov thinks that Mladić is deliberately throwing up hurdles to the case considering his insistence on having an unqualified lawyer appointed, Petrov stated that it is unfortunate that six weeks after consultations with the Accused started, he is still insisting on a lawyer who does not meet all the qualifications for assignment. Petrov added, however, that the point has not been reached where he would be prepared to say that Mladić is deliberately obstructing the process. On the contrary, the Registry is continuing to work with the Accused and further meetings have been scheduled and will take place this week. Petrov added that he seriously hopes that this issue will be resolved soon.
Asked whether the decision on appointment of counsel would be public, Petrov responded that when the Registrar appoints counsel – whether under the legal aid system or privately retained by the accused - he issues a public decision that is made available externally.
Asked whether, in the context that the appointment is refused, that decision would be made public, Petrov clarified that by the end of the week, the Registry will most likely have a position on the eligibility of the two lawyers for assignment. That position will be communicated to Mladić. The assignment of counsel to an accused is a consultative process and the Registry is still engaged in that process. A decision denying somebody’s assignment is not always public, because usually when a lawyer is deemed unqualified for assignment, the accused is invited to select another counsel and when they do, a public decision is rendered assigning that other counsel. Should this ever become an issue, however, the decision could be made publicly.
Asked whether there were any deadlines for Mladić to apply for a new counsel, Petrov explained that there would not be any deadlines as Mladić has already applied for legal aid and as part of that process, he requested the assignment of counsel. Until the Registry is able to appoint counsel, that application will still be pending. Petrov reiterated that that process is not being helped by Mladić’s insistence on a specific lawyer being appointed as Lead Counsel, given that he knows full well that that lawyer does not fulfill all the requirements.
Asked whether if Mladić was paying for his own defence, Mr Saljic would still be not considered to be eligible as Lead Counsel, Petrov said that these were indeed the rules. Petrov added, however, that under the Tribunal’s Rules, the qualification requirements for Counsel privately retained by an accused, are somewhat less stringent than those for Tribunal-assigned counsel. The reason is that when the Tribunal provides counsel and the Tribunal remunerates that counsel, the Registry needs to ensure a certain minimum level of qualifications. Under Rule 44 of the Rules of Procedure and Evidence, an exception could be made for a privately retained counsel who does not speak English or French. There is a certain “interest of justice” test would need to be applied and certain conditions may apply, to enable the Registrar to waive the language requirement. This is one of the very few requirements that could actually be waived for a privately retained counsel but the Registry is not considering this scenario at present, as Mladić has made a request for legal aid.
Asked why Serbo-Croat was not an official language of the Tribunal and why counsel need to speak English or French, Petrov explained that the proceedings in the courtroom take place in at least three languages simultaneously and the accused, and sometimes their counsel, have the benefit of interpretation into their respective language in the courtroom. However, the official languages of the Tribunal are English and French. These are the languages in which the proceedings take place. These are the languages all Tribunal staff members and Judges are required to speak, and the same applies to Defence Counsel. Petrov pointed out to the enormity of the cases and the fact that all documents used in the proceedings are in either English or French. Having to translate all court filings into a third language would create unreasonable delays.
Asked whether Mladić amended his application by adding new names or otherwise, Petrov responded that he has not submitted any new names.
Asked whether all seven names were still being considered, Petrov recalled that Mladić had initially submitted a list of seven counsel and requested to meet all of them. At his further initial appearance, he stated that he only wanted to see two of them, but he has not formally withdrawn that list.
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