Da: ICDSM Italia
A: i c d s m - i t a l i a @ y a h o o g r o u p s . c o m
Subject: [icdsm-italia] 50 Lawyers from 12 Countries
Appeal against Imposition of Counsel on Milosevic
Inviato: 29/07/2004 18:24
[ Una cinquantina di avvocati, giuristi ed esperti di diritto
internazionale hanno gia' sottoscritto questa lettera, indirizzata
al Segretario generale dell'ONU e ad altre altissime personalita'
internazionali: in essa si esprime viva preoccupazione per la
cinica manovra in atto all'Aia, dove le gravi condizioni di salute
di Milosevic -- per le quali la Corte non aveva mai preso seri
provvedimenti prima d'ora -- vengono adesso usate a
pretesto per imporre misure che ledono i diritti di autodifesa
dell' "imputato". In particolare, nei prossimi giorni la Corte
potrebbe formalmente imporre a Milosevic un "avvocato
d'ufficio" allo scopo di impedirgli di gestire in prima persona
la successiva fase dibattimentale.
In tale senso si e' espressa anche Carla Del Ponte, con una
formale richiesta, dimostrando cosi' lo sfacciato interesse
della "pubblica accusa" in questa manovra.
Chi volesse aggiungere la propria adesione alla lettera puo'
contattare l'Associazione "Sloboda" di Belgrado
(slobodavk@...) oppure telefonicamente:
Tiphaine Dickson (Montreal) +1 450 263 7974
Christopher Black (Toronto) + 1 416 928 6611
Ramsey Clark (New York) +1 212 475 3232
Vladimir Krsljanin (Belgrade) +381 63 886 2301 ]
Da: "Vladimir Krsljanin"
Data: Gio 29 Lug 2004 17:51:25 Europe/Rome
Oggetto: URGENT: 50 Lawyers from 12 Countries Appeal against
Imposition of Counsel on Milosevic
***************************************************************
P R E S S R E L E A S E 29 July 2004
***************************************************************
50 LAWYERS FROM 12 COUNTRIES APPEAL AGAINST THE
IMPOSITION OF COUNSEL ON SLOBODAN MILOSEVIC
Ramsey Clark (USA), Sergei Baburin (Vice-President of Russian Duma),
Jacques Verges (France), Professor Paech and Friedrich Wolf (Germany),
Jitendra Sharma (India) - President of the International Association of
Democratic Lawyers and Professors Avramov and Cavoski from Belgrade
among those convinced that the intention of the Hague Tribunal must be
prevented since it "threatens the future of International Law and the
life of the defendant".
A letter, signed by 50 distinguished jurists, law professors and
international criminal lawyers from 12 countries has been sent today to
UN Secretary General, Security Council and General Assembly, as
well as to the Hague Tribunal, which works under UN auspices. The
signers state that "the envisaged imposition of counsel constitutes
an egregious violation of internationally recognized judicial rights,
and will serve only to aggravate Mr Milosevic's life-threatening illness
and further discredit these proceedings." In their argument, the lawyers
who joined their signatures to this initiative only within last couple
of
days, refer to the International Covenant of Civil and Political Rights,
US Supreme Court decisions, the Statute of the Hague Tribunal and
"Rivonia trials" of Nelson Mandela.
The letter, drafted by the international criminal lawyers from Canada,
Tiphaine Dickson and Christopher Black, engaged also in the
International Committee to Defend Slobodan Milosevic, points as
well that the Tribunal avoids to consider properly the requests for
provisional release of Slobodan Milosevic on the basis of the state of
his health and violates his rights in a way which only contributes to
his
illness. The petition also warns against the announced "radical reform"
of the proceedings, which is supposed to bring "changes of the rules
in the mid-trial to the defendant's detriment".
The described behavior of the Tribunal is characterized as "perversion
of both the letter and spirit of international law", which "the United
Nations should not tolerate".
The petitioners call upon their colleagues from other countries to join
the petition in the coming days in the interest of justice and
International Law.
The full text of the petition with the complete list of signatures is
given below. It can be also seen on the web site www.icdsm.org
New signers can e-mail their data on slobodavk@...
For additional information or statements, media representatives are
free to contact by phone:
Tiphaine Dickson (Montreal) +1 450 263 7974
Christopher Black (Toronto) + 1 416 928 6611
Ramsey Clark (New York) +1 212 475 3232
Vladimir Krsljanin (Belgrade) +381 63 886 2301
****************************************************************
IMPOSITION OF COUNSEL ON SLOBODAN MILOSEVIC THREATENS
THE FUTURE OF INTERNATIONAL LAW AND THE LIFE OF THE
DEFENDANT
H.E. Mr. KOFI ANNAN, Secretary General of the United Nations,
H.E. Mr. JULIAN ROBERT HUNTE, President of 58th Session of the UN
General Assembly
Romanian (Russian) Presidency of the UN Security Council,
To all members of the UN Security Council, to all members of the UN
Cc: International Criminal Tribunal for the former Yugoslavia
We the undersigned, jurists, law professors, and international criminal
lawyers, hereby declare our alarm and concern that the International
Criminal Tribunal for the Former Yugoslavia (ICTY) is preparing the
imposition of counsel upon an unwilling accused, Slobodan Milosevic.
This apparently punitive measure is contrary to international law,
incompatible with the adversarial system of criminal justice adopted by
the Security Council in Resolution 808, and ignores the court's
obligation to provide adequate medical care and provisional release
to the defendant. The ICTY, instead of taking appropriate measures
to alleviate Slobodan Milosevic's long-standing medical problems,
has compounded them. The ICTY has ignored repeated requests
for provisional release, to which everyone presumed innocent is
entitled, has imposed unrealistically short preparation periods on
the defence, and has permitted the introduction of an inordinate
quantity of Prosecution evidence, much of which was bereft of probative
value, thereby increasing Mr. Milosevic's level of stress, the principal
trigger of his illness. Chamber III has been informed of this by their
chosen cardiologist. The defendant has been denied examination by his
own physician, a further violation of his rights..
Now, having brought about the very degradation of President Milosevic's
health of which it had been warned, the ICTY seeks to impose counsel
upon him over his objections, rather than granting him provisional
release in order to receive adequate and proper medical care, a
reasonable measure reflected in domestic and international law and
practice. The envisaged imposition of counsel constitutes an
egregious violation of internationally recognized judicial rights, and
will serve only to aggravate Mr Milosevic's life-threatening illness
and further discredit these proceedings.
The right to defend oneself against criminal charges is central in both
international law and in the very structure of the adversarial system.
The fundamental, minimum rights provided to a defendant under
the Rome Statute of the International Criminal Court, as well as
the under the Statutes of the International Criminal Tribunals for
Rwanda and Yugoslavia, include the right to defend oneself
in person. The general economy of these provisions
all envisage the reality that rights are afforded to an accused, not
to a lawyer. The right afforded is to represent oneself against
charges brought by the Prosecution and subsidiary to this, to
receive the assistance of counsel, if an accused expresses the
wish to receive such assistance. However, if, as Slobodan
Milosevic, a defendant unequivocally expresses his
objection to representation by counsel, his right to represent himself
supercedes a court's or prosecutor's preference for assigning defence
counsel. As stated by the U.S. Supreme Court, with respect to the Sixth
Amendment of the Bill of Rights, which bears a striking similarity to
Article 21 of the ICTY Statute:
"It speaks of the 'assistance' of counsel, and an assistant, however
expert, is still an assistant. The language and spirit of the Sixth
Amendment contemplate that counsel, like the other defense
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; and the right to make a
defense is stripped of the personal character upon which the
Amendment insists."
Faretta v.California, 422 U.S. 806 (1975)
The ICTY Statute (as well as ICTR and ICC Statutes) similarly grant
"defence tools," such as the right to be represented by counsel, or
the right for counsel to be provided free of charge, if the accused
is indigent. The essence of the right to represent oneself is defeated
when the right to counsel becomes an obligation. As stated in
Farretta, supra:
"An unwanted counsel 'represents' the defendant only through a tenuous
and unacceptable legal fiction. Unless the accused has acquiesced in
such representation, the defense presented is not the defense
guaranteed him by the Constitution, for, in a very real sense, it is not
his defense."
Id.
Nor would the defence of Slobodan Milosevic be the defence guaranteed
him under international law, were he to have counsel imposed
upon him against his will.
The ICTY's general structure is that of an adversarial system of
criminal justice. Other legal influences have been integrated to
the Rules of Procedure and Evidence, but the nature of the
proceedings, which involve a prosecutor and defendant, as
parties, presenting evidence before a panel whose function is
that of arbiter, is unquestionably of an adversarial nature. In the
adversarial system, history has eloquently illustrated that
imposition of counsel on an unwilling accused is the practice of
political courts, and does not have its place in a democratic system
of justice, much less before an institution that will generate
precedent for a truly legitimate international criminal jurisdiction,
whose establishment has been the fruit of half a century of struggle:
"In the long history of British criminal jurisprudence, there was only
one tribunal that ever adopted a practice of forcing counsel
upon an unwilling defendant in a criminal proceeding. The tribunal
was the Star Chamber. That curious institution, which flourished
in the late 16th and early 17th centuries, was of mixed executive
and judicial character, and characteristically departed from
common-law traditions. For those reasons, and because it
specialized in trying 'political' offenses, the Star Chamber
has for centuries symbolized disregard of basic individual rights."
Faretta, Id.
Recently, the ICTY has ordered the Prosecutor, and only the
Prosecutor, to provide an opinion with respect to the imposition
of counsel in the absence of instructions or cooperation from
Mr. Milosevic. The Chamber has repeatedly referred to its
obligation to carry out a fair trial, and held, when it acknowledged
the right to self-representation in April 2003, that it
"has indeed an obligation to ensure that a trial is fair and
expeditious; moreover, where the health of the Accused is in
issue, that obligation takes on special significance." Article 21 of
the ICTY's Statute states that the Chamber must exercise this
obligation "with full respect for the rights of the accused." However,
expediency has become, as the defendant is set to present
essential and potentially embarrassing evidence, the Chamber's
apparently overwhelming concern.
Imposition of counsel, even "standby counsel", as appears to be
presently envisaged by the ICTY, will not alleviate any of the
difficulties facing the process: it will not treat, much less cure,
Slobodan Milosevic's malignant hypertension; it will not provide
the defendant with the time and conditions to prepare his case; it
will not redress the gross imbalance in the resources accorded
the Prosecutor and the defence, a redress required by the
principle of equality of arms, which the Court professes to recognize.
If counsel is imposed, Slobodan Milosevic's basic right to
represent himself will be violated, and he will still have only 150
days to present his defence, only half of the time allotted to the
Prosecution.
It is presently unclear what role an imposed counsel would play.
Whatever it may be, it is certain that there is no benefit to be gained
from going forward with this unprecedented measure. The ICTY
Statute provides the minimum right to be present for one's trial.
If Slobodan Milosevic's medical condition does not permit him to
attend the proceedings, and he does not waive his right to be
present, the ICTY does not have the jurisdiction to
hold hearings in his absence. Adjournments will continue as long as
measures are not taken to treat Mr. Milosevic's malignant
hypertension, a condition that cannot be treated by further violating
his rights, threatening to remove him from the process, or by
transferring his defence to a complete stranger.
The ICTY assigned three counsel to act as amicus curiae, and whose
stated role is to ensure, inter alia, a fair trial. It is doubtful an
imposed
counsel, even a "standby counsel" could provide any additional
assistance, without hijacking President Milosevic's defence, or
simply silencing him.
Furthermore, any reference to precedent with respect to the imposition
of standby counsel is inapposite. In the case of Dr Seselj, "standby
counsel" has been imposed, before the beginning of a trial, and
to prevent "disruption" of the proceedings.
President Slobodan Milosevic does not recognize the ICTY. He asserts
his innocence, and steadfastly criticizes the ICTY and NATO. He is
innocent until proven otherwise, and has every right to oppose the
legitimacy of this institution. By imposing counsel, the ICTY would
not only violate his right to self-representation, but his right to
present relevant evidence demonstrating the repeated violations
of Yugoslavia's sovereignty over a decade. These violations led
to NATO's illegal war of aggression against and bombing of
Yugoslavia - at the very height of which an indictment against
Slobodan Milosevic was confirmed by the ICTY - in a transparent bid to
deprive the Yugoslav people of a voice to negotiate peace and in order
to justify the continuation of that war of aggression.
The trial of Slobodan Milosevic before the ICTY has been adjourned until
August 31st, 2004. The Prosecutor has presented 295 witnesses in as many
days, all of which have been cross-examined by the defendant in person,
as he does not recognize the ICTY as a judicial body, and signals this
non-recognition by refusing to assign counsel. Slobodan Milosevic is a
law school graduate, was three times elected to the highest state
offices
of Serbia and Yugoslavia, and has by all accounts ably contested the
Prosecution's case. There is no question as to his mental fitness and
ability to waive his right to counsel. The ICTY may not enjoy President
Milosevic's criticism. Nonetheless, the public benefits of respecting
his right to self-representation far outweigh whatever embarrassment
might be visited upon the ICTY. Justice demands that Slobodan
Milosevic be given the right to demonstrate that the Security Council
institution detaining him is a political weapon against the sovereignty
and self-determination of the people of Serbia and all the peoples
of Yugoslavia.
Nelson Mandela represented himself during the infamous Rivonia trials
of the 1960s. Mandela mounted a political defence against apartheid,
yet even the South African judiciary did not impose counsel to
silence him. The ICTY is poised to threaten the future of international
law by doing what even apartheid-era judges dared not do - gag a
defendant and impair his ability to respond to a case. A case, we
note, made unwieldy, unintelligible and inexplicably lengthy by
the Prosecutor, with the Chamber's assent, and not
by Slobodan Milosevic. Indeed, most observers of the process have noted
that the Prosecutor failed to present compelling evidence to support
any of their charges; rather than stay the proceedings, the ICTY
permitted the Prosecutor to present additional witnesses, in
apparent desperation to make something stick.
The right to defend oneself in person is at the heart of the
International Covenant for Civil and Political Rights. The United
Nations should not tolerate these continuing violations of international
law in the name of expediency. Using a detained person's
inappropriately treated illness as an excuse to infringe upon his
rights and silence him, and embark upon a "radical reform"
of the proceedings-- as the Chamber is now considering, by
changing the rules in mid-trial, and to the defendant's detriment-- is a
perversion of both the letter and spirit of international law.
As jurists, we are deeply concerned that the planned imposition of
counsel constitutes an irrevocable precedent, and potentially deprives
any accused person of the right to present a meaningful defence
in the future. In the case of Slobodan Milosevic, this measure will
only increase his hypertension and place his life at risk.
The ICTY and Security Council will be held responsible for the
tragically predictable consequences of their actions.
Signed:
Tiphaine Dickson, Lawyer, Montreal, Quebec, Canada
Christopher Black, Lawyer, Toronto, Canada
Professor Smilja Avramov (Former President, International Law
Association), Belgrade, Serbia and Montenegro
Sergei Baburin, Doctor of Law, Professor, (Vice-President, State Duma
of the Federal Assembly of the Russian Federation), Moscow,
Russian Federation
Nicole Bergevin, Lawyer, Montreal, Quebec
Professor Aldo Bernardini, International Law, University of Teramo,
Italy
Professor Erich Buchholz, Lawyer, Berlin, Germany
Professor Kosta Cavoski, University of Belgrade, Belgrade, Serbia and
Montenegro
Professor Panayotis G. Charitos, LLD, International Law, Supreme Court
Attorney, Greece
Ramsey Clark, Former US Attorney General, New York, USA
Goran Cvetic, Lawyer, Belgrade, Serbia and Montenegro
Trendafil Danailov, Lawyer, (Former President, Sofia District Court),
Sofia, Bulgaria
Bjørn Elmquist, Lawyer, (Former MP), Copenhagen, Denmark
Professor Peter Erlinder, (past-President, National Lawyers Guild, NYC),
William Mitchell College of Law, St. Paul, MN, USA
Armin Fiand, Lawyer, Hamburg, Germany
Jeff Frazier, Lawyer, Houston, Texas, USA
Dr Mikhail Fomichenko, (Head, Center for Human Rights and Legal
Protection), Moscow, Russian Federation
Sergei Glotov, Doctor of Law, Professor, (Deputy President, Commission
on Administrative and Organizational Issues of the State Duma),
Moscow, Russian Federation
Dr Heinrich Hannover, Lawyer, Worpswede, Germany
Professor Yuri Ilyin, Lawyer, Moscow, Russian Federation
Viktor Ilyuchin, State Counselor of Justice of II Order, (Deputy
President, Commission for Security of the State Duma), Moscow,
Russian Federation
Strahinja Kastratovic, Lawyer, (Former President, Lawyers' Chamber of
Belgrade), Belgrade, Serbia and Montenegro
Professor Mikhail Kuznecov, Lawyer, (President, Tribunal for NATO
Crimes in Yugoslavia), Moscow, Russian Federation
Jennie Lusk, J.D., Lawyer, Albuquerque, New Mexico, USA
Mikhail Menev, Lawyer, (Former President, Sofia City Court), Sofia,
Bulgaria
Dr Alexander Mezyaev, International Law, (Deputy Head, Department of
Constitutional and International Law, Academy of Busyness, Kazan';
Member, Russian International Law Association; Member, Experts'
Council of the Ombudsman of the Republic of Tatarstan), Kazan',
Tatarstan, Russian Federation
Professor Dimitar Mikhailov, Criminal Law, (Former Member, UN Committee
Against Torture), Sofia, Bulgaria
Oksana Mikhalkina, Lawyer (President, Moscow Lawyers' Association),
Moscow, Russian Federation
Oleg Mironov, Doctor of Law, Professor, (Director, Institute for Human
Rights), Moscow, Russian Federation
Professor Claudio Moffa, Ordinario, University of Teramo, Italy
E. Olof, Lawyer, Zeist, Netherlands
H.E. Schmitt-Lermann, Lawyer, Munich, Germany
Professor Norman Paech, University for Econonomy and Politics, Hamburg,
Germany
Dmitrij Potockij, Lawyer, Moscow, Russian Federation
Professor Enyo Savov, International Law, Sofia, Bulgaria
Dr Heinz Juergen Schneider, Lawyer, Hamburg, Germany
Elena Semenovna, Lawyer, Moscow, Russian Federation
David K. Sergi, Lawyer, San Marcos, Texas, USA
Jitendra Sharma, Senior Advocate, Supreme Court of India (President,
International Association of Democratic Lawyers)
Dr Taras Shamba, Moscow, Russian Federation
Sergei Shtin, Lawyer, Moscow, Russian Federation
Valentina Shtraus, Lawyer, Rostov, Russian Federation
Professor Bhim Singh, Advocate, Supreme Court of India (President,
National Panthers Party)
N.M.P. Steijnen, Lawyer, Zeist, Netherlands
L.P.H. Stibru, Lawyer, Zeist, Netherlands
Dr Milan Tepavac, International Law, Belgrade, Serbia and Montenegro
Professor Andre Tremblay, Lawyer, Montreal, Quebec, Canada
Professor Velko Valkanov, (President, Bulgarian Committee for Human
Rights, Former MP), Sofia, Bulgaria
Jacques Verges, Advocate at the Court of Appeal, Paris, France
Dr Friedrich Wolff, Lawyer, Berlin, Germany
Professor Ivan Yatsenko (Vice-President, European Peace Forum), Moscow,
Russian Federation
****************************************************************
SLOBODA urgently needs your donation.
Please find the detailed instructions at:
http://www.sloboda.org.yu/pomoc.htm
To join or help this struggle, visit:
http://www.sloboda.org.yu/ (Sloboda/Freedom association)
http://www.icdsm.org/ (the international committee to defend Slobodan
Milosevic)
http://www.free-slobo.de/ (German section of ICDSM)
http://www.icdsm-us.org/ (US section of ICDSM)
http://www.icdsmireland.org/ (ICDSM Ireland)
http://www.pasti.org/milodif.htm (ICDSM Italy)
http://www.wpc-in.org/ (world peace council)
http://www.geocities.com/b_antinato/ (Balkan antiNATO center)
==========================
ICDSM - Sezione Italiana
c/o GAMADI, Via L. Da Vinci 27
00043 Ciampino (Roma)
tel/fax +39-06-4828957
email: icdsm-italia @ libero.it
Conto Corrente Postale numero 86557006
intestato ad Adolfo Amoroso, ROMA
causale: DIFESA MILOSEVIC
sito internet:
http://www.pasti.org/linkmilo.htm
A: i c d s m - i t a l i a @ y a h o o g r o u p s . c o m
Subject: [icdsm-italia] 50 Lawyers from 12 Countries
Appeal against Imposition of Counsel on Milosevic
Inviato: 29/07/2004 18:24
[ Una cinquantina di avvocati, giuristi ed esperti di diritto
internazionale hanno gia' sottoscritto questa lettera, indirizzata
al Segretario generale dell'ONU e ad altre altissime personalita'
internazionali: in essa si esprime viva preoccupazione per la
cinica manovra in atto all'Aia, dove le gravi condizioni di salute
di Milosevic -- per le quali la Corte non aveva mai preso seri
provvedimenti prima d'ora -- vengono adesso usate a
pretesto per imporre misure che ledono i diritti di autodifesa
dell' "imputato". In particolare, nei prossimi giorni la Corte
potrebbe formalmente imporre a Milosevic un "avvocato
d'ufficio" allo scopo di impedirgli di gestire in prima persona
la successiva fase dibattimentale.
In tale senso si e' espressa anche Carla Del Ponte, con una
formale richiesta, dimostrando cosi' lo sfacciato interesse
della "pubblica accusa" in questa manovra.
Chi volesse aggiungere la propria adesione alla lettera puo'
contattare l'Associazione "Sloboda" di Belgrado
(slobodavk@...) oppure telefonicamente:
Tiphaine Dickson (Montreal) +1 450 263 7974
Christopher Black (Toronto) + 1 416 928 6611
Ramsey Clark (New York) +1 212 475 3232
Vladimir Krsljanin (Belgrade) +381 63 886 2301 ]
Da: "Vladimir Krsljanin"
Data: Gio 29 Lug 2004 17:51:25 Europe/Rome
Oggetto: URGENT: 50 Lawyers from 12 Countries Appeal against
Imposition of Counsel on Milosevic
***************************************************************
P R E S S R E L E A S E 29 July 2004
***************************************************************
50 LAWYERS FROM 12 COUNTRIES APPEAL AGAINST THE
IMPOSITION OF COUNSEL ON SLOBODAN MILOSEVIC
Ramsey Clark (USA), Sergei Baburin (Vice-President of Russian Duma),
Jacques Verges (France), Professor Paech and Friedrich Wolf (Germany),
Jitendra Sharma (India) - President of the International Association of
Democratic Lawyers and Professors Avramov and Cavoski from Belgrade
among those convinced that the intention of the Hague Tribunal must be
prevented since it "threatens the future of International Law and the
life of the defendant".
A letter, signed by 50 distinguished jurists, law professors and
international criminal lawyers from 12 countries has been sent today to
UN Secretary General, Security Council and General Assembly, as
well as to the Hague Tribunal, which works under UN auspices. The
signers state that "the envisaged imposition of counsel constitutes
an egregious violation of internationally recognized judicial rights,
and will serve only to aggravate Mr Milosevic's life-threatening illness
and further discredit these proceedings." In their argument, the lawyers
who joined their signatures to this initiative only within last couple
of
days, refer to the International Covenant of Civil and Political Rights,
US Supreme Court decisions, the Statute of the Hague Tribunal and
"Rivonia trials" of Nelson Mandela.
The letter, drafted by the international criminal lawyers from Canada,
Tiphaine Dickson and Christopher Black, engaged also in the
International Committee to Defend Slobodan Milosevic, points as
well that the Tribunal avoids to consider properly the requests for
provisional release of Slobodan Milosevic on the basis of the state of
his health and violates his rights in a way which only contributes to
his
illness. The petition also warns against the announced "radical reform"
of the proceedings, which is supposed to bring "changes of the rules
in the mid-trial to the defendant's detriment".
The described behavior of the Tribunal is characterized as "perversion
of both the letter and spirit of international law", which "the United
Nations should not tolerate".
The petitioners call upon their colleagues from other countries to join
the petition in the coming days in the interest of justice and
International Law.
The full text of the petition with the complete list of signatures is
given below. It can be also seen on the web site www.icdsm.org
New signers can e-mail their data on slobodavk@...
For additional information or statements, media representatives are
free to contact by phone:
Tiphaine Dickson (Montreal) +1 450 263 7974
Christopher Black (Toronto) + 1 416 928 6611
Ramsey Clark (New York) +1 212 475 3232
Vladimir Krsljanin (Belgrade) +381 63 886 2301
****************************************************************
IMPOSITION OF COUNSEL ON SLOBODAN MILOSEVIC THREATENS
THE FUTURE OF INTERNATIONAL LAW AND THE LIFE OF THE
DEFENDANT
H.E. Mr. KOFI ANNAN, Secretary General of the United Nations,
H.E. Mr. JULIAN ROBERT HUNTE, President of 58th Session of the UN
General Assembly
Romanian (Russian) Presidency of the UN Security Council,
To all members of the UN Security Council, to all members of the UN
Cc: International Criminal Tribunal for the former Yugoslavia
We the undersigned, jurists, law professors, and international criminal
lawyers, hereby declare our alarm and concern that the International
Criminal Tribunal for the Former Yugoslavia (ICTY) is preparing the
imposition of counsel upon an unwilling accused, Slobodan Milosevic.
This apparently punitive measure is contrary to international law,
incompatible with the adversarial system of criminal justice adopted by
the Security Council in Resolution 808, and ignores the court's
obligation to provide adequate medical care and provisional release
to the defendant. The ICTY, instead of taking appropriate measures
to alleviate Slobodan Milosevic's long-standing medical problems,
has compounded them. The ICTY has ignored repeated requests
for provisional release, to which everyone presumed innocent is
entitled, has imposed unrealistically short preparation periods on
the defence, and has permitted the introduction of an inordinate
quantity of Prosecution evidence, much of which was bereft of probative
value, thereby increasing Mr. Milosevic's level of stress, the principal
trigger of his illness. Chamber III has been informed of this by their
chosen cardiologist. The defendant has been denied examination by his
own physician, a further violation of his rights..
Now, having brought about the very degradation of President Milosevic's
health of which it had been warned, the ICTY seeks to impose counsel
upon him over his objections, rather than granting him provisional
release in order to receive adequate and proper medical care, a
reasonable measure reflected in domestic and international law and
practice. The envisaged imposition of counsel constitutes an
egregious violation of internationally recognized judicial rights, and
will serve only to aggravate Mr Milosevic's life-threatening illness
and further discredit these proceedings.
The right to defend oneself against criminal charges is central in both
international law and in the very structure of the adversarial system.
The fundamental, minimum rights provided to a defendant under
the Rome Statute of the International Criminal Court, as well as
the under the Statutes of the International Criminal Tribunals for
Rwanda and Yugoslavia, include the right to defend oneself
in person. The general economy of these provisions
all envisage the reality that rights are afforded to an accused, not
to a lawyer. The right afforded is to represent oneself against
charges brought by the Prosecution and subsidiary to this, to
receive the assistance of counsel, if an accused expresses the
wish to receive such assistance. However, if, as Slobodan
Milosevic, a defendant unequivocally expresses his
objection to representation by counsel, his right to represent himself
supercedes a court's or prosecutor's preference for assigning defence
counsel. As stated by the U.S. Supreme Court, with respect to the Sixth
Amendment of the Bill of Rights, which bears a striking similarity to
Article 21 of the ICTY Statute:
"It speaks of the 'assistance' of counsel, and an assistant, however
expert, is still an assistant. The language and spirit of the Sixth
Amendment contemplate that counsel, like the other defense
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; and the right to make a
defense is stripped of the personal character upon which the
Amendment insists."
Faretta v.California, 422 U.S. 806 (1975)
The ICTY Statute (as well as ICTR and ICC Statutes) similarly grant
"defence tools," such as the right to be represented by counsel, or
the right for counsel to be provided free of charge, if the accused
is indigent. The essence of the right to represent oneself is defeated
when the right to counsel becomes an obligation. As stated in
Farretta, supra:
"An unwanted counsel 'represents' the defendant only through a tenuous
and unacceptable legal fiction. Unless the accused has acquiesced in
such representation, the defense presented is not the defense
guaranteed him by the Constitution, for, in a very real sense, it is not
his defense."
Id.
Nor would the defence of Slobodan Milosevic be the defence guaranteed
him under international law, were he to have counsel imposed
upon him against his will.
The ICTY's general structure is that of an adversarial system of
criminal justice. Other legal influences have been integrated to
the Rules of Procedure and Evidence, but the nature of the
proceedings, which involve a prosecutor and defendant, as
parties, presenting evidence before a panel whose function is
that of arbiter, is unquestionably of an adversarial nature. In the
adversarial system, history has eloquently illustrated that
imposition of counsel on an unwilling accused is the practice of
political courts, and does not have its place in a democratic system
of justice, much less before an institution that will generate
precedent for a truly legitimate international criminal jurisdiction,
whose establishment has been the fruit of half a century of struggle:
"In the long history of British criminal jurisprudence, there was only
one tribunal that ever adopted a practice of forcing counsel
upon an unwilling defendant in a criminal proceeding. The tribunal
was the Star Chamber. That curious institution, which flourished
in the late 16th and early 17th centuries, was of mixed executive
and judicial character, and characteristically departed from
common-law traditions. For those reasons, and because it
specialized in trying 'political' offenses, the Star Chamber
has for centuries symbolized disregard of basic individual rights."
Faretta, Id.
Recently, the ICTY has ordered the Prosecutor, and only the
Prosecutor, to provide an opinion with respect to the imposition
of counsel in the absence of instructions or cooperation from
Mr. Milosevic. The Chamber has repeatedly referred to its
obligation to carry out a fair trial, and held, when it acknowledged
the right to self-representation in April 2003, that it
"has indeed an obligation to ensure that a trial is fair and
expeditious; moreover, where the health of the Accused is in
issue, that obligation takes on special significance." Article 21 of
the ICTY's Statute states that the Chamber must exercise this
obligation "with full respect for the rights of the accused." However,
expediency has become, as the defendant is set to present
essential and potentially embarrassing evidence, the Chamber's
apparently overwhelming concern.
Imposition of counsel, even "standby counsel", as appears to be
presently envisaged by the ICTY, will not alleviate any of the
difficulties facing the process: it will not treat, much less cure,
Slobodan Milosevic's malignant hypertension; it will not provide
the defendant with the time and conditions to prepare his case; it
will not redress the gross imbalance in the resources accorded
the Prosecutor and the defence, a redress required by the
principle of equality of arms, which the Court professes to recognize.
If counsel is imposed, Slobodan Milosevic's basic right to
represent himself will be violated, and he will still have only 150
days to present his defence, only half of the time allotted to the
Prosecution.
It is presently unclear what role an imposed counsel would play.
Whatever it may be, it is certain that there is no benefit to be gained
from going forward with this unprecedented measure. The ICTY
Statute provides the minimum right to be present for one's trial.
If Slobodan Milosevic's medical condition does not permit him to
attend the proceedings, and he does not waive his right to be
present, the ICTY does not have the jurisdiction to
hold hearings in his absence. Adjournments will continue as long as
measures are not taken to treat Mr. Milosevic's malignant
hypertension, a condition that cannot be treated by further violating
his rights, threatening to remove him from the process, or by
transferring his defence to a complete stranger.
The ICTY assigned three counsel to act as amicus curiae, and whose
stated role is to ensure, inter alia, a fair trial. It is doubtful an
imposed
counsel, even a "standby counsel" could provide any additional
assistance, without hijacking President Milosevic's defence, or
simply silencing him.
Furthermore, any reference to precedent with respect to the imposition
of standby counsel is inapposite. In the case of Dr Seselj, "standby
counsel" has been imposed, before the beginning of a trial, and
to prevent "disruption" of the proceedings.
President Slobodan Milosevic does not recognize the ICTY. He asserts
his innocence, and steadfastly criticizes the ICTY and NATO. He is
innocent until proven otherwise, and has every right to oppose the
legitimacy of this institution. By imposing counsel, the ICTY would
not only violate his right to self-representation, but his right to
present relevant evidence demonstrating the repeated violations
of Yugoslavia's sovereignty over a decade. These violations led
to NATO's illegal war of aggression against and bombing of
Yugoslavia - at the very height of which an indictment against
Slobodan Milosevic was confirmed by the ICTY - in a transparent bid to
deprive the Yugoslav people of a voice to negotiate peace and in order
to justify the continuation of that war of aggression.
The trial of Slobodan Milosevic before the ICTY has been adjourned until
August 31st, 2004. The Prosecutor has presented 295 witnesses in as many
days, all of which have been cross-examined by the defendant in person,
as he does not recognize the ICTY as a judicial body, and signals this
non-recognition by refusing to assign counsel. Slobodan Milosevic is a
law school graduate, was three times elected to the highest state
offices
of Serbia and Yugoslavia, and has by all accounts ably contested the
Prosecution's case. There is no question as to his mental fitness and
ability to waive his right to counsel. The ICTY may not enjoy President
Milosevic's criticism. Nonetheless, the public benefits of respecting
his right to self-representation far outweigh whatever embarrassment
might be visited upon the ICTY. Justice demands that Slobodan
Milosevic be given the right to demonstrate that the Security Council
institution detaining him is a political weapon against the sovereignty
and self-determination of the people of Serbia and all the peoples
of Yugoslavia.
Nelson Mandela represented himself during the infamous Rivonia trials
of the 1960s. Mandela mounted a political defence against apartheid,
yet even the South African judiciary did not impose counsel to
silence him. The ICTY is poised to threaten the future of international
law by doing what even apartheid-era judges dared not do - gag a
defendant and impair his ability to respond to a case. A case, we
note, made unwieldy, unintelligible and inexplicably lengthy by
the Prosecutor, with the Chamber's assent, and not
by Slobodan Milosevic. Indeed, most observers of the process have noted
that the Prosecutor failed to present compelling evidence to support
any of their charges; rather than stay the proceedings, the ICTY
permitted the Prosecutor to present additional witnesses, in
apparent desperation to make something stick.
The right to defend oneself in person is at the heart of the
International Covenant for Civil and Political Rights. The United
Nations should not tolerate these continuing violations of international
law in the name of expediency. Using a detained person's
inappropriately treated illness as an excuse to infringe upon his
rights and silence him, and embark upon a "radical reform"
of the proceedings-- as the Chamber is now considering, by
changing the rules in mid-trial, and to the defendant's detriment-- is a
perversion of both the letter and spirit of international law.
As jurists, we are deeply concerned that the planned imposition of
counsel constitutes an irrevocable precedent, and potentially deprives
any accused person of the right to present a meaningful defence
in the future. In the case of Slobodan Milosevic, this measure will
only increase his hypertension and place his life at risk.
The ICTY and Security Council will be held responsible for the
tragically predictable consequences of their actions.
Signed:
Tiphaine Dickson, Lawyer, Montreal, Quebec, Canada
Christopher Black, Lawyer, Toronto, Canada
Professor Smilja Avramov (Former President, International Law
Association), Belgrade, Serbia and Montenegro
Sergei Baburin, Doctor of Law, Professor, (Vice-President, State Duma
of the Federal Assembly of the Russian Federation), Moscow,
Russian Federation
Nicole Bergevin, Lawyer, Montreal, Quebec
Professor Aldo Bernardini, International Law, University of Teramo,
Italy
Professor Erich Buchholz, Lawyer, Berlin, Germany
Professor Kosta Cavoski, University of Belgrade, Belgrade, Serbia and
Montenegro
Professor Panayotis G. Charitos, LLD, International Law, Supreme Court
Attorney, Greece
Ramsey Clark, Former US Attorney General, New York, USA
Goran Cvetic, Lawyer, Belgrade, Serbia and Montenegro
Trendafil Danailov, Lawyer, (Former President, Sofia District Court),
Sofia, Bulgaria
Bjørn Elmquist, Lawyer, (Former MP), Copenhagen, Denmark
Professor Peter Erlinder, (past-President, National Lawyers Guild, NYC),
William Mitchell College of Law, St. Paul, MN, USA
Armin Fiand, Lawyer, Hamburg, Germany
Jeff Frazier, Lawyer, Houston, Texas, USA
Dr Mikhail Fomichenko, (Head, Center for Human Rights and Legal
Protection), Moscow, Russian Federation
Sergei Glotov, Doctor of Law, Professor, (Deputy President, Commission
on Administrative and Organizational Issues of the State Duma),
Moscow, Russian Federation
Dr Heinrich Hannover, Lawyer, Worpswede, Germany
Professor Yuri Ilyin, Lawyer, Moscow, Russian Federation
Viktor Ilyuchin, State Counselor of Justice of II Order, (Deputy
President, Commission for Security of the State Duma), Moscow,
Russian Federation
Strahinja Kastratovic, Lawyer, (Former President, Lawyers' Chamber of
Belgrade), Belgrade, Serbia and Montenegro
Professor Mikhail Kuznecov, Lawyer, (President, Tribunal for NATO
Crimes in Yugoslavia), Moscow, Russian Federation
Jennie Lusk, J.D., Lawyer, Albuquerque, New Mexico, USA
Mikhail Menev, Lawyer, (Former President, Sofia City Court), Sofia,
Bulgaria
Dr Alexander Mezyaev, International Law, (Deputy Head, Department of
Constitutional and International Law, Academy of Busyness, Kazan';
Member, Russian International Law Association; Member, Experts'
Council of the Ombudsman of the Republic of Tatarstan), Kazan',
Tatarstan, Russian Federation
Professor Dimitar Mikhailov, Criminal Law, (Former Member, UN Committee
Against Torture), Sofia, Bulgaria
Oksana Mikhalkina, Lawyer (President, Moscow Lawyers' Association),
Moscow, Russian Federation
Oleg Mironov, Doctor of Law, Professor, (Director, Institute for Human
Rights), Moscow, Russian Federation
Professor Claudio Moffa, Ordinario, University of Teramo, Italy
E. Olof, Lawyer, Zeist, Netherlands
H.E. Schmitt-Lermann, Lawyer, Munich, Germany
Professor Norman Paech, University for Econonomy and Politics, Hamburg,
Germany
Dmitrij Potockij, Lawyer, Moscow, Russian Federation
Professor Enyo Savov, International Law, Sofia, Bulgaria
Dr Heinz Juergen Schneider, Lawyer, Hamburg, Germany
Elena Semenovna, Lawyer, Moscow, Russian Federation
David K. Sergi, Lawyer, San Marcos, Texas, USA
Jitendra Sharma, Senior Advocate, Supreme Court of India (President,
International Association of Democratic Lawyers)
Dr Taras Shamba, Moscow, Russian Federation
Sergei Shtin, Lawyer, Moscow, Russian Federation
Valentina Shtraus, Lawyer, Rostov, Russian Federation
Professor Bhim Singh, Advocate, Supreme Court of India (President,
National Panthers Party)
N.M.P. Steijnen, Lawyer, Zeist, Netherlands
L.P.H. Stibru, Lawyer, Zeist, Netherlands
Dr Milan Tepavac, International Law, Belgrade, Serbia and Montenegro
Professor Andre Tremblay, Lawyer, Montreal, Quebec, Canada
Professor Velko Valkanov, (President, Bulgarian Committee for Human
Rights, Former MP), Sofia, Bulgaria
Jacques Verges, Advocate at the Court of Appeal, Paris, France
Dr Friedrich Wolff, Lawyer, Berlin, Germany
Professor Ivan Yatsenko (Vice-President, European Peace Forum), Moscow,
Russian Federation
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==========================
ICDSM - Sezione Italiana
c/o GAMADI, Via L. Da Vinci 27
00043 Ciampino (Roma)
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