The Prosecutor v. Vojislav Seselj - Case No. IT-03-67-PT

“Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Seselj with his Defence”

9 May 2003
Trial Chamber II (Judges Schomburg [Presiding], Mumba and Agius)

Procedural Background

· On 25 February 2003, the day after his surrender to the Tribunal¹, Vojislav Seselj (“the Accused”) notified the Registrar his will to conduct his own Defence.

· On 26 February 2003 at his initial appearance, the Accused made clear that his intention to defend himself was definite. He referred to the possibility that he would engage an assistant and a legal advisor but emphasised that they would never appear in court.

· On 28 February 2003, the Prosecution filed the “Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Seselj with his Defence (“Prosecution’s Motion”). On 20 March 2003, the Accused filed his response to the Prosecution’s Motion (“Accused’s Response”).

· On 25 March 2003 at his further appearance, the Accused was reminded of his right to counsel, in which respect he stated that “nothing will change […] until the end of the trial”.²

The Decision

Pursuant to Rule 54 of the Rules³, the Trial Chamber rejected the Prosecution’s Motion insofar as it seeks an Order from the Trial Chamber “directing the Registrar to appoint legal counsel to assist the accused Seselj with the preparation and conduct of his defence” without any limitation. It decided to assign a standby Counsel to the Accused, fluent both in Bosnian/Croatian/Serbian (“BCS”) and in one of the official languages of the Tribunal , and requested the Registrar to assign one from the Rule 45(B) list.

The Submissions

The Prosecution submitted that the interests of justice require that legal counsel be appointed to assist the Accused with his defence, due to the complexity of the case, the Accused’s express intention to cause harm to the Tribunal and to use the proceedings as a forum for Serb national interests, the consequent possibility of a disorderly trial, the necessity to safeguard the administration of justice, and the public interest in the restoration of peace in the former Yugoslavia. The Prosecution argued that the circumstances of its present request are different from its request in the Milosevic case, the latter being concerned with Milosevic’s health, the former being concerned with the “disruptive, obstructionist or scandalous ”⁴ conduct of Seselj and his remarks to the effect that he intends to use the Tribunal as a political stage and source of media attention.⁵ It submitted that there might be some limited scope for the Accused to participate directly in the proceedings with the leave of the Trial Chamber so long as he does not interfere with the normal conduct of the proceedings.

The Accused refuted the legal relevance of the arguments of the Prosecution pertaining to his “well-known political attitude”⁶ towards the Tribunal. He emphasised that his decision to conduct his own defence is “final and irrevocable”⁷ and that he would never accept any defence counsel assigned by the Tribunal against his will . He submitted that the legal practice of the Tribunal, notably in the Milosevic case, support his position that “[s]uch practice cannot be changed from case to case”.⁸ He further argued that Article 21 of the Statute, criminal law doctrine, and international and national law guarantee the right to conduct his own defence.

The Reasoning

Applicable law

The ad hoc Tribunals

The Trial Chamber referred to Articles 20 of the Statute, which inter alia provides that the Trial Chambers shall ensure that a trial is fair and expeditious , with full respect for the rights of the accused, including the right for an accused to defend himself in person, as embodied in Article 21(4)(d). It also referred to Article 20(4)(d) of the Statute of the International Criminal Tribunal for Rwanda (“ICTR”), a provision similar to Article 21(4)(d) of the ICTY Statute, and to Rule 45 quater of the ICTR Rules of Procedure and Evidence (“Assignment of Counsel in the Interests of Justice”) which states: “The Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused”.

The Trial Chamber held that “[t]he wording of Article 21 of this Tribunal’s Statute does not on its face exclude the possibility of offering an accused the assistance of assigned counsel where the interests of justice so require. The need may arise for unforeseeable reasons to protect an accused’s interests and to ensure a fair and expeditious trial”.⁹ The Trial Chamber referred to the Milosevic Decision, in which Trial Chamber III recognised a right to defend oneself in person under Article 21(4) of the Statute and held that this right is not absolute, that there may be circumstances where it is in the interests of justice to appoint counsel, and that 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.¹⁰ It found that the Trial Chamber’s reasoning in the aforementioned decision had left avenues open and noted, moreover, that three amici curiae had been appointed to assist the court¹¹ as well as two legal associates appointed “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 protected materials”.¹²

The Trial Chamber also referred to the dissenting opinion of Judge Gunawardana in the Barayagwiza case, in which he considered Article 20(4)(d) of the ICTR Statute as “an enabling provision for the appointment of a ‘standby counsel’”.¹³

The common law system

The Trial Chamber first referred to the case law of the United Stated and other common law jurisdictions, and inter alia to the case of Faretta v. California , in which the United States Supreme Court held that forcing a lawyer upon a defendant who is literate, competent and understanding and who voluntarily exercises his informed free will by waiving his right to the assistance of counsel would be a breach of the accused’s constitutional right to conduct his own defence but also that self-representation by a defendant who deliberately engages in serious misconduct may be terminated.¹⁴ It then referred to case of McKaskle v. Wiggins, whereby the Supreme Court appointed a standby counsel to the Accused so as to ensure him a fair chance to present his case.¹⁵ It also referred to Judge Reinhardt’s comment in the case of Farhad v. United States. Judge Reinhard stated that neither the right to counsel nor the right to self-representation is an absolute right¹⁶, argued that permitting self-representation regardless of the consequences threatens to divert criminal trials from their clearly defined purpose of providing a fair and reliable determination of guilt or innocence¹⁷, and that a defendant could not waive his right to a fair trial, a right that implicates not only the interests of the accused but also the institutional interests of the judicial system.

The civil law system

The Trial Chamber noted that it is common practice in civil law systems to assign counsel mandatorily, especially in serious cases. It supported its finding by referring to Articles 274 and 317 of the French Code de Procédure Pénale, Article 294 of the Belgian Code d’instruction criminelle, Section 140 of the German Code of Criminal Procedure, and Section 731 of the Danish Administration of Justice Acts . Finally it referred to the Criminal Procedure Act of the Federal Republic of Yugoslavia as “the most relevant example”.¹⁸ Pursuant to its Article 71, an accused facing a criminal sentence of 10 years or more must have a defence counsel, even if he has the requisite legal qualifications.

Human rights norms

The Trial Chamber noted that human rights norms guarantee “both a right to self -representation and a right to legal assistance in similar terms to Article 21(4)(d) of the Statute”.¹⁹ It first referred to the case of Michael and Brian Hills v. Spain( footnote 20 ), whereby the Human Rights Committee found that the Accused had the right to defend himself pursuant to Article 14(3)(d) of the International Covenant on Civil and Political Rights (“ICCPR”).²¹ It noted , however, that this decision did not address the question of mandatory defence counsel in detail, and doubted that it can be understood to imply that any rule requiring the assignment of defence counsel in the procedural codes of civil law systems is incompatible with the ICCPR. The Trial Chamber then referred to the case of Croissant v. Germany( footnote 22 ), whereby the European Court of Human Rights found that the will of a court to ensure that the trial proceeds without interruption or adjournments is a relevant interest of justice that may well justified an appointment against the accused’s wishes.²³

Appointment of Counsel in the interests of justice

The scope of the phrase “in the interests of justice”

The Trial Chamber found that “the right to self-representation is not absolute” and that “Article 21 of the Statute, and the jurisprudence of this Tribunal and the Rwanda Tribunal, leave open the possibility of assigning counsel to an accused on a case by case basis in the interests of justice”.²⁴ It then held that “[t]he phrase ‘in the interests of justice’ potentially has a broad scope [and] includes the right to a fair trial, which is not only a fundamental right of the Accused, but also a fundamental interest of the Tribunal related to its own legitimacy. In the context of the right to a fair trial, the length of the case, its size and complexity need to be taken into account”.²⁵

The complexity of the case

The Trial Chamber found that “[t]he complex legal, evidential and procedural issues that arise in a case of this magnitude may fall outside the competence even of a legally qualified accused, especially where that accused is in detention without access to all the facilities he may need”.²⁶ Moreover, it held that “the Tribunal has a legitimate interest in ensuring that the trial proceeds in a timely manner without interruptions, adjournments or disruptions”.²⁷

The conduct of the Accused

The Trial Chamber found that although the Accused expressly stated that he will use “legal arguments and hard facts”²⁸ to “defeat”²⁹ the Tribunal and that it would be premature to make any assessment as to his possible intention to harm or “destroy”³⁰ the Tribunal, “good cause for concern has been shown following his declared intention to attempt to use the Tribunal as a vehicle for the furtherance of his political beliefs and aspirations ”.³¹ It held that “[i]f this tactic were resorted to, it would not only result in an abuse of the valuable judicial resources of the Tribunal but also hinder an expeditious trial”.³² Indeed it found that the Accused is “increasingly demonstrating a tendency to act in an obstructionist fashion while at the same time revealing a need for legal assistance”.³³

Based on the obstructionist conduct of the Accused, the Trial Chamber expressed its view that “at this stage of the proceedings, the best way to preserve the rights of the Accused while at the same time satisfying the interests of justice is to assign a “standby counsel” fulfilling the requirements of Rule 44(A)”.³⁴

The definition of “standby counsel”

The Trial Chamber emphasised that the assignment of a standby counsel does not infringe on the right of the Accused to defend himself. It held that “standby counsel is not an amicus curiae but an assistant operating in the sphere of the Accused only, who will serve to safeguard a fair and expeditious trial. Counsel-client privilege applies to any correspondence and communication between the Accused and standby counsel. Standby counsel is bound in the same way as any other counsel working with the Tribunal by the obligations protecting the interests of an accused”.³⁵ Further it clarified that “[t]he right to self-representation and the appointment of standby counsel do not exclude the right of the Accused to obtain legal advice from counsel of his own choosing ”.³⁶

The role of standby counsel

For the purposes of these proceedings, the Trial Chamber defined the role of standby counsel as follows:

- “to assist the Accused in the preparation of his case during the pre-trial phase whenever so requested by the Accused;
- to assist the Accused in the preparation and presentation of his case at trial whenever so requested by the Accused;
- to receive copies of all court documents, filings and disclosed materials that are received by or sent to the Accused;
- to be present in the courtroom during the proceedings;
- to be engaged actively in the substantive preparation of the case and to participate in the proceedings, in order always to be prepared to take over from the Accused at trial (see below);
- to address the Court whenever so requested by the Accused or the Chamber;
- to offer advice or make suggestions to the Accused as counsel sees fit, in particular on evidential and procedural issues;
- as a protective measure in the event of abusive conduct by the Accused, to put questions to witnesses, in particular sensitive or protected witnesses, on behalf of the Accused if so ordered by the Trial Chamber, without depriving the Accused of his right to control the content of the examination;³⁷
- in exceptional circumstances to take over the defence from the Accused at trial should the Trial Chamber find, following a warning, that the Accused is engaging in disruptive conduct or conduct requiring his removal from the courtroom under Rule 80(B)”.³⁸

Pursuant to Rule 54, the Trial Chamber decided that standby counsel shall be assigned to the Accused in this case, stated that standby counsel must be fluent both in B/C/S and in one of the official languages of the Tribunal, and ordered the Registry to assign one standby counsel from the list of counsel kept by the Registrar under Rule 45(B). It further stated that its Decision is without prejudice to any subsequent decision regarding the assignment or appointment of counsel fulfilling the requirements of Rule 44(A), or investigators³⁹ or amici curiae, as the case progresses, either on application by either party or proprio motu. It rejected the Prosecution’s Motion insofar as that Motion seeks an order from the Trial Chamber “directing the Registrar to appoint legal counsel to assist the accused Seselj with the preparation and conduct of his defence” without any limitation.

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1. Vojislav Seselj voluntarily surrendered to the Tribunal on 24 February 2003.
2. Transcripts (T) 6.
3. Rule 54 (General Rule) At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.
4. Prosecution’s Motion, para. 11.
5. Prosecution’s Motion, paras. 9-13, footnotes 18, 20, 23-26 and related attachments. For example, the Accused allegedly stated in 1994 in an interview for a French film “Crimes et Criminels” that: “Personally, I do not recognize this Hague Tribunal. I think it has no legal foundation, but if I am ever invited to The Hague I’ll gladly go there immediately. I would never miss such a show.” He is reported to have said that “he would gladly travel to The Hague to ‘destroy’ the war crimes tribunal in case it open[ed] a trial against him”, Deutsche Presse-Agentur, 3 February 2003. At a press conference of the Serbian Radical Party on 9 February 2003 he allegedly stated that “the Tribunal in The Hague is an extraordinary ground where I could defend and protect the Serb national interests”. On 4 February 2003, the Belgrade daily “Blic Politika” reported the Accused as saying that the Tribunal would be “a good training field for the protection of Serb national interests”.
6. Accused’s Response, p. 1.
7. Ibid.
8. Ibid., p. 3.
9. Para. 11.
10. Milosevic, IT-02-54-T, Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel (“Milosevic’s Decision”), 4 April 2003 (for a detailed summary of the Decision see pp. 17-19 of the present issue of the Judicial Supplement).
11. Milosevic, IT-02-54-T, Order Inviting Designation of Amicus Curiae, 30 August 2001; and Order Concerning Amici Curiae, 11 January 2002.
12. Milosevic, IT-02-54-T, Order, 16 April 2002.
13. Barayagwiza, ICTR-97-29-T, Decision on Defence Counsel Motion to Withdraw, Concurring and Separate Opinion oif Judge Gunawardana, 2 November 2000.
14. Faretta v. California, 422 U.S. 806 (1975).
15. Mc Kaskle v. Wiggins, 465 U.S. 168 (1984).
16. Farhad v. United States, 190 F.3d 1097 (9th Cir. 1999), 1101.
17. Ibid., 1106.
18. Para. 17.
19. Para. 18 (emphasis by the Trial Chamber).
20. Communication No. 526/1993 (views adopted on 2 April 1997 at the fifty-ninth session of the Committee), Reports of the Human Rights Committee, vol. II, GAOR, Suppl. 40 (A/52/40).
21. Article 21(4)(d) of the ICTY Statute is strictly identical to Article 14(3)(d) of the ICCPR.
22. Croissant v. Germany, ECHR, No. 62/1991/314/385, 25 September 1992, A237-B.
23. Ibid., para. 28. The ECHR endorsed the Regional Court’s argument concerning the need to ensure that the Accused was adequately represented throughout his trial, with regard to its probable length and to the size and complexity of the case.
24. Para. 20. See also the developments under “The ad hoc Tribunals”.
25. Para. 21.
26. Para. 22.
27. Ibid.
28. Accused’s Response, p. 1.
29. Ibid.
30. See footnote 5.
31. Para. 22.
32. Ibid.
33. Para. 23.
34. Para. 27.
35. Para. 28.
36. Para. 29.
37. The Trial Chamber added in footnote 56 that “[s]uch a measure would be less intrusive than the alternative option of interrupting and discontinuing the examination of the Accused himself in the interests of justice”.
38. Para. 30.
39. The Trial Chamber added in footnote 57 that “[c]ommunication or correspondence with investigators is not to be regarded as privileged”.