Case No. IT-02-54-AR73.7

IN THE APPEALS CHAMBER

Before:
Judge Theodor Meron, President
Judge Fausto Pocar
Judge Mehmet Güney
Judge Inès Weinberg de Roca
Judge Florence Mumba

Registrar:
Mr. Hans Holthuis

Date Filed:
11 October 2004

________________________________________

The Office of the Prosecutor:

Ms. Carla Del Ponte

Amicus Curiae:

Mr. Geoffrey Nice
Mr. Timothy McCormack

The Accused:

Mr. Slobodan Milosevic

Assigned Counsel:

Mr. Steven Kay
Ms. Gillian Higgins

THE PROSECUTOR

v.

SLOBODAN MILOSEVIC

Case No. IT-02-54-AR73.7

Introduction

1. The Assigned Counsel appeal should be dismissed and the decision of the Trial Chamber to assign counsel to the Accused should be affirmed for the reasons given by the Trial Chamber.

2. The decision should also be affirmed for other reasons as set out at paragraphs 80-98 below, it being particularly important that all reasons justifying this decision are dealt with - so far as possible - "once and for all" so that the trial process may not be further disrupted and the trial process not further manipulated or interfered with (to the extent it was) between now and the proper conclusion of the trial.

Procedural Background

3. The issue of the Accused’s representation has been the subject of argument and rulings on a number of occasions throughout these proceedings.¹ The most recent submissions were sought by the Trial Chamber in response to a considerable deterioration in the health of the Accused during the period following the close of the Prosecution case.² The Prosecution and Assigned Counsel made written submissions in response to the Trial Chamber’s requests.³ The Accused, as usual, did not (he has refused to make written submissions during these proceedings save for two filings on the illegality of the tribunal⁴). Thereafter oral argument on the issue took place on 1 September 2004.⁵

4. On 2 September 2004 the Trial Chamber delivered an oral ruling determining to assign counsel to the Accused on the grounds of his health.⁶ At the outset of the Oral Ruling the Trial Chamber indicated that a fuller written decision would be issued.⁷

5. On 8 September 2004 the Assigned Counsel filed its “Request for a Certificate Pursuant to Rule 73(B) to Appeal Against the Trial Chamber Order Concerning the Representation of the Accused Dated 2 September 2004.” The Prosecution took no position with regard to the Assigned Counsel’s request as it viewed the request as a matter for the Trial Chamber.⁸ The request was granted on 10 September 2004 on the basis that, “the decision of the Chamber to assign counsel affects fundamentally the conduct of the trial and as such it would be best to have it resolved by the Appeals Chamber at this stage, rather than after the conclusion of the trial”.⁹

6. The Trial Chamber filed the written reasons alluded to in its Oral Ruling on 22 September 2004.¹⁰

7. The Assigned Counsel filed its “Appeal Against the Trial Chamber’s Decision on Assignment of Defence Counsel” (hereinafter “Appeal Brief”) on 29 September 2004.

8. On 5 October 2004 the Prosecution filed its “Prosecution Motion to Strike Ground of Appeal (3) from Assigned Counsel “Appeal Against the Trial Chamber’s Decision on Assignment of Defence Counsel””.¹¹ The Assigned Counsel responded to this on 8 October 2004.¹² The Prosecution will respond to the Assigned Counsel Response to the Prosecution Motion to Strike when addressing Ground 3 below.

This Response

9. In this response the Prosecution will address each of the grounds of appeal raised by the Assigned Counsel and show how the Trial Chamber made no errors of law in general and did not wrongly exercise its discretion in particular. The Prosecution will also argue that there were additional grounds which reinforce the need for counsel to be assigned and or themselves justify the assignment and that the Trial Chamber erred in exercising its discretion not to assign counsel to the Accused on these additional grounds. The additional grounds reinforcing the need for counsel are:

(a) the conduct of the Accused throughout the trial;

(b) the Accused’s manipulation of the Trial timetable through non-adherence to his therapeutic plan; and

(c) the scale and complexity of this case.

10. The Prosecution will further suggest that there were two errors in the legal reasoning set forth in the Reasons. The first was a tendency to couch the right to fairness in terms only referring to the Accused. The second was a failure to base the decision on the “interests of justice” test set forth in Article 21 (4)(d) (although, as will be shown, some considerations in the “interests of justice” were in fact referred to in the Reasons). Rectification of these errors would serve to further reinforce the Trial Chamber Decision. Rectification is also warranted as it would clarify the legal test applicable when determining whether an Accused should be allowed to represent himself or herself.

11. The Prosecution respectfully seeks leave to file a response which exceeds the page limit.¹³ Covering all the grounds of appeal raised by the Assigned Counsel in addition to developing the additional grounds outlined above and all to a level of detail that may be useful to the Appeals Chamber has required additional pages. The Prosecution thus seeks permission to file a Motion with total of 39 pages.

Admissibility of Respondent Submissions on Additional or Alternative Grounds of Appeal

12. The jurisprudence of this tribunal indicates that additional or alternative reasons in support of a Trial Chamber’s Decision can be raised by a respondent to an appeal. This proposition was established by the Appeals Chamber in relation to the Jelisic appeal. In Jelisic the defence contended that it was entitled to appeal against the accused’s acquittal on the count of genocide.¹⁴ The Appeals Chamber held that the defence could not raise arguments relating to the acquittal of Jelisic on the count of genocide in its appellant’s brief as an acquitted person has no right of appeal from acquittals under Article 25 of the Statute.¹⁵ However, the Appeals Chamber further found that “if the Prosecutor in her Appellant’s Brief relies on a particular ground to reverse the acquittal, the Defence in its Respondent’s Brief may seek to support the acquittal on additional grounds”.¹⁶

13. Similarly, in the Celebici case the accused Delalic, who had been acquitted by the Trial Chamber, nevertheless filed a “Notice of Cross Appeal”¹⁷ and subsequently a “Brief of Cross-Appellant Zejnil Delalic”¹⁸. In the latter brief, Delalic submitted there were errors in the Trial Chamber judgement.¹⁹ The Appeals Chamber noted that there is no right under the Statute to appeal from an acquittal but that Delalic’s submissions were “made essentially as a response to the Prosecution’s appeal against acquittal”.²⁰ Consequently, the Appeals Chamber determined to view the submissions as a “grounds of contention”²¹ “which will only be considered should the Prosecution succeed in its appeal with regard to Delalic”.²²

14. Also in the Bagilishema case the accused, who had been acquitted, filed motions, pursuant to Rule 115, for leave to file new evidence.²³ The Appeals Chamber did not dismiss this request but, as the issues would only be relevant if the Prosecution’s appeal against the acquittal was successful, decided to defer determination of the motions until after the hearing of the Prosecution’s appeal against Bagilishema’s acquittal. ²⁴

15. The Jelisic and Celebici and Bagilishema appeal cases therefore all support the general proposition that a respondent to an appeal can raise additional or alternative reasons in support of a Trial Chamber’s Decision and the Jelisic case expressly supports the proposition that such additional or alternative reasons should be raised in the response to the appellant’s brief.

16. Legislation from national jurisdictions also supports allowing such arguments to be raised by a respondent.²⁵ Indeed jurisprudence from the NSW Court of Appeal indicates that it is essential that such additional or alternative reasons are raised on appeal as otherwise, in the circumstances that the appellant is successful, the respondent is barred from raising the reasons in the lower court.²⁶

17. It is notable that jurisprudence from the Court of Appeal of England and Wales indicates that a respondent can make arguments in support of a decision in appeal proceedings even where he/she did not raise these arguments before the lower court.²⁷

18. The Prosecution did raise additional grounds (summarised above) supporting assignment of counsel in the oral hearing of 1 September 2004 (hereinafter “Oral Submissions”)²⁸ even if some of the additional arguments were not made as forcefully in prior pleadings as they might have been with the benefit of hindsight.²⁹

19. A further question is when should the respondent additional and/ or alternative grounds be considered – can they be considered at the same time that the appellant’s arguments are considered or should they only be considered in the event that the appellant’s arguments are successful? As noted above, in both the Celebici and Bagilishema cases the Appeals Chamber determined to deal with additional issues raised by the respondents only in the circumstances that the Prosecution’s appeal against acquittal was successful. However, the Prosecution submits that it is appropriate for the Trial Chamber to consider the additional grounds raised in this response even should it determine to support the Trial Chamber’s Decision and that such an approach is supported by jurisprudence from national jurisdictions.³⁰ It should do so as a matter of principle but also because of the great importance of the issue under appeal.

20. The importance of this trial can not be underestimated. It is the first ever trial of a former head of state for war crimes, crimes against humanity and genocide. The indictments underpinning the trial allege that this Accused was responsible for orchestrating much of the suffering occasioned to millions of people during the course of three wars. The case is an important test of the international community’s ability to bring justice and foster reconciliation in the aftermath of bloody conflicts. It is, unsurprisingly, the subject of considerable public scrutiny and it can reasonably be expected that it will be the subject of discussion and analysis for decades to come. Indeed, fairly or otherwise, it may be accurate to posit that the success or failure of this institution will likely be judged on its ability to, and to be seen to, deliver a just and fair result in this one particular trial.

21. The Decision in question assigns counsel to an Accused who has throughout asserted his right to represent himself in the context of an adversarial trial – proceedings where as a general but by no means absolute rule an accused who wishes to represent himself or herself will be allowed to do so. Any Decision to assign counsel to this Accused must be based on the firmest possible reasoning. In these circumstances it is clearly essential that all potential for assigning counsel should be considered and all potential errors in the Trial Chamber’s Decision be put before the Appeals Chamber.

22. Were the Decision to be upheld in its present form by the Appeals Chamber and the health of the Accused to remain the sole justification for the assignment of counsel, it may also be arguable that it would be appropriate to revisit the decision of assignment in light of future medical reports on a regular basis. Indeed the Assigned Counsel has already argued that additional medical reporting be obtained to determine whether the Accused has become fit to represent himself since the reports that formed the basis of the Decision.³¹ If assignment is in fact justified on several grounds including, but not limited, to health then a decision based on these grounds would foster certainty in the way the future of the trial should be conducted.

Assigned Counsel Grounds of Appeal

Ground 1(a) – The Trial Chamber erred in law in its interpretation of Articles 20 and 21 (4)(d) of the Statute by concluding that the “overarching right to a fair trial, which includes a right to a defence, may, where appropriate, lead to the assignment of counsel for the Accused to conduct his defence

23. Under this heading in their Appeal Brief the Assigned Counsel make the following arguments, which the Prosecution intends to deal with in turn:

1. that “the correct interpretation of Article 21 does not provide a power to impose counsel upon an unwilling defendant”,³² i.e. that Article 21(4)(d) should be interpreted as enshrining an absolute right for an accused to represent himself and that the Trial Chamber was therefore wrong to interpret the requirement of a fair trial as being superior to the minimum guarantees set out in Article 21;³³

2. that imposition of counsel is inappropriate in an adversarial system such as essentially exists at the Tribunal;³⁴ and in the alternative

3. that the Trial Chamber was wrong to assign counsel to the Accused in the circumstances,³⁵ specifically:

(a) that the Trial Chamber was wrong to assign counsel on the grounds of the ill-health of the Accused. In this regard that: there is no case law to support limitation of the Accused’s right to self-representation on these grounds;³⁶ there is a difference between deliberate misconduct and other circumstances that disrupt the proceedings;³⁷ and that the Accused was only judged to be unfit at the “current time” of the medical examinations ;³⁸ and

(b) that the balance of rights should have favoured the Accused being allowed to continue representing himself as delays in the trial timetable have not been shown to cause unfairness to the Accused.³⁹

Argument 1 - that “the correct interpretation of Article 21 does not provide a power to impose counsel upon an unwilling defendant”,⁴⁰ i.e. that Article 21(4)(d) should be interpreted as enshrining an absolute right for an accused to represent himself and that the Trial Chamber was therefore wrong to interpret the requirement of a fair trial as being superior to the minimum guarantees set out in Article 21;⁴¹

24. As the Assigned Counsel themselves concede, this argument is not supported by the jurisprudence of this Tribunal, the ICTR or the Special Court for Sierra Leone (“ SCSL”). Rather, the case law of international criminal tribunals “supports the general principle that the right to self-representation is a qualified as opposed to an absolute right”.⁴² This case law is well summarised in paragraphs 38 – 42 of the Trial Chamber’s Reasons and is hereby incorporated into this response, it being the Prosecution’s submission that there is no need to repeat it. It is also well summarised in the Prosecution’s previous submissions.⁴³

25. In response to the Assigned Counsel’s challenge to the potential for the case Croissant v. Germany to provide any guidance in the particular circumstances of the present case, the Prosecution observes that the Trial Chamber in the Seselj Decision affirmed that this case “dealt with self-representation in a broader context”.⁴⁴ Further, Croissant v. Germany is far from being the only European Court of Human Rights (“ECHR”) case that has considered the right to defend oneself in person provided for in Article 6(3)(c) of the European Convention. Rather there are a number of cases that have considered this issue and all have concluded that it is a matter for Contracting States whether an accused will defend himself in person, be represented by a lawyer of his own choosing or in certain circumstances by a lawyer appointed by the court.⁴⁵ ECHR jurisprudence clearly supports the Trial Chamber finding that the purpose of Article 21(4)(d) is to secure for an accused the right to a defence and that “Defence “in person” or “through legal assistance of his own choosing” are simply means whereby the minimum guaranteed right to “defend himself”, i.e. to a defence, may be exercised.”⁴⁶ This conclusion is also supported by jurisprudence from the Seselj case.⁴⁷ Recent jurisprudence from the United Nations Human Rights Committee also supports this proposition.⁴⁸

26. In addition, the Prosecution notes that the ECHR considers all minimum rights in Article 6 sub-paragraph 3 of the European Convention in the context of the purpose of these rights – to bring about a fair trial.⁴⁹ Expressed differently, the issue is balancing the right of an accused to represent him/herself in person with the right to a fair trial and the interests of justice. In a case where the applicant, himself a lawyer who had been struck off the Bar Council’s roll, was prevented from defending himself in person and claimed that this had deprived him of a fair trial, the court stated:

“It should be stressed that the reasons relied on for requiring compulsory representation by a lawyer for certain stages of the proceedings are, in the Court’s view, sufficient and relevant. It is, in particular, a measure in the interests of the accused designed to ensure the proper defence of his interests. The domestic courts are therefore entitled to consider that the interests of justice require the compulsory appointment of a lawyer.”⁵⁰

27. Furthermore, the jurisprudence of this Tribunal on the interpretation of other “ minimum guarantees” in Article 21 (4) supports the general proposition that these minimum guarantees are not absolute rights but are rather subject to limitation in order to ensure that a trial is fair, expeditious and in the interests of justice. Reflecting this, the Trial Chamber stated in its Reasons;

“[t]he minimum guarantees set out in Article 21(4) of the Statute are elements of the overarching requirement of a fair trial. It is in that context that the Accused’s right to defend himself in person, or through legal assistance of his own choosing, as set out in Article 21(4)(d), must be read”⁵¹

28. An example of the same principle can be found in the Delalic et al case, where the Appeals Chamber considered whether the Trial Chamber’s deadline for the defence case was a violation of Articles 20(1) and 21(4)(e) of the Statute. The Appeals Chamber stated that the exercise of these rights by an accused is not absolute but “is subject to the control of the Trial Chamber to ensure a fair and expeditious trial in the interests of justice”. ⁵² Thus the Trial Chamber found that as the right to call witnesses and the nature of their testimony is not absolute and can be controlled, so too is the time within which witnesses may give evidence subject to the control of the Trial Chamber.⁵³

29. The Appeals Chamber has also held that it is appropriate to approach the minimum guarantees in Article 21(4) from the perspective of the overall requirement that a trial is fair. In an interlocutory appeal on the issue of whether leave to amend the indictment should have been granted in the Kovacevic case, the Appeals Chamber stated that:

“[t]he following common general principles which may be derived from the practice of the European Court of Human Rights in relation to Article 6 of the ECHR provide some guidance as to how to interpret the requirements set out in Article 21, sub -paragraphs 4(a) and (c) of the Tribunal’s Statute: firstly, that the accused’s right to be informed promptly of the charges against him has to be assessed in light of the general requirement of fairness to the accused; … [a]s it relates to the present Appeal, the timeliness of the Prosecutor’s request for leave to amend the Indictment must thus be measured within the framework of the overall requirement of the fairness of proceedings”⁵⁴

30. Similarly, Trial Chambers have held that there are limits on the right in Article 21(4)(d) for an accused to have “legal assistance of his own choosing”. The Appeals Chamber has on several occasions stated that “the right to free legal assistance by counsel does not confer the right to choose one’s counsel”.⁵⁵ Furthermore, the Trial Chamber in the Prlic et al case recently found that even where an accused was paying for his own legal assistance, where “the existence or a reasonable expectation of conflict of interest is obvious” the Trial Chamber must determine:

“whether the risks and damage that could be caused are such as to jeopardise the right of the accused to a fair and expeditious trial or proper administration of justice, and if it finds that that is so, … [to take] the appropriate measures to restore or protect the fairness of trial and the integrity of proceedings. Such measures include barring counsel from representing an accused.”⁵⁶

31. In the Prlic et al case the Trial Chamber determined that a conflict of interest was very likely to arise in relation to the counsel of one accused. The Chamber stated, “it is the duty of the Trial Chamber to make sure that the proceedings would not be halted by foreseeable, and therefore avoidable, risks” and endorsed the finding in Hadzihasanovic that “StChe Chamber cannot wait until foreseeable harm is done to the proceedings. It is for the Chamber to prevent such foreseeable harm ”.⁵⁷

32. The Prosecution observes that the same logic was applied by the Trial Chamber in this case. The Trial Chamber stated that, “[i]f at any stage of a trial there is a real prospect that it will be disrupted and the integrity of the trial undermined with the risk that it will not be conducted fairly, then the Trial Chamber has a duty to put in place a regime which will avoid that”.⁵⁸

33. Finally, the Prosecution note that the Assigned Counsel quote selectively from Ronald Dworkin’s book in support of their contention.⁵⁹

34. In light of the jurisprudence set out above it is clear that the Trial Chamber did not misdirect itself either as to the principle or the law to be applied when determining that the right to self-representation is not an absolute right but rather needs to be assessed in the context of the overarching requirement of a fair trial.

Argument 2 - that imposition of counsel is inappropriate in an adversarial system such as essentially exists at the Tribunal

35. The Assigned Counsel submit that limitations on the right to self-representation in adversarial systems are narrow in scope.⁶⁰ They submit that this is for good reason – that an accused on whom counsel is imposed will believe the law contrives against him⁶¹ and because the requirement of putting a case requires instruction from the accused. ⁶²

36. In response the Prosecution points out that the general principle in adversarial systems is addressed in the Trial Chamber Reasons, along with the limitations on this principle.⁶³ The existence of such limitations again reinforces the point that the right of an accused to self -representation is not absolute and thus that “weighing” rights in the circumstances of a case, as the Trial Chamber did in its Reasons, is appropriate. Even in the United States, where the Supreme Court has found the 6th Amendment to the Constitution to support the right to self-representation,⁶⁴ limitations exist on this right. The Supreme Court has held, for example, that there is no constitutional right to represent oneself on appeal and that even at a trial level “the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer ”.⁶⁵ The Supreme Court has also held that a trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct,⁶⁶ as had the Quebec Court of Appeal.⁶⁷

37. The Assigned Counsel also underplay the limitations in sexual offences cases and other cases where victims are vulnerable.⁶⁸ Their failure to deal with the fact that in Scotland an accused charged with a sexual offence is prohibited from conducting his defence in person at trial is particularly notable.⁶⁹ It is further notable, as pointed out previously by the Prosecution, that such legislation “reflects the reality that accused representing themselves do not actually have an unfettered right as to the way a case should be presented and will enjoy only reduced discretion in that exercise the more they seek – consciously or otherwise – to interfere in the court process in a way that can not be tolerated.”⁷⁰

38. As for the supposed dangers of introducing a civil law practice into a more adversarial context, first the Prosecution points out that procedure before this Tribunal incorporates elements from both adversarial and civil law systems. Indeed, the Prosecution re-affirms its previous submissions that it is the “privilege and duty” of this Tribunal to look for solutions to problems facing it in both civil an adversarial traditions and, where a solution is found, to apply it.⁷¹ Further, as recognised by the Trial Chamber, the rationale behind mandatory assignment of counsel in the civil law tradition - namely that where personal liberty is at sake, the defence of an accused should be adequate and effective and that counsel are required to ensure this - remains powerful in the present context.⁷² Indeed, the Prosecution would go as far as to say that given the massive scale, severity and complexity of this trial, this rationale is particularly persuasive. Further, where, as in this case, the Accused has objectives outside the due administration of justice, it is likely that counsel are better placed than he is to represent his interests in obtaining an acquittal or lower sentence.⁷³

39. The Assigned Counsel try to draw a distinction on the basis of the accused retaining the right to address the court in civil law proceedings⁷⁴ – the situation is no different here according to the Order on Modalities.⁷⁵ The Assigned Counsel also raise the problem of an accused not instructing counsel. In response the Prosecution points to the words of the Scottish Executive consultative paper, Redressing the balance: cross-examination in rape and sexual offence trials : a pre-legislative consultation document, “If he fails to take such opportunities that is entirely his responsibility, and we do not see how he can, on that ground alone, claim to have been the victim of a miscarriage of justice.”⁷⁶

40. The Prosecution submits that in light of the above, there is clearly no error in the Trial Chamber’s determination that assignment of counsel against the will of an accused is appropriate in certain circumstances at this Tribunal.

Argument 3 - that the Trial Chamber was wrong to assign counsel to the Accused in the circumstances: (a) on the grounds of the ill-health of the Accused. In this regard that: there is no case law to support limitation of the Accused’s right to self-representation on these grounds; there is a difference between deliberate misconduct and other circumstances that disrupt the proceedings; and that the Accused was only judged to be unfit at the “current time” of the medical examinations

41. The Assigned Counsel are correct to say that the Trial Chamber does not refer to any jurisprudence that supports the limitation of the Accused’s right to self-representation in the specific circumstances of this case.⁷⁷ The Trial Chamber recognises as much itself stating, “[i]t may be that the matter only arises now for determination because of the exceptional circumstances of the present trial”.⁷⁸ The novelty of the situation in this case – or cases of this type – has been pointed out in previous Prosecution submissions to which the Prosecution respectfully refers the Appeals Chamber.⁷⁹ Cases where courts have considered removing an accused’s right to represent himself are also rare in national jurisdictions.⁸⁰ Thus the fact that a case with an equivalent factual matrix has not arisen should come as no surprise and nothing should turn on it.

42. Furthermore, the jurisprudence set out above fails to support the Assigned Counsel’s contention that the balancing of rights should be approached differently depending on whether an accused is engaging in deliberate misconduct or a “legitimate exercise of his right to self-representation”.⁸¹

43. In addition, as pointed out by the Trial Chamber, civil law legislation indicates that the imposition of counsel where an accused wishes legitimately to exercise self-representation is appropriate. ⁸² ECHR has also affirmed this practice⁸³ and recent United Nations Human Rights Committee jurisprudence also indicates that such legislation is acceptable.⁸⁴

44. As for the Trial Chamber’s conclusion that the health condition of the Accused at present warrants the imposition of counsel for the remainder of the trial, the Prosecution submits this was a correct conclusion. Recent medical reports have, significantly, specifically concluded that the Accused is not fit to represent himself.⁸⁵ The Assigned Counsel place undue weight on the statement in these medical reports that the assessment of unfitness pertains as at the present time.⁸⁶ These comments need to be put in context. As rightly pointed out by the Trial Chamber in its extensive summary of the developments in the health condition of the Accused, and previously in Prosecution submissions, the reality is that the health condition of the Accused has progressively declined since the trial began, with the Accused’s health condition following the close of the Prosecution case being particularly unstable, and with indications from the doctors treating the Accused being that ill-health will recur.⁸⁷

45. Furthermore, recent medical reports are at one and very clear in their conclusions that: “(1) the Accused has severe essential hypertension, (2) in the present situation, the Accused is not fit enough to defend himself, and (3) should the Accused continue to represent himself, the progress of the trial would be delayed significantly”.⁸⁸

46. Given these circumstances, it was entirely within the Trial Chamber’s discretion to conclude that there that “the risk to the health, and indeed the life, of this 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”⁸⁹ and thus that it was necessary to relieve the Accused of the burden of conducting his own case “with a view to stabilising his health to ensure, as far as possible, that the trial proceeds with the minimum of interruption in a way that will permit the orderly presentation of the Accused’s case and the completion of the trial within a reasonable time in his interests and the interests of justice: in other words, to secure for the Accused a fair and expeditious trial”.⁹⁰

47. Indeed, as will be argued under the next sub-heading, it is rather the Assigned Counsel’s argument, that the Accused should be allowed to choose the deterioration of his health, that is unreasonable. As Judge Kwon indicated at a recent procedural hearing: “SiCs it not plain from the medical report, doctor's report, that allowing him to continue representing himself is allowing ShimC to kill himself? We should not allow that can happen.”⁹¹

Argument 3 - that the Trial Chamber was wrong to assign counsel to the Accused in the circumstances: (b) that the balance of rights should have favoured the Accused being allowed to continue representing himself as delays in the trial timetable have not been shown to cause unfairness to the Accused

48. The Assigned Counsel argue that “the Decision contains no argument to support the proposition that the delays to the trial due to the ill health of the Accused in any way impair the fairness of the trial to him”.⁹² This is incorrect. As the Trial Chamber Reasons quite rightly point out, the health condition of the Accused impairs his ability to continue to conduct an effective defence.⁹³

49. Furthermore, the Prosecution points out that the fairness of a trial is not judged merely by reference to the accused, and the Assigned Counsel are wrong to submit that it is.⁹⁴ Rather, as the Trial Chamber in the Seselj case stated, the right to a fair trial “is not only a fundamental right of the Accused but also a fundamental interest of the Tribunal related to its own legitimacy”.⁹⁵ Likewise, Judge Shahabuddeen has said:

“The fairness of a trial is the result of the fairness of the system of justice employed. The latter depends on the striking of a balance between two competing interests. First, there is the justly publicised public interest in respecting the rights of the accused. Second, there is the less proclaimed but equal public interest in ensuring that crimes are properly investigated and duly prosecuted. (footnotes omitted).”⁹⁶

50. The source of the Assigned Counsel’s confusion on this point may well be the fact that on occasions in its Reasons the Trial Chamber suggests that fairness means fairness to the Accused.⁹⁷ However, on other occasions the Trial Chamber correctly recognises that a fair trial is a broader concept.⁹⁸ To the extent that the Trial Chamber suggests fairness means fairness to the Accused, the Prosecution submits that this is an erroneous. Such an error in no way invalidates the Decision. Indeed correcting this error would involve recognising the fairness rights of the Prosecution and the public which would have the effect of reinforcing the Decision. As in fact stated by the Assigned Counsel, “[i]n the absence of assignment of counsel, the trial may indeed take longer to reach its ultimate conclusion, and may be subjected to further delay and considered unfair to the process, or the concerned public or Mr. Milosevic’s alleged victims”.⁹⁹ Given the import of this Decision to this trial, and indeed to the Tribunal (as discussed above) the Prosecution would respectfully urge the Appeals Chamber to correct this error by expanding the grounds upon which counsel is assigned to the Accused to include the right of the Prosecution, victims and witnesses and the institution as a whole to a fair trial.

Ground 1(b) – The Trial Chamber erred in law in its interpretation of Articles 20 and 21 (4)(d) of the Statute by concluding that the need for the trial to continue was of greater importance than the need to respect the rights of the Accused in full

51. The Assigned Counsel underplay the importance of the continuation and completion of this trial. That this is an important consideration when determining whether to assign counsel against an accused’s will is supported by the jurisprudence of this and other international tribunals and of the ECHR. In the Seselj case one of the factors that the Trial Chamber referred to as justifying the assignment of “standby counsel” to the accused was the legitimate interest of the Tribunal in ensuring that the trial proceeds in a timely manner without interruptions, adjournments or disruptions.¹⁰⁰ This was also one of the factors referred to by the Trial Chamber in the Norman case at the Special Court for Sierra Leone.¹⁰¹

52. Likewise in the case of Croissant v. Germany at the ECHR in which Croissant submitted that the appointment of a third defence counsel was unnecessary and that its main aim was to convenience the court by ensuring that the trial proceeded without interruptions or adjournments. The court found:

“avoiding interruptions or adjournments corresponds to an interest of justice which is relevant in the present context and may well justify an appointment against the accused’s wishes.”¹⁰²

53. As has been shown above, there was no error by the Trial Chamber in their determination that allowing the Accused to continue to represent himself jeopardised his health and indeed his life. The consequent risk to the continuation and completion of this trial was also a valid and weighty consideration. In these circumstances, the Prosecution submits that there was no error of discretion in the balancing of rights undertaken by the Trial Chamber.

Ground 2 - The Trial Chamber’s exercise of its discretion was unreasonable in circumstances where: (a) The Trial Chamber failed to have regard to the preliminary issue of whether the Accused is fit enough to stand trial, having been declared unfit to represent himself

54. The Appeals Chamber is respectfully directed to the submissions the Prosecution previously made on this point in the Prosecution Reply.¹⁰³ As previously argued, there is no question that the Accused is unfit to stand trial : he clearly meets all the tests for fitness listed in the test recently formulated in the Strugar case.¹⁰⁴

55. The Assigned Counsel additionally argue that the right to self-representation should be deemed part of the list of capacities required in order for an accused to be fit to stand trial.¹⁰⁵ It is notable that this argument was not put before the Trial Chamber.¹⁰⁶ Furthermore, as argued in the Prosecution Reply, the Strugar Decision “at a minimum leaves open the possibility, and at a maximum supports the contention, that ill-health can justify the assignment of legal assistance in order to enable a trial to continue.”¹⁰⁷

56. In these circumstances, the Prosecution submits that no error lies in the Trial Chamber’s exercise of discretion not to explicitly consider the question of the Accused’s fitness to stand trial as a preliminary issue.¹⁰⁸

Ground 2 - The Trial Chamber’s exercise of its discretion was unreasonable in circumstances where: (b) The Trial Chamber did not allow the Accused to challenge the finding of unfitness to represent himself, by obtaining his own medical report.

57. As pointed out by the Trial Chamber, the sole reason the Accused advanced for challenging the medical report of Dr. Tavernier was that Dr. Tavernier was from Belgium which was the seat of NATO.¹⁰⁹ This is hardly a compelling reason.

58. Furthermore, the request was made at a very late stage even though the Accused was well aware that the issue of his health and the implications on the trial was being considered. So much was made clear in the 5 July 2004 procedural hearing, at which the Accused was present, which focused solely on the Accused’s health and during which Judge Robinson said:

“we will undertake a re-examination of the trial process and the continuation of the trial, bearing in mind the health problems of the accused, which are clearly chronic and recurrent based on the most recent report from the doctor. We're going to consider these matters, and we will give a ruling. We'll make an order either today or tomorrow.”¹¹⁰

59. That the Accused’s fitness to represent himself was being earnestly considered by the Trial Chamber was reinforced by the subsequent action taken by the Trial Chamber. The Trial Chamber requested additional medical reports on the fitness of the Accused to continue to represent himself and the likely impact on the trial schedule should he continue to do so.¹¹¹ It also sought submissions from the Prosecution, Amici Curiae and the Accused about the role counsel could take in ensuring the fair presentation of the Defence case.¹¹² The medical reports indicating that the Accused was manipulating his health condition should have further alerted him of the need to raise challenges.¹¹³ Given the considerable notice given to the Accused, it is hard to see his late request for additional medical reports as other than a further attempt to manipulate and delay the trial.¹¹⁴

60. As discussed above, the Trial Chamber Decision was based on the entire history of the Accused’s health and not just the recent medical reports. Further Dr. van Dijkman, who has been treating the Accused since he arrived at the UNDU, fully agreed with Dr. Tavernier’s assessment.¹¹⁵ In these circumstances, the Prosecution submits that no error lies in the majority of the Trial Chamber’s exercise of discretion not to allow the Accused to challenge the finding of unfitness to represent himself at a very late stage.

Ground 2 - The Trial Chamber’s exercise of its discretion was unreasonable in circumstances where: (c) The Trial Chamber permitted the Accused to prepare and present his opening statement from 31 August 2004 to 1 September 2004 without causing any disruption to the proceedings and thereby gave him a reasonable expectation that he would be able to present his case. The Trial Chamber thereafter exercised its discretion to assign counsel notwithstanding the fact that it did not have updated medical opinion confirming that the Accused was unfit at that stage in the proceedings.

61. As set out above, the Accused was well aware from at least 5 July 2004 that his fitness to represent himself was being assessed. Furthermore, on 25 August 2004 the Trial Chamber issued a “Scheduling Order Concerning Recommencement of the Trial ” which clearly enunciated that in light of Orders on the future conduct of the trial, submissions received on the matter and medical reports received, the trial would recommence on 31 August according to the schedule:

“(a) the Accused will make his opening statement;

(b) following the opening statement of the Accused, there will be a procedural hearing at which the parties and the Amici Curiae may make further submissions concerning the content of the medical reports and assignment of defence counsel, and raise, with leave of the Trial Chamber, any other urgent procedural issues;

(c) the Trial Chamber will thereafter issue a further order concerning these matters ;

(d) no evidence will be heard until Tuesday, 7 September 2004”.¹¹⁶

In these circumstances, the fact that the Trial Chamber allowed the Accused to present his opening statement clearly gave rise to no “reasonable” expectation that he would thereafter be able to present his own case.

62. In this ground the Assigned Counsel again raise the argument that further medical reports should have been obtained. As previously submitted in paragraphs 44 – 47 there was no error in the Trial Chamber’s exercise of discretion to assign counsel on health grounds when it did. To reinforce the point, the start of the defence case had been postponed 5 times. That thereafter the Accused was well enough to address the Chamber for 2 days in no way suggests error in the Trial Chamber’s finding.

63. As for the Assigned Counsel’s submission that “the Trial Chamber has a duty to review and reassess the working regime and physical capabilities of the Accused on a regular basis”,¹¹⁷ the Prosecution submits that repeatedly revisiting the question of the Accused’s fitness to represent himself will unquestionably jeopardise the integrity of this trial and the interests of justice in its continuation and completion. The Trial Chamber was correct to determine that “the time had come to take further steps to ensure the fair and expedient conclusion of the trial.”¹¹⁸

Ground 2 - The Trial Chamber’s exercise of its discretion was unreasonable in circumstances where: (d) Having regard to (c), the Trial Chamber did not seek medical opinion as to whether there was any revised working regime within which the Accused could have continued to represent himself at this stage in the proceedings.

64. The Prosecution reiterates its submission in paragraphs 44 - 47 that there was no error in the Trial Chamber’s exercise of discretion to assign counsel on health grounds when it did.

Ground 2 - The Trial Chamber’s exercise of its discretion was unreasonable in circumstances where: (e) The Trial Chamber failed to give sufficient weight to the considerations raised by the Amici Curiae in relation to the problems caused by assigning counsel to an accused against his will.

65. The very question that the Trial Chamber sought submissions on from the Prosecution, Amici Curiae and Accused in July and August this year was what role counsel could take in ensuring the fair presentation of the defence case “in particular in the absence of instructions to, or cooperation with, counsel by the Accused”.¹¹⁹ To suggest that the Trial Chamber failed to give sufficient weight to the problems caused by assigning counsel to an accused against his will is therefore clearly wrong.

Ground 2 - The Trial Chamber’s exercise of its discretion was unreasonable in circumstances where: (f) The Trial Chamber failed to give sufficient weight to the possibility of assigning stand-by counsel to assist the Accused in representing himself.

66. Having argued in the immediately previous ground that counsel should not have been assigned to the Accused because the Accused will not cooperate with counsel, the Assigned Counsel in this ground suggest that somehow stand-by counsel would help. Why the Assigned Counsel consider that Accused would cooperate with standby counsel is not explained. Indeed, the Assigned Counsel, as Amici Curiae, previously argued that standby counsel would not assist for the very reason that the Accused would not cooperate with stand-by counsel any more than with Assigned Counsel.¹²⁰ The Prosecution had similarly argued that “the experience of this Tribunal in the Seselj case would indicate that assigning counsel to an accused who refuses to cooperate would achieve no reduction in the accused’s workload and that thus there would be no benefit adopting this mechanism in the present case”.¹²¹

67. There was thus no argument before the Trial Chamber that standby counsel would help alleviate the problem before it. In these circumstances, the Trial Chamber was correct not to consider or to assign stand-by counsel.

Ground 3 - The Trial Chamber erred in the exercise of its discretion as to the manner in which it requires Assigned Counsel to act, i.e. by requiring Assigned Counsel to examine the witnesses first, it being discretionary as to whether the Accused can then examine his witnesses thereafter

68. The Prosecution has previously submitted, in its Motion to Strike, that this ground of appeal should be struck from the Appeal Brief on the basis that certification was not sought or granted on the issue of the modalities according to which assignment is to operate. In their Response to the Prosecution’s Motion to Strike the Assigned Counsel firstly assert that there is no provision in the Rules to allow the Prosecution to seek to strike grounds from appeal prior to filing a response. On the contrary, the Prosecution submits that Rule 107 provides that the Rules of Procedure and Evidence apply mutatis mutandis to proceedings in the Appeals Chamber and therefore Rule 73(A) allows the Prosecution to move the Chamber for appropriate ruling or relief "at any time".

69. Indeed, as the Appeals Chamber is well aware, motions to disallow grounds of appeal improperly introduced in appeals from judgement when no leave to appeal has been granted are commonplace at this Tribunal.¹²² Such motions are granted where the Appeals Chamber finds that leave has not been sought.¹²³ The Prosecution submits that the same principle should apply in interlocutory appeals – where new grounds of appeal are raised in an interlocutory appeal for which certification has not been granted, the respondent should be entitled to move the Appeals Chamber to strike such grounds from the appeal brief and where the Appeals Chamber finds the respondent submissions to be correct, such motion should be granted.

70. In the alternative, the Prosecution hereby incorporates the arguments it makes in the Motion to Strike.

71. In the Response to Prosecution Motion to Strike the Assigned Counsel further argue that should the Appeals Chamber have regard to the Prosecution’s Motion, then the Order on Modalities constitutes an implementation mechanism of the Decision and should therefore be considered as part of the decision-making process.¹²⁴ The Order on Modalities and the Decision are clearly separate decisions, as indicated by the fact that the Trial Chamber sought argument on modalities after making its Oral Ruling.¹²⁵

72. The next argument the Assigned Counsel make is that “the order of questioning the Defence witnesses significantly affects the fair and expeditious conduct of the proceedings”¹²⁶ and that were the Decision and the Order on Modalities to be considered separately then “the interests of justice would not be served”.¹²⁷ The Assigned Counsel are thus seeking to justify in their Response to the Motion to Strike why certification should be granted. This is procedurally inappropriate. Should the Assigned Counsel wish the matters to be dealt with simultaneously by the Appeals Chamber, they should apply to the Trial Chamber for certification.

73. Briefly on the substance of the arguments raised, the Prosecution submits that allowing the Accused “to handle and question the witnesses first, with the Assigned counsel in ‘standby mode’” would not have lessened the burden on the Accused and would thus not have solved the problem before the Trial Chamber. Further, allowing the Accused to question first would replicate the practices and procedures in the first part of the trial where the Accused was able by one means or another to waste time without focusing on the real issues (so further argument on this point in paragraph XX below ) and probably to excite himself to the detriment of his health in so doing.

Additional reasons justifying the Trial Chamber’s Decision

Interests of Justice

74. The reasoning in the Decision notably fails to take account of the fact that Article 21(4)(d) expressly provides that legal assistance can be assigned to an accused “in any case where the interests of justice so require”. Previous jurisprudence of this Tribunal,¹²⁸ the International Tribunal for Rwanda (“ICTR”)¹²⁹ and the Special Court for Sierra Leone (“SCSL”)¹³⁰ suggests that Trial Chambers should determine whether counsel should be assigned to an accused on the basis of the interests of justice. In its Decision, the Trial Chamber rather based its decision to assign counsel on the requirement that the trial be conducted fairly.¹³¹

75. On the question of how these two standards differ, the Trial Chamber in the Seselj Decision said the following:

“The phrase “in the interests of justice” potentially has a broad scope. It includes the right to a fair trial, which is not only a fundamental right of the Accused, but also a fundamental interest of the Tribunal related to its own legitimacy. In the context of the right to a fair trial, the length of the case, its size and complexity need to be taken into account. The complex legal, evidential and procedural issues that arise in a case of this magnitude may fall outside the competence even of a legally qualified accused, especially where the accused is in detention without access to all the facilities he may need. Moreover, the Tribunal has a legitimate interest in ensuring that the trial proceedings in a timely manner without interruptions, adjournments or disruptions.”¹³²

76. Thus, according to the Trial Chamber in the Seselj case, the interests of justice is broader than the right to a fair trial. The interests of justice additionally incorporates the legitimate interest of the Tribunal in the timely completion of a trial. In effect, it encompasses the requirement that the trial be fair and that the requirement that the trial be expeditious.

77. The Prosecution observes that the Trial Chamber in this case did give consideration to the legitimate interest of the Tribunal in the timely completion of a trial by :

• recognising that disruption of a trial may give rise to the risk of a miscarriage of justice;¹³³ and
• finding that the combined effect of the risk to the health and life of the accused and of the prospect of disruption, was likely to undermine the integrity of the proceedings.¹³⁴

78. However, the Prosecution submits that there are additional factors “in the interests of justice” which additionally justify the assignment of counsel to this accused, and/or on free-standing grounds. Specifically:

(a) the conduct of the Accused throughout the trial;

(b) the Accused’s manipulation of the Trial timetable through non-adherence to his therapeutic plan; and

(c) the scale and complexity of this case.

79. The Prosecution will now address these additional grounds in turn.

Accused’s conduct

80. The reality is, simply, that a reasonable accused in a normal trial, and especially in a trial of the magnitude of this one would retain counsel to represent him. This Accused has, by failing to retain counsel, failed to act reasonably. This is a relevant consideration that has been raised in Oral Submissions before the Trial Chamber.¹³⁵ It is one of which the Chamber is aware, as indicated by comments made during the Oral Submissions.¹³⁶

81. To an extent it may be that the Trial Chamber and the Prosecution were too generous towards the Accused at earlier stages of the trial when assignment of counsel would in fact have been justified. To the extent that this may be seen to be error then it was error only apparent with the benefit of hindsight and was, indeed, error that accommodated the wishes of the Accused and of which he can now make no complaint.

82. Reflection on the history of this trial - and on other trials that have been considered in the course of research into the issue of assigned counsel generally¹³⁷ - has led the Prosecution firmly to conclude that courts composed of reasonable and rational judges may find themselves tempted to credit accused men and women appearing in front of them with reason and rationality of the kind that will understand the good sense of respecting the court's processes. Such credit is generally warranted because, although offenders may not in fact respect the law or those who enforce it, they determine to work within the criminal justice system in recognition of the fact that their own best interests, of obtaining an acquittal or reduced sentence, are best served in this way.¹³⁸

83. The Accused in this trial does not share this conception of his own best interests. He does not appear to be motivated by the desire to obtain an acquittal or a reduced sentence. He may rather be motivated by objectives entirely outside the proper purposes of the court – to defend the Serb nation and more specifically (although never overtly stated by him) his personal political record. It is possible that he may believe that a side product of defending these interests may be an acquittal or reduced sentence. However, it is more likely that he considers that this “illegal tribunal ” which is “waging war” against his country would never bring about this result.¹³⁹

84. Wrongly imputing a desire to minimise liability – to act as is rational or reasonable for an accused in a criminal trial - can lead, step by step, to a court's yielding some of its dignity and much of its authority to an accused. Imputing reasonableness but encountering unreasonableness drives the court to yield something in order to make progress – but after a time it becomes clear that the Accused has been driving the court’s agenda.¹⁴⁰ The court then has to act.

85. Long established legal systems have no difficulty in stemming the process described above in the very first stages of the process. For example, would the Supreme Court of the USA of the House of Lords really tolerate a litigant in person (assuming him or her to be intelligent and not suffering form mental limitation) to choose his own form of address for the judges of the court? It is unlikely that the U. S. Justice or U.K. Law Lord concerned would allow himself to be addressed as Mister simply because the litigant saw the publicity advantage in doing so and "dressed up" such offence in a protestation that he/she did not respect the court? The court would decline to be addressed other than in correct terms and the litigant would have to make his/her decision straight away: behave or forsake the right to self -representation.

86. Would such courts allow a pro se litigant to tell it time and again that it was illegal? A court may allow the conduct a few times warning of its unacceptableness but if the conduct continued, the court would likely deem the accused to be misconducting him/herself with the result that the removal of the right to self-representation had been lost.¹⁴¹

87. It may be that the Trial Chamber in this case has been somewhat shielded from the full effect of the Accused’s misconduct by the fact that it can switch off his microphone. But for that the Accused might well, by tirade after tirade, have lost his right to be heard personally at all early in the trial. However, having this mechanism of silencing the Accused mechanically at its disposal, to which the Chamber resorted frequently,¹⁴² does not lesson the reality and substance of the misconduct.

88. The only way to avoid the damaging and potentially embarrassing process whereby a court loses control to a pro se Accused is to operate an early nil-tolerance policy reflecting the court's true confidence in itself. Had the Prosecution had the benefit of hindsight and been able to forecast in advance (and to have argued persuasively) the consequences of the emerging pattern of the Accused’s behaviour, a pattern that is concerningly being replicated in other international criminal trials as pointed out in recent previous submissions by the Prosecution,¹⁴³ such an outcome would have been even more rigorously pursued. However, the fact that the Prosecution may have erred in not forecasting the way the process would develop and thus failed to persuade the Court to see the developing process and the need to stem it at an earlier stage does not now liberate the various impugned actions of the Accused from the negative qualities that demand the assignment of counsel.

89. With the above points of principle in mind, the Prosecution turns to analyse the conduct of the Accused and show how his conduct justifies the action requested of the Appeals Chamber – the addition into the grounds upon which the assignment of counsel is justified of the reality of misconduct by the Accused.

90. From the outset of this trial the Accused has refused to recognise the legitimacy of the Tribunal.¹⁴⁴ He has also, throughout, refused to engage in many aspects of the proceedings, most notably the filing of written submissions but also making oral submissions on many points.¹⁴⁵ For instance he has regularly refused to state his position on procedural points – notably, recently, at the Rule 15 bis hearing before President Meron to determine whether the Accused consented to the continuation of the trial with a new judge, a question to which the Accused responded as follows, which is reflective of his general attitude:

“you know full well, I believe - I hope - that I consider this Tribunal of yours to be illegal because it is not based on the Charter of the United Nations. Of course I have no intention of declaring my views on your administrative issues. As a matter of fact, I consider this so-called Tribunal to be a means of war against my country, which is still going on”¹⁴⁶.

91. To the extent that the Accused has engaged in the trial process, it has been to use the court for non-forensic purposes – to present political propositions to an audience outside the courtroom.¹⁴⁷ His disdain for the court process is evident in, inter alia:

• his refusal to abide by appropriate court etiquette¹⁴⁸, stretching, not infrequently, to offensiveness to officials in the courtroom (well evinced by his referring to the Trial Chamber as part of a Joint Criminal Enterprise during his opening address¹⁴⁹ - in the Prosecution’s submission such a comment amounts to contempt of court and alone may justify the assignment of counsel to the Accused¹⁵⁰);
• his use of his cross-examination time to verbally abuse Prosecution witnesses such as inter alia Nikola Samardzic,¹⁵¹ Stjepan Mesic¹⁵² and Wesley Clark ;¹⁵³
• his refusal to ask appropriate and relevant questions or to focus on relevant material, often extending to repetition of irrelevancies, which has constantly caused time to be wasted.¹⁵⁴ Prime examples of this practice have included the Accused’s cross-examination of William Walker,¹⁵⁵ Klaus Naumann,¹⁵⁶ and Frederick Abrahams ;¹⁵⁷
• his predilection for political speeches and long-winded lectures on historical events immaterial to the proceedings against him;¹⁵⁸
• his portraying of the trial as a political attack against Serbia rather than as a criminal trial for his individual role;¹⁵⁹
• his manipulation of the time available to him for cross-examination by wasting precious court time for an extended period of time before reverting to a relevant line of cross-examination towards the end of his allotted time in order to give himself grounds to ask for an extension of his cross-examination time.¹⁶⁰

92. The conduct of the Accused is also reflected in his response to the assignment of counsel to him.¹⁶¹ The Accused has refused to instruct the Assigned Counsel¹⁶² or to offer them any assistance¹⁶³. He has also refused to ask additional questions after Assigned Counsel has examined witnesses, even though the offer has been repeatedly made, on the grounds that he refuses to participate unless his right to represent himself is restored.¹⁶⁴

93. The Prosecution submits that by his conduct the Accused has abused and obstructed the timely and fair administration of justice in this case. It may be that the Prosecution did not argue forcefully enough in its submissions that the conduct of this Accused justified imposition of counsel.¹⁶⁵ However, upon reflection and by the time of Oral Submissions, the Prosecution had come to the clear conclusion that the reality of the Accused’s behaviour is that it has in fact clearly obstructed and manipulated the trial. The Prosecution presented this conclusion to the Trial Chamber, yet the Reasons fail to even refer to the Prosecution’s argument.

94. The Prosecution submits that it is appropriate and indeed necessary (in order to reflect the reality of the situation in this case) for the Appeals Chamber to add the Accused’s misconduct to the reasons justifying assignment of counsel in this case.

Manipulation

95. In its Reasons the Trial Chamber stated that the following:

“While the Trial Chamber was concerned to note that irregularities in the medical findings relating to non-adherence to the prescribed medical regime and the drugs found in the blood and in the possession of the Accused, the Chamber has not based this Decision on the Prosecution submission that the Accused has wilfully manipulated the trial timetable through these and other means.”¹⁶⁶

The Prosecution submits that it was erroneous for the Trial Chamber not to determine that the Accused had wilfully manipulated the trial timetable and that this factor was an additional reason reinforcing the need for counsel to be assigned

96. The medical reports, in particular the 26 August 2004 report from Dr. Dijkman, make it plain that the Accused has:

(a) failed faithfully to take medicine prescribed;

(b) taken medicine not prescribed; and,

(c) provided incorrect information to his doctors.

97. Above all, this particular report strongly suggests that the Accused’s sharp rises in blood pressure immediately prior to hearing dates over the past year is attributable to his failure to take his medication. The Prosecution submits that the only reasonable interpretation of this information, given the context of the Accused’s attitude and behaviour towards this court as set out above in paragraphs 90 - 93 above, is that the Accused, who has made it plain since practicalities relating to the defence case were first the subject of discussion in September 2003¹⁶⁷ that he wanted more time to prepare for presentation of his defence case, has manipulated his health to bring about this very result. As noted by the Trial Chamber in its Decision, the defence case scheduled to start on 8 June 2004 “was postponed on five occasions on account of the ill-health of the Accused”.¹⁶⁸ To reinforce this point, it is worth noting that during the Rule 15 bis hearing in March this year, the Accused suggested that at a minimum he was entitled to have until September/ October 2004 to prepare¹⁶⁹ – a result he in effect achieved.¹⁷⁰

Scale and complexity of this case

98. The scale and complexity of the case was one of the factors that led the Trial Chamber in the Seselj case to assign stand-by counsel to the accused in that case, even though, like the Accused Milosevic, the accused Seselj is a lawyer and has held high office in his state.¹⁷¹ This case is considerably larger and, if only by virtue of its scale, more complicated than the case against the accused Seselj. The Prosecution therefore submits that the scale and complexity of the case should be added to the grounds justifying the Trail Chamber’s decision to assign counsel.

99. This consideration may serve to identify the following general point, sometimes obscured by the inflammatory and emotional behaviour of the Accused. Although the court needs counsel to be assigned to the Accused to serve the interests of justice, to ensure fairness to all parties and to ensure the court’s dignity, the Accused has an equal or greater need for the assignment of counsel to present a case that is too large for him personally to handle and is a case, it may be judged, too emotionally troubling for him to deal with objectively.

Relief Requested

1. The Prosecution requests that the Appeals Chamber dismiss the Assigned Counsel’s appeal and reaffirm the Trial Chamber Decision to assign counsel to the Accused on the grounds of his ill-health.

2. In addition, or in the alternative, the Prosecution requests that the Appeals Chamber affirm the Trial Chamber’s Decision on the following additional grounds:

(a) the conduct of the Accused throughout the trial;

(b) the Accused’s manipulation of the Trial timetable through non-adherence to his therapeutic plan; and

(c) the scale and complexity of this case.

3. The Prosecution request leave to file a response which exceeds the page limit.

____________________
Geoffrey Nice
Principal Trial Attorney

Dated This 11th Day of October 2004
In The Hague,
The Netherlands