Court's Radical Review Continues: Revisits Severance of Indictments
Court's Radical Review Continues: Revisits Severance of Indictments
Despite adjourning the Milosevic trial for 6 more weeks, the Trial Chamber is not remaining idle. Nor is it content to let Milosevic's ill health and self-representation continue to lengthen a trial that began nearly two and a half years ago and has not yet reached its halfway mark.
In an order issued July 19, the Court declared its intention to see the defence case completed by October 2005, which it calculated on the basis of three partial sitting days a week with no recesses other than for regular holidays. It is obvious, the Court noted, that Milosevic will be unable to meet this schedule if the trial continues as it has been. Moreover, despite the fact that five months have elapsed since Milosevic was required to be in court, the doctors have declared him not yet physically able to do so.
Considering this and its essential duty to see the trial to a fair and expeditious end, the Court is gathering information it needs to direct the future of the case. It has ordered medical reports from three doctors, including a treating and independent cardiologist, as well as Milosevic's treating physician, to determine his ability to continue representing himself in the manner he has been doing. The Court directed the Registrar to identify potential legal counsel who might be appointed in some capacity to assist with the defence. Also on July 19, the Court asked the Prosecution to submit legal authority on the role of imposed counsel to assure a fair presentation of the defence case, particularly where an accused refuses or will not cooperate with defence counsel. Milosevic has consistently insisted on representing himself, declaring that accepting even a standby counsel or co-counsel is 'out of the question.' Whether he will retain that position as his options for appearing in court narrow is an open question.
In a surprise to court observers, the Court issued yet another order on July 20, this one directing the parties to file written submissions on the possibility of severing one or more of the indictments. The parties were also asked to indicate which of the three indictments should go first, if the Trial Chamber decides to proceed in this manner.
The move was surprising because in February 2002 the Appeals Chamber reversed the Trial Chamber's refusal to join the three indictments as requested by the Prosecution. The Trial Chamber held that criminal acts alleged under the Kosovo indictment were not part of the same transaction as the criminal acts alleged under the Croatia and Bosnia indictments. Therefore, they did not meet ICTY Rule 49's requirement for joinder. The Appeals Chamber ruled the Trial Chamber misinterpreted the meaning of 'the same transaction.' It then decided the acts alleged in the three indictments (for crimes in Croatia, Bosnia and Kosovo) were part of the same transaction and could, therefore, be heard together. Indeed, the Appeals Chamber ruled a single trial would be less burdensome to the Accused than two or three. The Trial Chamber had allowed joinder of the Bosnia and Croatia indictments.
In raising the issue again 2 1/2 years into the trial, the Trial Chamber noted that the Appeals Chamber had said it could revisit the issue of severance should the trial become unmanageable. '[I]f with the benefit of hindsight it becomes apparent to the Trial Chamber that the trial has developed in such a way as to become unmanageable -- especially if, for example, the prosecution is either incapable or unwilling to exercise the responsibility which it bears to exercise restraint in relation to the evidence it produces -- it will still be open to the Trial Chamber at that stage to order a severance of the charges arising out of one or more of the three areas of the former Yugoslavia. Nothing in the present Decision or in these reasons will prevent it from doing so.'
While the Appeals Chamber didn't foresee the events which have developed to 'make the trial unmanageable,' it left it to the Trial Chamber to decide whether to sever one or more of the trials if it should become necessary. It is questionable whether severance would save any time, as the Appeals Chamber noted in its Decision. It would, however, allow for a completed trial on one of the indictments much earlier than if the three indictments remain joined.
Before the trial started, Milosevic disdained taking any position on joinder of the three indictments. '[. . .] how you are going to conduct your proceedings, that's up to you. I will give you no suggestions regarding that,' he told the Court. He may well voice an opinion at this stage, however, given that he is the one organizing the presentation of the evidence. The question is does he want one of the cases completed, particularly if it is Kosovo which many observers feel was the prosecution's strongest? Or would he prefer the trial continue to drag on without a resolution?
Of course, Milosevic's preferences and even what is fairest to him are not the only considerations. The public and victims also have an interest in seeing the trial completed in what can no longer be called a reasonable time, but rather a less unreasonable time. As well, the Tribunal has an interest in preserving the integrity of its process -- which calls for a conclusion to this much bedeviled trial as expeditiously as circumstances and fairness allow. At least the Trial Chamber now seems committed to taking matters in hand to assure the defence case is completed by October of next year.
The Prosecution's submission on the parameters of appointing counsel is due July 26, while the parties must address the issue of severance by July 27. The Tribunal is due to recess July 30 for three weeks, though the Appeals Chamber could issue a written decision during that period. Milosevic is to begin his defence on August 31.
In an order issued July 19, the Court declared its intention to see the defence case completed by October 2005, which it calculated on the basis of three partial sitting days a week with no recesses other than for regular holidays. It is obvious, the Court noted, that Milosevic will be unable to meet this schedule if the trial continues as it has been. Moreover, despite the fact that five months have elapsed since Milosevic was required to be in court, the doctors have declared him not yet physically able to do so.
Considering this and its essential duty to see the trial to a fair and expeditious end, the Court is gathering information it needs to direct the future of the case. It has ordered medical reports from three doctors, including a treating and independent cardiologist, as well as Milosevic's treating physician, to determine his ability to continue representing himself in the manner he has been doing. The Court directed the Registrar to identify potential legal counsel who might be appointed in some capacity to assist with the defence. Also on July 19, the Court asked the Prosecution to submit legal authority on the role of imposed counsel to assure a fair presentation of the defence case, particularly where an accused refuses or will not cooperate with defence counsel. Milosevic has consistently insisted on representing himself, declaring that accepting even a standby counsel or co-counsel is 'out of the question.' Whether he will retain that position as his options for appearing in court narrow is an open question.
In a surprise to court observers, the Court issued yet another order on July 20, this one directing the parties to file written submissions on the possibility of severing one or more of the indictments. The parties were also asked to indicate which of the three indictments should go first, if the Trial Chamber decides to proceed in this manner.
The move was surprising because in February 2002 the Appeals Chamber reversed the Trial Chamber's refusal to join the three indictments as requested by the Prosecution. The Trial Chamber held that criminal acts alleged under the Kosovo indictment were not part of the same transaction as the criminal acts alleged under the Croatia and Bosnia indictments. Therefore, they did not meet ICTY Rule 49's requirement for joinder. The Appeals Chamber ruled the Trial Chamber misinterpreted the meaning of 'the same transaction.' It then decided the acts alleged in the three indictments (for crimes in Croatia, Bosnia and Kosovo) were part of the same transaction and could, therefore, be heard together. Indeed, the Appeals Chamber ruled a single trial would be less burdensome to the Accused than two or three. The Trial Chamber had allowed joinder of the Bosnia and Croatia indictments.
In raising the issue again 2 1/2 years into the trial, the Trial Chamber noted that the Appeals Chamber had said it could revisit the issue of severance should the trial become unmanageable. '[I]f with the benefit of hindsight it becomes apparent to the Trial Chamber that the trial has developed in such a way as to become unmanageable -- especially if, for example, the prosecution is either incapable or unwilling to exercise the responsibility which it bears to exercise restraint in relation to the evidence it produces -- it will still be open to the Trial Chamber at that stage to order a severance of the charges arising out of one or more of the three areas of the former Yugoslavia. Nothing in the present Decision or in these reasons will prevent it from doing so.'
While the Appeals Chamber didn't foresee the events which have developed to 'make the trial unmanageable,' it left it to the Trial Chamber to decide whether to sever one or more of the trials if it should become necessary. It is questionable whether severance would save any time, as the Appeals Chamber noted in its Decision. It would, however, allow for a completed trial on one of the indictments much earlier than if the three indictments remain joined.
Before the trial started, Milosevic disdained taking any position on joinder of the three indictments. '[. . .] how you are going to conduct your proceedings, that's up to you. I will give you no suggestions regarding that,' he told the Court. He may well voice an opinion at this stage, however, given that he is the one organizing the presentation of the evidence. The question is does he want one of the cases completed, particularly if it is Kosovo which many observers feel was the prosecution's strongest? Or would he prefer the trial continue to drag on without a resolution?
Of course, Milosevic's preferences and even what is fairest to him are not the only considerations. The public and victims also have an interest in seeing the trial completed in what can no longer be called a reasonable time, but rather a less unreasonable time. As well, the Tribunal has an interest in preserving the integrity of its process -- which calls for a conclusion to this much bedeviled trial as expeditiously as circumstances and fairness allow. At least the Trial Chamber now seems committed to taking matters in hand to assure the defence case is completed by October of next year.
The Prosecution's submission on the parameters of appointing counsel is due July 26, while the parties must address the issue of severance by July 27. The Tribunal is due to recess July 30 for three weeks, though the Appeals Chamber could issue a written decision during that period. Milosevic is to begin his defence on August 31.
