Case No.: IT-02-54-T


Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Mr. Hans Holthuis

Decision of:
10 September 2004







The Office of the Prosecutor

Ms. Carla Del Ponte
Mr. Geoffrey Nice
Ms. Hildegard Uertz-Retzlaff
Mr. Dermot Groome

The Accused

Mr. Slobodan Milosevic

Court Assigned Counsel

Mr. Steven Kay, QC
Ms. Gillian Higgins

Amicus Curiae

Prof. Timothy L.H. McCormack


THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal"),

BEING SEISED OF a "Request for a Certificate Pursuant to Rule 73 (B) to Appeal Against the Trial Chamber Order Concerning the Representation of the Accused Dated 2 September 2004", filed on 8 September 2004 ("Request"), in which the court assigned counsel request, pursuant to Rule 73 (B) of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), that the Trial Chamber certify an interlocutory appeal from oral decision by the Trial Chamber of 2 September 2004, in which it assigned counsel to the Accused, determining that it was both competent and in the interests of justice to do so,

NOTING the oral decision of the Trial Chamber from which the court assigned counsel now seek certification:

This is the ruling on assignment of Defence counsel, and I should say that a fuller written decision will be issued shortly.

In its reasons for its decision on the Prosecution motion concerning assignment of Defence counsel of 4 April 2003, the Trial Chamber, while holding that the accused had a right to defend himself also held in paragraph 40 that the right to defend oneself in person is not absolute and that it would keep the position under review, also in paragraph 40. The health of the accused has been a major problem in the progress of the trial. In the Prosecution's case the trial was interrupted over a dozen times on account of the ill health of the accused, thereby losing some 66 trial days.

The Defence case that was scheduled to start on 8th June was postponed on five occasions, again on account of the ill health of the accused. The Trial Chamber requested Dr. Van Dijkman, who has been treating the accused for cardiological problems for some time, and Professor Tavernier from Belgium, who was identified by the registrar as a cardiologist with no prior involvement in the treatment of the accused, to examine the accused and consider all relevant information pertaining to his health in the context that he represents himself, and report to the Trial Chamber on the fitness of the accused to continue to represent himself and the likely impact on the trial schedule should he continue to do so. Both doctors reported that the accused suffers from severe essential hypertension and that his condition was such that a hypertensive emergency, a potentially life-threatening condition could develop. They also found that one explanation for his medical condition was his failure to adhere to the proposed therapeutic plan.

Blood tests carried out on the accused confirmed this conclusion. It is plain from the medical reports that the accused is not fit enough to defend himself and that should he continue to represent himself, there will be further delays in the progress of the trial.

The issue before the Chamber is whether the right of an accused set out in Article 21 of the Statute to defend himself in person is subject to qualification, and if it is, whether in the circumstances of this case that right should be qualified by assigning counsel to represent the accused.

The Chamber is satisfied on the basis of the Tribunal's Statute and the jurisprudence, as well as the law of many domestic jurisdictions that the right of an accused person to represent himself is not unfettered, and in the circumstances of this case, it is both competent to assign counsel to the accused and in the interests of justice to do so. We shall, therefore, do so.

The fundamental duty of the Trial Chamber is to ensure that the trial is fair and expeditious. The concern of the Chamber is that, based on the medical reports, there is a real danger that this trial might either last for an unreasonably long time or, worse yet, might not be concluded should the accused continue to represent himself without the assistance of counsel. On the other hand, the Chamber is satisfied that if counsel is assigned to the accused, measures can be devised to ensure that the trial continues in a manner that is both fair and expeditious.

Having decided to assign counsel to the accused, it will be the duty of the Chamber to ensure that the role of assigned counsel is so fashioned that the trial process, while being expeditious, will protect the fundamental right of the accused to a fair trial.

That's the ruling, and as I said before, a fuller written decision will be issued shortly.

NOTING the Decision of the Deputy Registrar, issued on 3 September 2004, assigning Mr. Steven Kay as lead counsel for the Accused and Ms. Gillian Higgins as co-counsel for the Accused,

HAVING CONSIDERED the submissions of the court assigned counsel set out in the Request, which consist of reference to the Accusedís oral submissions and the written and oral submissions of the (then) Amici Curiae, and asserting that the test under Rule 73 (B) is met,

NOTING that Rule 73 (B) requires two criteria to be satisfied before the Trial Chamber can exercise its discretion to certify a decision for interlocutory appeal: (1) that the issue would significantly affect the fair and expeditious conduct of the proceedings or outcome of the trial, and (2) an immediate resolution of the issue may, in the opinion of the Trial Chamber, materially advance the proceedings,1

CONSIDERING that the Trial Chamber accepts the submission of the court assigned counsel in the Request that it is appropriate for them to request the Trial Chamber to grant certification under Rule 73 (B) and noting that, at the time the decision was made, the Accused both opposed the decision and expressed his desire to appeal the ruling,

CONSIDERING that the Trial Chamber is satisfied that the cumulative requirements under Rule 73 (B) have been satisfied, in that the decision of the Chamber to assign counsel affects fundamentally the conduct of the trial and as such it would be best to have it resolved by the Appeals Chamber at this stage, rather than after the conclusion of the trial,

PURSUANT TO Rule 73(B) of the Rules of Procedure and Evidence of the International Tribunal



Done in English and French, the English text being authoritative.

Judge Robinson

Dated this tenth day of September 2004
At The Hague
The Netherlands

[Seal of the Tribunal]

1. See Prosecutor v. Brdjanin and Talic, "Decision on Radislav Brdjaninís Motion for the Issuance of Rule 73(B) Certification Regarding the Chamberís Rule 70 Confidential Decision", 23 May 2002, in which it is stated that these two conditions are cumulative and constitute an exception to the principle that decisions on all motions are without interlocutory appeal. This has been previously adopted by the Trial Chamber in these proceedings.