Self-Representation Under Scrutiny

The decision of judges to appoint a lawyer to Radovan Karadzic after he boycotted his own trial has highlighted the difficulties surrounding the issue of self-representation.



The former Bosnian Serb president is the most recent in a line of defendants at the court to shun professional help in presenting what is a highly complex legal case.



While the right to self-representation is upheld by the tribunal as an important principle, it has also led to numerous problems including lengthy delays and political grandstanding.



Since the start of his trial last week, Karadzic has failed to attend, arguing that he was not allowed sufficient time to prepare. His absence meant that for the duration of the prosecution’s five-hour opening statement there had been no one to represent him in the courtroom.



But if he obstructs the proceedings again judges will revoke his right to represent himself and the appointed counsel will step in to present his case when the trial resumes on March 1, 2010.



Karadzic’s no-show follows that of Serb nationalist politician Vojislav Seselj, who in November 2006 was also absent for the prosecution’s opening statement in his own trial.



Seselj had decided that as a trained lawyer he wanted to exercise his right not to be represented by counsel at trial, and refused to attend the courtroom in protest at the appointment of a standby lawyer to assist in his defence.



In 2001, the late Serbian president Slobodan Milosevic also declined the services of a lawyer to represent him in court, dragging out proceedings for four years. He died of a heart attack in his Hague prison cell before justice could be done.



According to some commentators, the high public office previously held by these defendants has led them to insist on representing themselves in the courtroom.



“I think they tend to be larger-than-life characters, used to controlling the situation around them, whether it’s military or whether they were political civilian leaders,” explained retired tribunal judge, Patricia Wald, who has conducted her own study on the issue of self-representation at international tribunals.



“I think these people want to control the strategic decision-making about the course of their defence. I [also] think that one of their prime motivations is to attract the media and to provide a forum for making what are in large part political defences.”



Milosevic famously used his trial to deny the legitimacy of the court itself and devoted large portions of proceedings to political rhetoric.



"I want to remind you, I'm not recognising this tribunal, considering it completely illegitimate and illegal, so all those questions about counsels, about representations, are out of any question," Milosevic said on August 30, 2001.



Milosevic’s stance, along with Seselj’s and most recently Karadzic’s refusal to attend their own trial, show how lengthy procedures to deal with self-represented defendants can disrupt the administration of international justice.



“I think this has been one of the unfortunate aspects of some of the trials we have seen on the international stage at the tribunal for the former Yugoslavia, for Rwanda and also the special court for Sierra Leone,” Mark Ellis, executive director of the International Bar Association, told IWPR.



“When you have one of these very long, interminable trials that are delayed by appeals and by tirades by the accused, it really throws the court, it disrupts the business of the court as well as, never mind even the expense of providing all this assistance to a self-represented accused,” Wald said.



The court’s official languages are French and English, meaning that sometimes months have to be spent translating documents into Bosnian or Serbian for the self- represented defendant to understand.



But others downplay the problems self-representation and politically-charged cases pose to the tribunal.



“I don’t think that the Milosevic trial featured a great deal of political grandstanding,” Professor William Schabas, director of the Irish Centre for Human Rights, told IWPR.



“Many of these trials at international tribunals, when you’re dealing with leaders of movements and of countries, have a political dimension which is unavoidable. And it’s not unreasonable that someone like Karadzic or Milosevic feels this is not only a trial of them as an individual but a trial of their conduct as heads of state or government....so they are going to use the trial as a bit of a political platform.



“The trials have an inherently political dimension, we should just acknowledge that.”



Pre-trial proceedings had suggested that Karadzic would be employing different tactics from his predecessors. Karadzic has complied with customary legal procedures throughout his pre-trial preparation.



He also has a number of legal advisers who have helped him to prepare and file motions over the 15 months since his arrest in Belgrade on July 21, 2008.



“Karadzic has been reasonably cooperative [with the court] until this point,” Luka Misetic, a defence lawyer at the tribunal, told IWPR. “I think for a self-representing accused he’s been very cooperative.”



However, judges pointed out in their November 5 decision to appoint him a lawyer that Karadzic should focus on defending himself solely against the crimes he is charged with and not, as he has indicated he will, focus on wider debates about the outbreak of the war.



ENSHRINING A PRINCIPLE



The statute of the tribunal allows its defendants the right to represent themselves, a right also enshrined in the International Covenant on Civil and Political Rights, ICCPR.



However, tribunal rules do not make this right absolute, stating that “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”.



Observers cite a number of reasons why defendants may be drawn to represent themselves in court.



The participation of defendants represented by a lawyer is limited and they are normally only granted the opportunity to give a statement or take the stand as a witness.



Additionally, as Karadzic has emphasised, court rules dictate that once a defendant employs a lawyer to represent them they cannot sack that lawyer - for whatever reason - without the judges’ permission.



Other trials of self-represented defendants have also presented problems for the court. In addition to using his trial as a political platform, Seselj refused to cooperate with the court and submitted pages of offensive and abusive filings to judges, repeatedly refusing to be assisted by a lawyer even when one was imposed on him by the judges.



His protests at being assigned a standby lawyer led him to go on a month-long hunger strike in 2006. He has been in The Hague for the last seven years, yet his trial is yet to see the completion of the prosecution’s case.



It is cases such as those of Milosevic and Seselj that have created concern that the court’s sanctioning of self-representation as an essential right has not always gone to plan.



“I wouldn’t necessarily deny an accused the right to represent himself, but nevertheless I don’t think the right to self-representation ever was intended to allow an accused or give him a licence to obstruct the proceedings - which is how that right to self-representation has been perverted at the tribunal,” Misetic said.



Before judges appointed counsel for Karadzic, the defendant failed to attend three separate trial hearings and was warned on four occasions that his behaviour could lead to such sanctions.



Judges do tend to make it clear to defendants representing themselves just how hard it can be.



“In Karadzic the pre-trial judge went into a fair amount of detail when Karadzic raised the right of self-representation telling him what it entailed and did he recognise the issues and extra burdens,” Wald said.



Lord Iain Bonomy, who oversaw pre-trial proceedings, informed Karadzic that compromises could be made and that it was not a stark choice between representing himself and being represented by a lawyer and having to remain silent in court.



The case of Slobodan Praljak at the court has seen judges allow the defendant to question witnesses in court on issues where he has personal expertise while still being represented by lawyers.



Praljak is currently standing trial for war crimes against Muslims as part of the Croat-led war effort in Bosnia.



“In the Praljak case we see a hybrid approach,” explained Michael Karnavas, a lawyer representing another defendant in the case. “The trial chamber has attempted to straddle and balance the two competing fair trial rights which are at play: the right to assist in one’s own defence which encompasses the right of self-representation and the right to a fair trial.



“For the most part the process has worked rather well,” he continued. “It is good example of how with a bit of creative thinking and some flexibility solutions can be found.”



When it comes to defendants who have opted for full self-representation Wald is concerned about the approach of the tribunal, and particularly its appeals judges.



“They entered down a road with the appellate chamber of being quite lenient - more lenient than American courts - in terms of when they will take away the right to self-representation if somebody is abusing it,” Wald explained.



In November 2004, appeal judges in the Milosevic case affirmed the defendant’s “fundamental” right of self-representation. They also upheld trial judges’ assigning of counsel to Milosevic, while simultaneously ruling that they had taken too many of Milosevic’s rights away. The appeal judges decided to allow him to question witnesses and control the strategy of his defence once more.



Trial judges in the Karadzic trial again emphasised the “fundamental nature” of the right to represent oneself, declaring that it “cannot be diminished lightly”.



In the autumn of 2006, the appeals chamber in the Seselj case twice overturned the trial judges’ decision to impose counsel on the defendant on the basis of obstructionist behaviour. Trial judges have subsequently denied the prosecution’s further motion to have a lawyer assigned to represent Seselj.



“The issue with Seselj has been that he misbehaves in the courtroom and there are simple solutions. They can just exclude him from the courtroom,” Schabas said.



“There’s nothing unfair about that. He has to behave properly in the courtroom and judges are capable of administering that. I don’t know why it’s such a daunting problem.”



According to Ellis, the court needs to get away from allowing defendants to set the agenda of the trial.



“Sometimes they have been too sensitive to this issue whereas I think there needs to be a greater focus on, in the interests of justice, the need to move the case forward and certainly not to continue to set a precedent where the defendant is the one that is dictating the terms of the trial. That to me seems to be really unacceptable,” Ellis said.



This week’s ruling by the Karadzic bench will mean that come March 1, 2010, proceedings will move forward. If Karadzic fails to turn up, he will lose his right to self-representation and his counsel will step in to the proceedings.



Schabas believes the right to self-representation should remain, although judges should go on with the trial regardless of the defendant’s behaviour.



“I’m inclined to take the view that the accused has the right to defend himself and that he also has a right to boycott the proceedings if he wants, in which case the trial goes on without him,” Schabas said.



In their decision to appoint Karadzic standby counsel, judges rejected such an approach, ruling that continuing proceedings without Karadzic would prevent the trial from contributing to the “truth-seeking function” and reconciliatory missions of the tribunal.



“To allow the trial chamber to hear and assess only half of the evidence....would be to deny the opportunity the trial process may have to engender such peace and reconciliation as may be gleaned from a full hearing of the evidence brought by both the prosecution and the accused,” judges ruled.



Commentators note that tribunal judges have been determined to uphold self-representation as a basic right for a defendant although at the time of the founding of the tribunal in 1993 it was not known how the process would manifest itself in practice.



“It was motivated in large part by their desire to accord full due process to the accused. I think they wanted to give what they considered a very broad interpretation to the right to self- representation even in circumstances where other courts might have said ‘enough is enough’,” Wald said.



Regardless of a defendant’s wider motives, in terms of mounting an effective legal defence, some lawyers say that defendants put themselves at a disadvantage by electing to go without a lawyer.



“I think it’s disastrous,” Misetic said. “It’s like a patient saying I know my body better than anybody else and therefore I am going to operate on myself.”



According to Misetic, mounting an effective defence in court goes far beyond just knowing what the facts of the case are and with their lack of courtroom experience self-represented defendants can often incriminate themselves further.



“A self-representing accused who doesn’t understand what he is doing, many times, more often than not, will further incriminate himself by asking questions in a manner because he doesn’t know how to question a witness, that will elicit answers that will hurt him even more,” Misetic said.



TO GUARANTEE A FAIR TRIAL



Based on a self-represented defendant’s legal inexperience and the judges need to ensure a fair trial, Professor Wolfgang Schomburg, a retired tribunal judge, advocates making it obligatory for all defendants to be represented by a lawyer.



“In my opinion there can’t be a fair trial without defence counsel,” Schomburg told IWPR.



As a member of the appeals bench in the case of Momcilo Krajisnik, Schomburg wrote a legal opinion to the effect that the right to self-representation actually went against the principles of a fair trial.



“I am deeply convinced that international tribunals dealing with mega crimes can only carry out their important task of balancing the interests of victims with the interests of an accused by requiring the latter to be assisted by counsel for his own benefit,” Schomburg wrote, adding that “there is no fair procedure before international tribunals without public legal assistance.”



“In my opinion it is a fundamental mistake that the rules only read, ‘If the interest of justice so require, defence counsel may be installed’,” Schomburg told IWPR.



“That’s not the point. This brings in real difficulties that on a case by case basis it has to be decided whether or not to impose counsel.”



While human rights safeguards grant the right to defend oneself or have legal assistance, Schomburg believes this has been misinterpreted and should actually be understood as allowing both at the same time – in effect, a defendant would control his own case but have compulsory professional support.



Some lawyers find the concept of doing away with the practice at international tribunals problematic, although they recognise that some jurisdictions - such as many in Europe and those of Bosnia or Serbia - do not allow for self-representation at all, or not in cases where a heavy sentence is possible.



“The right to self-representation is one of those rights that is much more important for the defendant than for society as a whole - in comparison, for example, to the right to a speedy trial. It is a part of respecting the defendant’s autonomy in the process,” Professor Gregory Gordon, of the University of North Dakota Law School, told IWPR.



Despite his boycott of proceedings, Karadzic currently retains his right to represent himself, having also received more time to prepare his case.



Wald believes that by taking a firm approach, rather than uniformly taking the right away, it is possible for international tribunals to manage the right to self- representation.



“There's a middle ground between recognising the right and not letting the proceedings go on for three or four years in constant turmoil," she said.



Simon Jennings is an IWPR reporter in The Hague.