13 September 2006
British Helsinki Human Rights Group
On 10th September 2004, the International Criminal Tribunal for the former Yugoslavia imposed defence counsel on its most famous defendant, Slobodan Milosevic. This decision overturned previous rulings: the Prosecution had tried, at the beginning of the trial, to force a lawyer on Milosevic, and the judges had addressed the issue several times during the hearings.
On 3rd July 2001, the very first day of the trial, the presiding judge, the late Sir Richard May, said,
"Mr. Milosevic, I see that you're not represented by counsel today. We understand that this is of your own choice. You do have the right, of course, to defend yourself."[1]
On 30th August, Judge May again said, "The accused is entitled to represent himself."[2] The judge announced that amici curiae would be appointed in order to ensure that the trial was fair. May emphasised that the role of the amici would not be to represent the accused.
Despite these clear statements, the Prosecution again argued that counsel should be imposed. Although Judge May had already ruled on this, Judge Patrick Robinson intervened and made the following statement:
"Mr. Ryneveld, I have heard your submission. However, I do not consider it appropriate for the Chamber to impose counsel upon the accused. We have to act in accordance with the Statute and our Rules which, in any event, reflect the position under customary international law, which is that the accused has a right to counsel, but he also has a right not to have counsel. He has a right to defend himself, and it is quite clear that he has chosen to defend himself. He has made that abundantly clear. The strategy that the Chamber has employed of appointing an amicus curiae will take care of the problems that you have outlined, but I stress that it would be wrong for the Chamber to impose counsel on the accused, because that would be in breach of the position under customary international law."[3] (Judge Robinson has since become the presiding judge, following the death of Judge May.)
After Robinson had made his intervention, May returned to the subject a third time, saying
"Let me add this, Mr Ryneveld: Yes, that is the view of the Trial Chamber, that it would not be practical to impose counsel on an accused who wishes to defend himself."[4]
As if this were all not enough, Judge May returned to the subject again on 11th December.
"Mr. Milosevic," he said, "there's one matter we want to raise with you. It's this: You haven't appointed counsel to defend you. As you know, it's your right to defend yourself if you wish, although you may wish to reconsider that in the light of the complexity and seriousness of these charges. But that's a matter for you."[5]
The reason why the judges kept to this position is indeed that the right of a accused person to defend himself is indeed enshrined in the statute of the International Criminal Tribunal. Article 21.4.d states, "The accused shall be entitled . to defend himself in person." No qualification or exceptions are laid out here. Although the same article also says that the accused is entitled "to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it," it is quite clear that this article does not mean the court has right to impose counsel, but instead that the accused has the right to a lawyer if he needs one. This interpretation is itself used by the ICTY's own "Directive on the Assignment of Defence Counsel," dated 28th July 2004, which reaffirms the right of an accused to defend himself (Article 5). This Directive makes it clear that the assignment of counsel is a right enjoyed by the accused, not a right of the court to assign one if the accused wishes to defend himself.
The right to defend oneself is enshrined in other documents too. Using the very words which have since been integrated into the ICTY's own statute, Article 6.3.c of the European Convention on Human Rights states: "Everyone charged with a criminal offence has the following minimum rights: . to defend himself in person." As with the ICTY statute, no exceptions or derogations from this are provided for. Perhaps the ICTY, being a UN body, does not think it is bound by the European Convention even though it has direct legal force in many European states. But even the United Nations' own documents also provide for this right. Article 14.3.d. of the International Covenant on Civil and Political Rights also uses the same language: "In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: . to defend himself in person". No exceptions or derogations are provided: indeed the right to defend oneself in person is a "minimum guarantee". It is a core right.
In spite of this, on 8th November 2002, the Prosecution again applied for defence counsel to be imposed. It argued that the defendant should have counsel imposed for health reasons. Again, the Trial Chamber rejected this, in an oral ruling on 18th December 2002. On 4th April 2003, the Trial Chamber issued a long document laying out its reasons for refusing to impose counsel.[6] It reviewed the ICTY's own statute and concluded rapidly that "A plain reading of this provision [Article 21.4.d] indicates that there is a right to defend oneself in person and the Trial Chamber is unable to accept the Prosecution's proposition that it would allow for the assignment of defence counsel for the Accused against his wishes in the present circumstances."
The Trial Chamber then launched into a long discussion of the relevant law, drawing on cases from around the world. It argued that the imposition of counsel was a feature only of inquisitorial systems, not of the adversarial systems used by the ICTY. In support of its view that the imposition of counsel was inadmissible, the Trial Chamber quoted the US Supreme Court case Faretta v. California, 422 U.S. 806 (1975), which states, "We confront here a nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so." The Supreme Court held that imposition of counsel would violate the spirit of the 6th amendment. The ICTY Trial Chamber commented:
"It [i.e. the Supreme Court] pointed out that only the sixteenth century Star Chamber in the long history of English legal history adopted a practice of forcing counsel upon an unwilling defendant in criminal proceedings, and recounted Stephen's comment on this procedure: 'There is something specially repugnant to justice in using rules of practice in such a manner as to debar a prisoner from defending himself, especially when the professed object of the rules so used is to provide for his defence.' "
The ICTY Trial Chamber went on,
"There is a further practical reason for the right to self-representation in common law. While it may be the case that in civil law systems it is appropriate to appoint defence counsel for an accused who wishes to represent himself, in such systems the court is fulfilling a more investigative role in an attempt to establish the truth. In the adversarial systems, it is the responsibility of the parties to put forward the case and not for the court, whose function it is to judge. Therefore, in an adversarial system, the imposition of defence counsel on an unwilling accused would effectively deprive that accused of the possibility of putting forward a defence." [emphasis added]. It also concluded that, "The obligation of 'putting a case,' i.e. putting forward the defence version of events if it differs from that put forward by a witness, is reflected in Rule 90 (H) of the Rules. As the Amici Curiae note, such an obligation cannot be fulfilled by counsel who is not instructed by an accused as to the defence to put forward."
The Trial Chamber then reviewed some of the other international documents which uphold the right of a defendant to defend himself, including the International Covenant on Civil and Political Rights, mentioned above, the American Convention on Human Rights (Article 8.2.d), the European Convention on Human Rights (mentioned aboive), and the Statute of the new International Criminal Court. (Article 67.1.d) In this statute, the right to defend oneself is limited only when the defendant behaves in a disruptive manner in the court room. (The Rwanda tribunal, indeed, has imposed counsel on a defendant for this very reason.) The Trial Chamber discussed the imposition of counsel in a case in Germany, a case which went to the European Court of Human Rights,[7] but rightly found this case to be irrelevant to the Milosevic case because the defendant was not defending himself. Discussing other cases too, the Trial Chamber concluded that the only relevant case did not allow for exceptions to the general right to defend oneself (paragraph 36). "The international and regional conventions (in similar language) plainly articulate a right to defend oneself in person . In the Trial Chamber's view, it is appropriate to be guided by the ICCPR and the Human Rights Committee's interpretation of it, which confirms the right to self- defence and rejects the imposition of defence counsel on an unwilling accused." (paragraph 37)
The Trial Chamber then turned to practicalities and concluded that imposition of counsel could simply not work because the defendant would refuse to instruct counsel (paragraph 38). Winding up its discussion, it says that the imposition of counsel can occur only when the defendant behaves in such a disruptive manner that he has to be removed from the courtroom (paragraph 40) and concludes (paragraph 41) that although the Trial Chamber has the duty to ensure an expeditious trial, it may do this only by respecting the rights of the accused as laid out in Article 21 of its own statute, i.e. by respecting the right of a defendant to defend himself.
All the main points of this reasoning were summarily thrown out of the window when Milosevic's defence started. On 10th September 2004, the Trial Chamber ruled that counsel would be imposed.[8] The reasons given for this astonishing volte-face are simply disingenuous. Referring to the 4th April 2003 ruling, Judge Robinson said, "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." This is disingenuous because the Trial Chamber explicitly laid down the circumstances in which the right might be limited (disruptive behaviour leading to expulsion from the court room). Even though Milosevic's health had been an issue ever since the trial started in early 2002, the Trial Chamber made no mention of this as a possible reason for imposing counsel on 4th April 2003.
In September 2004, the Trial Chamber suddenly adopted the Prosecution's argument that Milosevic had not been taking his medicine as prescribed, but it seemed not to care that it is obviously a basic human right to take medication as one sees fit - unless the defendant is mentally incompetent either to stand trial or regulate his medicinal intake. Crucially, the Trial Chamber offered no legal argument, i.e. by quoting precedent or law, for using the health of the accused as a reason for imposing counsel. It simply rescinded all its earlier decisions, which had been grounded in law and precedent; it stated that international and domestic law provided precedents for imposing counsel, without quoting a single one; and it said that it was "in the interests of justice" to impose counsel. No definition was given of these interests. The Trial Chamber concluded, "The fundamental duty of the Trial Chamber is to ensure that the trial is fair and expeditious," but in fact based its decision to impose counsel was grounded solely on expediency, at the expense of fairness. It should also be remembered that the bench in the Milosevic trial permitted the prosecution to ramble on for months with irrelevant "expert" testimony consuming sessions far beyond its original allotted time while the prosecutors tried to induce someone - anyone - from Serbia, to plead direct incrimination of Milosevic - all without success.
Even by the appalling standards of the ICTY, the one-sidedness of this decision to impose defence counsel (after reducing the time available to the defendant's case to about half that granted to the prosecution) is shocking. By going against all its own previous rulings on the matter, the Tribunal's decision is a pure example of arbitrary rule. As such, the ICTY has demonstrated itself to be in contempt of the rule of law. It suggests that achieving a verdict is the overriding concern of the Tribunal and given that it was the Prosecution which demanded the imposition of counsel on Mr. Milosevic, it is difficult to avoid the conclusion that conviction at all costs has become the guiding principle of the Tribunal.
[1] http://www.un.org/icty/transe54/010703IA.htm, page 1
[2] http://www.un.org/icty/transe54/010830SC.htm, page 7
[3] http://www.un.org/icty/transe54/010830SC.htm, page 17
[4] http://www.un.org/icty/transe54/010830SC.htm, page 18
[5] http://www.un.org/icty/transe54/011211MH.htm, page 149
[6] http://www.un.org/icty/milosevic/trialc/decision-e/040403.htm
paragraph 18
[7] Croissant v. Germany, European Court of Human Rights ("ECHR"), Case
No. 62/1001/314/385, Judgement, 25 September 1992 ("Croissant v.
Germany").
[8] http://www.un.org/icty/milosevic/trialc/order-e/040910.htm