Forcing the accused to have counsel

Mr Milosevic has to accept counsel at his trial.

This decision was upheld by the Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("Tribunal" or "ICTY "): Milosevic v Prosecutor, 1 November 2004, Case no. IT-02-54-AR73.7.

Ironically, counsel assigned to Mr Milosevic filed the appeal against the order that Mr Milosevic had to accept counsel.

The right to defend one’s self is not absolute, as the Trial Chamber had recognised throughout the proceedings. Frequent adjournments of the proceedings have been necessary, depending on Mr Milosevic’s blood pressure. Although his health continued to decline, and delays lengthen, he was still able to make strenuous objections to the imposition of counsel on him.

What are the duties of counsel who are imposed on a reluctant client? The Trial Chamber issued a set of guidelines. These allowed for further participation in the conduct of his defence by Mr Milosevic, as the Appeals Chamber observed, "[h]owever, his participation would be secondary to that of Assigned Counsel and strictly contingent on the discretionary permission of the Trial Chamber in any given instance."

The Appeals Chamber noted that the law in many countries allows for restrictions on the right of an accused to represent himself, citing examples in England, Scotland, Canada, New Zealand, and Australia. But the issue here went further than that. At para 13 the Appeals Chamber held:

"It must further be decided whether the right may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial. The Appeals Chamber believes that, under the appropriate circumstances, the Trial Chamber may restrict the right on those grounds."

(para 14): "How should the Tribunal treat a defendant whose health, while good enough to engage in the ordinary and non-strenuous activities of everyday life, is not sufficiently robust to withstand all the rigors of trial work – the late nights, the stressful cross-examinations, the courtroom confrontations – unless the hearing schedule is reduced to one day a week, or even one day a month? Must the Trial Chamber be forced to choose between setting that defendant free and allowing the case to grind to an effective halt? In the Appeals Chamber’s view, to ask that question is to answer it."

In the circumstances, the decision of the Trial Chamber to appoint counsel for Mr Milosevic was upheld. However it did not uphold the particulars which spelt out the role he was entitled to have in relation to counsel. It was wrong (para 16) of the Trial Chamber to sharply restrict his ability to participate in the conduct of his defence. In particular, it was wrong to permit him to cross-examine witnesses only with leave of the Chamber, and then only after counsel had cross-examined. Restrictions on his right to represent himself had to be proportional to what was necessary to accomplish their objective:

"17. These sharp restrictions, unfortunately, were grounded on a fundamental error of law: the Trial Chamber failed to recognize that any restrictions on Milosevic’s right to represent himself must be limited to the minimum extent necessary to protect the Tribunal’s interest in assuring a reasonably expeditious trial. When reviewing restrictions on fundamental rights such as this one, many jurisdictions are guided by some variant of a basic proportionality principle: any restriction of a fundamental right must be in service of "a sufficiently important objective," and must "impair the right... no more than is necessary to accomplish the objective." Similarly, while the International Covenant on Civil and Political Rights allows some restriction of certain civil rights where "necessary to protect national security, public order (ordre public), public health or morals, or the rights and freedoms of others," the United Nations Human Rights Committee has observed that any such restrictions "must conform to the principle of proportionality;... they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected." And the ICTY itself has been guided by a "general principle of proportionality" in assessing defendants’ suitability for provisional release, noting that a restriction on the fundamental right to liberty is acceptable only when it is "(1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target."

The Trial Chamber had exercised its discretion wrongfully, in that it failed to establish a carefully calibrated set of procedures which reflected Mr Milosevic’s actual state of health. It concluded:

"19. In light of the foregoing discussion, the Appeals Chamber affirms the Trial Chamber’s imposition of defense counsel, but reverses its Order on Modalities. On remand, the Trial Chamber should craft a working regime that minimizes the practical impact of the formal assignment of counsel, except to the extent required by the interests of justice. At a minimum, this regime must be rooted in the default presumption that, when he is physically capable of doing so, Milosevic will take the lead in presenting his case – choosing which witnesses to present, questioning those witnesses before Assigned Counsel has an opportunity to do so, arguing any proper motions he desires to present to the court, giving a closing statement when the defense rests, and making the basic strategic decisions about the presentation of his defense. But this presumption is just that: a presumption. Under the current circumstances, where Milosevic is sufficiently well to present a vigorous, two-day opening statement, it was an abuse of discretion to curtail his participation in the trial so dramatically on the grounds of poor health. The Appeals Chamber can hardly anticipate, however, the myriad health-related difficulties that may arise in the future, or use this occasion to calibrate an appropriate set of responses to every possible eventuality. It is therefore left to the wise discretion of the Trial Chamber to steer a careful course between allowing Milosevic to exercise his fundamental right of self-representation and safeguarding the Tribunal’s basic interest in a reasonably expeditious resolution of the cases before it.
"20. The Appeals Chamber stresses the following point: in practice, if all goes well, the trial should continue much as it did when Milosevic was healthy. To a lay observer, who will see Milosevic playing the principal courtroom role at the hearings, the difference may well be imperceptible. If Milosevic’s health problems resurface with sufficient gravity, however, the presence of Assigned Counsel will enable the trial to continue even if Milosevic is temporarily unable to participate. The precise point at which that reshuffling of trial roles should occur will be up to the Trial Chamber."

This restores the proper relationship between counsel and accused: counsel is obliged to follow instructions in the conduct of the defence: R v McLoughlin [1985] 1 NZLR 106, (1984) 1 CRNZ 215 (CA). In the absence of a specific instruction, counsel may make tactical decisions in the interests of the accused: R v S [1998] 3 NZLR 392, also reported as R v Accused (CA467/97) (1998) 15 CRNZ 611 (CA), at p 395; p 614; R v Young 15/9/03, CA13/03. Of course, the way the defence case is conducted, by counsel or by the accused in person, may itself prejudice the court against the accused: R v Sharma 3/9/03, CA431/02.