The Longest Trial in History: Court Refuses to Impose Counsel
The Longest Trial in History: Court Refuses to Impose Counsel
In a written decision dated April 4, 2003, the Trial Chamber in the Milosevic case held, '[I]n the present circumstances, the accused has the right to defend himself in person.' It then denied the prosecution's motion to impose counsel on Milosevic.
With this ruling, the Court assured the trial will continue in the manner it has proceeded for the last 14 months. That includes an abbreviated schedule (half days and four-day weekends every two weeks) to reduce stress on the accused; unanticipated, extended adjournments for Milosevic's illnesses; often irrelevant and tendentious cross examination, necessarily requiring additional cross examination by the amici; cross examination of witnesses for the maximum time allowed by the Court, including cross examination of nearly all 92 bis witnesses (whose direct evidence is submitted in writing); lack of agreement on even the most noncontroversial facts, requiring the prosecution to prove everything. In other words, the longest trial in history.
In making its ruling, the Trial Court found that the plain meaning of the ICTY statute gives the accused the right to defend himself. Article 21 (4) provides in pertinent part, 'The accused shall be entitled to the following minimum guarantees . . . . (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing. . . .'
The Court recognized that civil law (inquisitorial) systems often require that criminal accused facing serious charges be represented by counsel, whether or not the accused agrees. The court, however, adopted the rule prevalent in common law (adversarial) systems, stating that the ICTY is 'essentially adversarial.' In doing so, the Court quoted extensively from a decision of the United States Supreme Court, which held that imposition of counsel without an accused's consent violates the Sixth Amendment to the U.S. Constitution (Faretta v. California, 422 US 806 (1975)). Even without a Sixth Amendment governing ICTY procedure, the Trial Court found Faretta's reasoning persuasive.
In Faretta, Justice Stewart wrote for a divided Supreme Court: '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 found that '[t]he language and spirit of the Sixth Amendment contemplate that counsel, like the other defence tools guaranteed by the Amendment, shall be an aid to a willing defendant -- not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master . . . .' 'To force a lawyer on a defendant can only lead him to believe that the law contrives against him.'
In adopting this reasoning, the Trial Chamber did not analyze whether and to what extent the U.S. Constitutional guarantee anticipates and is based on an accused's right to trial by jury, and whether this undermines the reasoning when applied to non-jury proceedings, such as trials before the ICTY. Nor did the Trial Chamber address the fact that the U.S. Supreme Court based its holding on 'the inestimable worth of free choice' recognized in the U.S. Constitution and by the Court as higher than the defendant's right to a fair trial (which, arguably in most cases, requires the assistance of professional counsel). Given the extremity of the U.S. valuation of independence and free choice, the Trial Chamber might have considered whether that should be adopted by a system of international justice, particularly one concerned with criminal conduct under a formerly socialist and civil legal system.
The Trial Chamber went on to mention a 'further, practical reason for the right to self-representation in common law.' In the adversarial system, the prosecution and defense present the case to the judge as opponents. This clash of opposites is supposed to reveal the truth to the decision-maker (most often a jury, though the Trial Chamber solely concerned itself with professional judges). In the inquisitorial system, the judge serves more of an investigative function, questioning the parties and witnesses in an attempt to find the truth.
According to the Milosevic Trial Chamber, '[I]n an adversarial system, the imposition of defence counsel on an unwilling accused would effectively deprive that accused of the possibility of putting forward a defense.' The Court does not explain how this occurs, but goes on to discuss an accused's 'obligation of 'putting a case,' i.e. putting forward the defence version of events if it differs from that put forward by a witness . . . .' The Court said that 'obligation' could not be fulfilled where the accused doesn't tell counsel what defence to put forward.
The Court's characterization of an adversarial system where the accused tells his counsel what defense to put forward does not reflect all adversarial systems. In the U.S., e.g., decisions involving strategy, including what witnesses to call, are generally considereed matters for counsel. S/he need not consult with their client and may make decisions the client disagrees with. Decisions which are solely the province of the accused including whether or not to plead guilty, to waive a jury trial and to testify on his own behalf. Moreover, in the U.S. the accused has no 'obligation' to defend himself. The obligation of putting forward a case is solely that of the prosecution.
A reading of ICTY rules indicates an accused before the Tribunal has a similar right not to bring a defense, as well as to bring a bad one. Rules 84-86, describing the conduct of the trial including the accused's role, are permissive. For example, 'Each party is entitled to call witnesses and present evidence.' 'Each party may make an opening statement.' 'The accused shall not be compelled to make a solemn declaration. . . .' '[T]he defense may make a closing argument.' [emphases added]
The Trial Chamber also rested its decision on guarantees provided to criminal defendants by certain international and regional conventions. For example, the International Covenant on Civil and Political Rights (ICCPR), adopted by 146 nations, provides that a criminal defendant has the right 'to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; . . .' The new International Criminal Court statute uses similar language: the accused has the right 'to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, [. . .],' subject, however, to limitations if the accused is disruptive in the courtroom.
The Trial Chamber noted that the European Commission on Human Rights (ECHR) has held that the right to defend oneself is not absolute. 'The ECHR said that 'it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certainly have regard to the defendant's wishes [. . .]. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.''
The Milosevic Court nevertheless found the case in which the ECHR so held to be different on the facts (distinguishable) from the Milosevic case and, therefore, not controlling.* Instead, the Trial Chamber turned to a decision of the Human Rights Commission (HRC) of the United Nations, interpreting the ICCPR. Despite the brevity of its reasoning, the Trial Chamber found it 'highly relevant to the correct interpretation of Article 21 (4) (a) of the [ICTY] Statute, especially since this provision is identical to Article 14 (3) (d) of the ICCPR.' The Milosevic Court found that the HRC decision 'confirms the right to self-defence and rejects the imposition of defence counsel on an unwilling accused.'
Again, the Court buttressed its finding on practical considerations. If counsel were imposed on Milosevic, the Court speculated, the accused could refuse to instruct the counsel as to the defence to adopt, thereby rendering counsel impotent, in the court's view. In the alternative, Judge May wrote for the Court, the Trial Chamber could allow Milosevic to 'make submissions and question witnesses, in which case, the defence counsel could do no more than the Amici Curiae.' As noted above, however, the degree to which counsel can decide what defense to adopt over the accused's objections or without his input has not been established by the Tribunal.
Noting that Milosevic is competent to defend himself and that he had rejected the Court's advice that it was in his best interest to be assisted by counsel, the Court concluded he was 'entitled to defend himself in person.' Perhaps considering the practicalities once more, i.e. how Milosevic might react to its ruling, the Court added that the right to defend oneself is not absolute. It pointed to ICTY Rule 80 (B) which provides that a persistently disruptive accused can be removed from the courtroom, following a warning, and the proceedings can be continued without him. The Trial Chamber stressed, 'Clearly, 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.'
While distinguishing the case on its facts, the Chamber also referred to a decision (Barayagwiza) in its sister institution, the International Criminal Tribunal for Rwanda (ICTR), where a Trial Chamber held there may be circumstances 'where it is in the interests of justice to appoint counsel [against the accused's will].' Having left itself this 'out,' the Chamber declared, 'No such circumstances have, as yet, arisen in this trial.' The opinion continues, 'However, as the Trial Chamber has said, it will keep the position under review.'
The Chamber did not discuss other limitations on the right of self-representation, including those regularly imposed at the ICTY. Perhaps the idea that rights are conditioned by wealth has become so second-nature that the lack of choice for those who cannot afford counsel remains invisible. It is true in common law jurisdictions, such as the United States, as well. While extending the right of counsel to the poor and recognizing the state has to pay for it if it is to be meaningful, the United States Supreme Court and the U.S. Congress nevertheless concluded that if the state is paying, the state gets to choose. The ICTY adheres to that distinction, despite its guarantee that accused shall be entitled to specified rights 'in full equality.' Article 21 (4).
The Milosevic Trial Chamber's decision to deny the prosecution's request that it impose counsel on the accused is not entirely clear. It appears to follow the U.S. rule, despite the fact that rule is derived from the U.S. Constitution. On the other hand, in seeking to preserve its options with an obstreperous accused, the Chamber holds out the possibility that the interests of justice might trump the rights of the accused under the right circumstances (which have yet to occur). Given that another accused awaiting trial insists on his right to defend himself (Vojislav Seselj), and that the prosecution in that case has applied to another Trial Chamber for counsel to be imposed on the accused, the issue is likely to end up before the Appeals Chamber at some point. In the meantime, the Milosevic case will proceed as it has for the last 14 months -- with the likelihood of having the distinction of being the longest trial in history.
*Decisions of other international bodies are not controlling as such, but act as a guide for the ICTY in deciding questions of law.
With this ruling, the Court assured the trial will continue in the manner it has proceeded for the last 14 months. That includes an abbreviated schedule (half days and four-day weekends every two weeks) to reduce stress on the accused; unanticipated, extended adjournments for Milosevic's illnesses; often irrelevant and tendentious cross examination, necessarily requiring additional cross examination by the amici; cross examination of witnesses for the maximum time allowed by the Court, including cross examination of nearly all 92 bis witnesses (whose direct evidence is submitted in writing); lack of agreement on even the most noncontroversial facts, requiring the prosecution to prove everything. In other words, the longest trial in history.
In making its ruling, the Trial Court found that the plain meaning of the ICTY statute gives the accused the right to defend himself. Article 21 (4) provides in pertinent part, 'The accused shall be entitled to the following minimum guarantees . . . . (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing. . . .'
The Court recognized that civil law (inquisitorial) systems often require that criminal accused facing serious charges be represented by counsel, whether or not the accused agrees. The court, however, adopted the rule prevalent in common law (adversarial) systems, stating that the ICTY is 'essentially adversarial.' In doing so, the Court quoted extensively from a decision of the United States Supreme Court, which held that imposition of counsel without an accused's consent violates the Sixth Amendment to the U.S. Constitution (Faretta v. California, 422 US 806 (1975)). Even without a Sixth Amendment governing ICTY procedure, the Trial Court found Faretta's reasoning persuasive.
In Faretta, Justice Stewart wrote for a divided Supreme Court: '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 found that '[t]he language and spirit of the Sixth Amendment contemplate that counsel, like the other defence tools guaranteed by the Amendment, shall be an aid to a willing defendant -- not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master . . . .' 'To force a lawyer on a defendant can only lead him to believe that the law contrives against him.'
In adopting this reasoning, the Trial Chamber did not analyze whether and to what extent the U.S. Constitutional guarantee anticipates and is based on an accused's right to trial by jury, and whether this undermines the reasoning when applied to non-jury proceedings, such as trials before the ICTY. Nor did the Trial Chamber address the fact that the U.S. Supreme Court based its holding on 'the inestimable worth of free choice' recognized in the U.S. Constitution and by the Court as higher than the defendant's right to a fair trial (which, arguably in most cases, requires the assistance of professional counsel). Given the extremity of the U.S. valuation of independence and free choice, the Trial Chamber might have considered whether that should be adopted by a system of international justice, particularly one concerned with criminal conduct under a formerly socialist and civil legal system.
The Trial Chamber went on to mention a 'further, practical reason for the right to self-representation in common law.' In the adversarial system, the prosecution and defense present the case to the judge as opponents. This clash of opposites is supposed to reveal the truth to the decision-maker (most often a jury, though the Trial Chamber solely concerned itself with professional judges). In the inquisitorial system, the judge serves more of an investigative function, questioning the parties and witnesses in an attempt to find the truth.
According to the Milosevic Trial Chamber, '[I]n an adversarial system, the imposition of defence counsel on an unwilling accused would effectively deprive that accused of the possibility of putting forward a defense.' The Court does not explain how this occurs, but goes on to discuss an accused's 'obligation of 'putting a case,' i.e. putting forward the defence version of events if it differs from that put forward by a witness . . . .' The Court said that 'obligation' could not be fulfilled where the accused doesn't tell counsel what defence to put forward.
The Court's characterization of an adversarial system where the accused tells his counsel what defense to put forward does not reflect all adversarial systems. In the U.S., e.g., decisions involving strategy, including what witnesses to call, are generally considereed matters for counsel. S/he need not consult with their client and may make decisions the client disagrees with. Decisions which are solely the province of the accused including whether or not to plead guilty, to waive a jury trial and to testify on his own behalf. Moreover, in the U.S. the accused has no 'obligation' to defend himself. The obligation of putting forward a case is solely that of the prosecution.
A reading of ICTY rules indicates an accused before the Tribunal has a similar right not to bring a defense, as well as to bring a bad one. Rules 84-86, describing the conduct of the trial including the accused's role, are permissive. For example, 'Each party is entitled to call witnesses and present evidence.' 'Each party may make an opening statement.' 'The accused shall not be compelled to make a solemn declaration. . . .' '[T]he defense may make a closing argument.' [emphases added]
The Trial Chamber also rested its decision on guarantees provided to criminal defendants by certain international and regional conventions. For example, the International Covenant on Civil and Political Rights (ICCPR), adopted by 146 nations, provides that a criminal defendant has the right 'to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; . . .' The new International Criminal Court statute uses similar language: the accused has the right 'to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, [. . .],' subject, however, to limitations if the accused is disruptive in the courtroom.
The Trial Chamber noted that the European Commission on Human Rights (ECHR) has held that the right to defend oneself is not absolute. 'The ECHR said that 'it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certainly have regard to the defendant's wishes [. . .]. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.''
The Milosevic Court nevertheless found the case in which the ECHR so held to be different on the facts (distinguishable) from the Milosevic case and, therefore, not controlling.* Instead, the Trial Chamber turned to a decision of the Human Rights Commission (HRC) of the United Nations, interpreting the ICCPR. Despite the brevity of its reasoning, the Trial Chamber found it 'highly relevant to the correct interpretation of Article 21 (4) (a) of the [ICTY] Statute, especially since this provision is identical to Article 14 (3) (d) of the ICCPR.' The Milosevic Court found that the HRC decision 'confirms the right to self-defence and rejects the imposition of defence counsel on an unwilling accused.'
Again, the Court buttressed its finding on practical considerations. If counsel were imposed on Milosevic, the Court speculated, the accused could refuse to instruct the counsel as to the defence to adopt, thereby rendering counsel impotent, in the court's view. In the alternative, Judge May wrote for the Court, the Trial Chamber could allow Milosevic to 'make submissions and question witnesses, in which case, the defence counsel could do no more than the Amici Curiae.' As noted above, however, the degree to which counsel can decide what defense to adopt over the accused's objections or without his input has not been established by the Tribunal.
Noting that Milosevic is competent to defend himself and that he had rejected the Court's advice that it was in his best interest to be assisted by counsel, the Court concluded he was 'entitled to defend himself in person.' Perhaps considering the practicalities once more, i.e. how Milosevic might react to its ruling, the Court added that the right to defend oneself is not absolute. It pointed to ICTY Rule 80 (B) which provides that a persistently disruptive accused can be removed from the courtroom, following a warning, and the proceedings can be continued without him. The Trial Chamber stressed, 'Clearly, 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.'
While distinguishing the case on its facts, the Chamber also referred to a decision (Barayagwiza) in its sister institution, the International Criminal Tribunal for Rwanda (ICTR), where a Trial Chamber held there may be circumstances 'where it is in the interests of justice to appoint counsel [against the accused's will].' Having left itself this 'out,' the Chamber declared, 'No such circumstances have, as yet, arisen in this trial.' The opinion continues, 'However, as the Trial Chamber has said, it will keep the position under review.'
The Chamber did not discuss other limitations on the right of self-representation, including those regularly imposed at the ICTY. Perhaps the idea that rights are conditioned by wealth has become so second-nature that the lack of choice for those who cannot afford counsel remains invisible. It is true in common law jurisdictions, such as the United States, as well. While extending the right of counsel to the poor and recognizing the state has to pay for it if it is to be meaningful, the United States Supreme Court and the U.S. Congress nevertheless concluded that if the state is paying, the state gets to choose. The ICTY adheres to that distinction, despite its guarantee that accused shall be entitled to specified rights 'in full equality.' Article 21 (4).
The Milosevic Trial Chamber's decision to deny the prosecution's request that it impose counsel on the accused is not entirely clear. It appears to follow the U.S. rule, despite the fact that rule is derived from the U.S. Constitution. On the other hand, in seeking to preserve its options with an obstreperous accused, the Chamber holds out the possibility that the interests of justice might trump the rights of the accused under the right circumstances (which have yet to occur). Given that another accused awaiting trial insists on his right to defend himself (Vojislav Seselj), and that the prosecution in that case has applied to another Trial Chamber for counsel to be imposed on the accused, the issue is likely to end up before the Appeals Chamber at some point. In the meantime, the Milosevic case will proceed as it has for the last 14 months -- with the likelihood of having the distinction of being the longest trial in history.
*Decisions of other international bodies are not controlling as such, but act as a guide for the ICTY in deciding questions of law.
