Global Policy Forum

By Ana Uzelac*

Judges Say Latest Intervention Was Intended to
Ensure the Defendant Gets a Fair Trial.

Three weeks after Hague tribunal judges imposed a defence lawyer on Slobodan Milosevic, they have issued a full written explanation for what is likely to go down in history as one of the court's most important decisions. The 23 page-long document made public this week essentially argues that the decision to assign a lawyer on the unwilling, ailing Milosevic was the only way to ensure that the former Yugoslav president would get a fair trial. The view is bound to further divide legal experts and the public at large over the court's latest move.

Earlier this month, the judges ordered that after two-and-a-half years of presenting his own defence, Milosevic was too ill to defend himself. They assigned his former amicus Steven Kay as his lawyer and gave the defendant the right to question witnesses only once Kay was finished with the examination in chief.

Milosevic responded to the judges' decision by again accusing the court of trying to muzzle him. He declined the court's offer to appoint his own lawyer and refused to communicate with the court-assigned one. Just a week into the second stage of the trial, the first potential witnesses refused to appear in court, quickly bringing the proceedings to a halt and forcing judges to give Kay a month's time to review his strategy. Kay has asked and was given consent to appeal his own appointment.

The appeals chamber is likely to take this week's written statement by Milosevic judges into account when it tries to reach its own decision in the coming weeks on the imposition of a defence lawyer on the defendant. In this week's decision the judges argued that Milosevic's right to defend himself in person is not absolute and must be seen in the context of an "overarching right to a fair trial". They soon moved to describe how the two rights came to collide in the case, which is unprecedented in its complexity and political significance.

The judges agreed with the common interpretation that it was "fundamental" to ensure that Milosevic "would have the opportunity and facility to present his defence fully and effectively". But then, they added that Milosevic's claims to his right to defend himself would not ensure this fundamental right "in circumstances where he is seriously ill and regularly prevented for protracted periods from acting in his own defence".

A fair trail, they argued, is "a trial without undue delay". "Should a trial not be conducted expeditiously … the risk of unfairness will arise," they warned, adding that repetitive disruptions of a trial "whatever the circumstances, may give rise to the risk of miscarriage of justice". The judges argued it was their duty to "put in place a regime which will avoid" such an outcome.

The reasoning listed in details 13 different disruptions that have been caused by Milosevic's worsening health since the beginning of the trial, holding it up for 66 days – almost five months worth of proceedings. The beginning of the defence part of the trial was also delayed by two months due to his recurring bouts of high blood pressure. After one of the two cardiologists who've examined Milosevic over the summer warned the judges in his report that such bouts are certain to recur if the defendant experiences stress, the trial chamber moved to establish the exact state of his health – details of which have since been revealed in court sessions.

The judges went through these findings one more time in their decision, summing up the points where the two cardiologists agreed. These were that Milosevic suffered from "severe essential hypertension"; that he "was not fit enough to defend himself"; and that "should he continue to defend himself, the progress of trial would be delayed significantly". "Both doctors were at one in concluding that a hypertensive emergency, a potential life-threatening condition could develop," the judges said.

They, however, repeated their view that despite of all this, Milosevic was still not unfit to stand trial, and have stressed that both cardiologists found that "the most likely explanation for the persistent nature of Milosevic's hypertension was his "failure to adhere to his prescribed treatment regime".

"The concern of the Chamber was that….the risk to the health, and indeed the life, of the Accused and the prospects that the trial would continue to be severely disrupted were so great as to be likely to undermine the integrity of the trial process," the judges said. "There was a real danger that this trial might either last for an unreasonably long time or, worse yet, might not be concluded should the accused continue to represent himself without the assistance of counsel."

The tribunal is under serious pressure to speed up proceedings and wrap up its work by 2010 – the deadline envisaged by the courts "completion strategy". The judges insisted that during the two-and-a-half years of the trial, the court has "gone to great lengths" to accommodate Milosevic: from agreeing to have legal advisors to help with his defence and the amici curiae to ensure his rights were respected, to providing him with facilities from which to conduct his work. But now, the judges said "the time had come …to take further steps to ensure the fair and expeditious conclusion to this trial".

They reiterated that Milosevic would be able to participate in his trial only "along with counsel", but stressed they did not intend to deprive him of "his right to speak either by giving evidence, examining and re-examining witnesses as permitted by the Chamber, selecting and submitting documentary evidence, and making final submissions on the evidence". But should Milosevic fail to cooperate, the judges warned, "The trial will nonetheless proceed."

And repeated their stark warning from one of the previous court sessions, "If such failure on the part of the accused results in material which is actually relevant to the defendant's case not being presented, then the Accused must bear responsibility for that and cannot plead injustice." The trial is schedule to resume on October 12.

About the Author: Ana Uzelac is IWPR project manager in The Hague.