Assisting an accused to represent himself

Journal of International Criminal Justice

Volumn 4, Issue 1, 2006, Pages 47-63

  Tuinstra, Jarinde Temminck ^a  

^a UNIVERSITY OF AMSTERDAM   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33645000884     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqi097     Document Type: Article

References (120)

1. See M.P. Scharf, 'Do Former Leaders Have an International Right to Self-Representation in War Crimes Trials?', 20 Ohio State Journal on Dispute Resolution (2005) 3-41.
2. The text of Art. 20(4)(d) ICTRSt. and Art. 17(4)(d) SCSLSt. is almost identical.
3. See Art. 6(3)(c) ECHR and Art. 14(3)(d) ICCPR. Cf. also Human Rights Committee (HRC), CCPR General Comment No, 13,13 April 1984.
4. The accused's perspective has been clarified sufficiently by others. See, e.g. M.R. Damaška, 'Assignment of Counsel and Perceptions of Fairness', 3 Journal of International Criminal Justice (JICJ) (2005) 3-8
5. N.H.B.J. Jorgensen, 'The Right of the Accused to Self-Representation before International Criminal Tribunals', 98 American Journal of International Law (2004) 711-726
6. M. Koskenniemi, 'Between Impunity and Show Trials', 6 Max Planck Yearbook of United Nations Law (2002) 1-35
7. G. Sluiter, 'Fairness and the Interests of Justice: Illusive Concepts in the Milošević Case', 3 JICJ (2004) 1-11
8. Scharf, supra note 1
9. R. Haveman, 'De dwangverdediging van Milosevic', Strafblad (2005) 204-212.
10. See Judgment, Separate and Dissenting Opinion of Judge Cassese, Erdemović (IT-96-22-A), Appeals Chamber, 7 October 1997, §4.
11. Ibid.
12. P. Robinson, 'Ensuring Fair and Expeditious Trials at the International Criminal Tribunal for the Former Yugoslavia', 11 European Journal of International Law (2000) 569-589, at 580.
13. Cf. s. 41 of the Austrian Code of Criminal Procedure; Art. 317 of the French Code of Criminal Procedure; s. 140 of the German Code of Criminal Procedure; Art. 97 of the Italian Code of Criminal Procedure. See Prosecution's Submissions on Self-Representation, Krajišnik (IT-00-39-T), 31 May 2005, § 42 ff.
14. Judges must confirm that the accused resorts to his right to self-representation 'voluntarily and intelligently'. Faretta v. California, 422 United States Reports (US) 806 (1975), at 807. Moreover, there are no high demands for procedural capacity: When an accused is mentally competent to stand trial, he is competent to choose self-representation.
15. See Godinez, Warden v. Moran, 509 US 389 (1993), at 399 and 400.
16. For a thorough analysis, see M.R. Damaška, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven: Yale University Press, 1986), at 83, 90, 94, 105, 106, 142, 153 and 174.
17. Hill v. Spain, HRC, UN doc. CCPR/C/59/D/526/1993, 2 April 1997; Melin e France, ECHR (1993) Series A, No. 261-A.
18. So far, international criminal courts have made an effort to ascertain whether an accused's request for self-representation was unequivocal and made knowingly and voluntarily, as required under common law, e.g. Appeals Judgment, Kambanda (ICTR-97-23-A), Appeals Chamber, 19 October 2000, § 16 ff
19. Appeals Chamber Judgment, Akayesu (ICTR-96-4-A), Appeals Chamber, 1 June 2001, §65
20. Reasons for Oral Decision Denying Mr Krajišnik's Request to Proceed Unrepresented by Counsel, Krajišnik (IT-00-39-T), Trial Chamber, 18 August 2005 (hereinafter: Reasons for Oral Decision)
21. Decision following Registrar's Notification of Radovan Stankovic's Request for Self-Representation, Janković and Stanković (IT-96-23/ 2-PT), Trial Chamber, 19 August 2005, § 16-18 (hereinafter: Decision following Registrar's Notification)
22. Decision on the Application of Samuel Hinga Norman for Self Representation under Article 17(4)(d) of the Statute of the Special Court, Norman, Fofana and Kondewa (SCSL-04-14-T), Trial Chamber, 8 June 2004, §20 (hereinafter: Decision on the Application)
23. Decision on Application for Leave to Appeal Gbao - Decision on Application to Withdraw Counsel, Sesay, Kallon and Gbao (SCSL-2004-15-T), Trial Chamber, 4 August 2004, §56
24. Gbao - Decision on Appeal against Decision on Withdrawal of Counsel, Sesay, Kallon and Gbao (SCSL-04-15-AR73), Appeals Chamber, 23 November 2004, §49.
25. Decision on Request by Samuel Hinga Norman for Additional Resources to Prepare his Defence, Norman, Fofana and Kondewa (SCSL-04-14-T), Trial Chamber, 23 June 2004, § 12-16 (hereinafter: Decision on Request . For security reasons, Norman had no access to materials from the internet or the SCSL Network, other than through his standby counsel or the Defence Office.
26. Order Concerning the Preparation and Presentation of the Defence Case, Milošević (IT-02-54-T), Trial Chamber, 17 September 2003. Abuses in the use of these facilities has provoked their removal, e.g. Norman lost some of his facilities after he had contacted the press without the Court's consent.
27. See Decision Prohibiting Visits, Norman, Fofana and Kondewa (SCSL-04-14-T), Trial Chamber, 8 November 2004.
28. See ICTY Weekly Press Briefing of 3 March 2004.
29. Order, Milošević (IT-02-54-T), Trial Chamber, 16 April 2002.
30. Cf. Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, Milošević (IT-02-54-T), Trial Chamber, 4 April 2003, §5 (hereinafter: Reasons for Decision on the Prosecution Motion).
31. Decision on Motion Number 21, Šešelj (IT-03-67-PT), Trial Chamber, 27 October 2003 (hereinafter: Decision on Motion). However, the Tribunal does not recognize Šešelj's legal advisor and legal assistant and refuses to have them attend all hearings. Decision on Prosecution's Motion for Order Appointing Counsel to Assist Vojislav Seselj with his Defence, Šešelj (IT-03-67-PT), Trial Chamber, 9 May 2003, §23 (hereinafter: Decision on Prosecution's Motion).
32. Ibid.
33. See ICTY Weekly Press Briefing, supra note 15.
34. See Decision on Request, Norman, Fofana and Kondewa, supra note 13, § 15.
35. Reasons for Oral Decision, Krajišnik, supra note 12, §33.
36. Ibid., footnote Ixi.
37. In Stanković, the Chamber insisted that counsel would be imposed, because of the accused's 'deliberate and serious misbehaviour' before the Tribunal, Decision following Registrar's Notification, Janković and Stanković, supra note 12, §25.
38. Concurring Opinion of Mr Justice Brennan, in Illinois v. Allen, 397 US 337 (1970), at 350-351.
39. Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defense Counsel, Milošević (IT-02-54-AR73.7), Appeals Chamber, 1 November 2004, §17 (hereinafter: Decision on Interlocutory Appeal).
40. For instance, the amici curiae in the Milošević case filed a Rule 98bis motion (similar to a 'no case to answer' procedure) on their own initiative. Although it is open to them to make any submission that Milošević might make, it will remain unknown whether such and other filings would interfere with Milošević's own defence strategy.
41. S. Zappalà. Human Rights in International Criminal Proceedings (Oxford: OUP, 2003), at 63.
42. In addition, defence teams usually have at their disposal one legal assistant and one investigator.
43. Order inviting Designation of Amicus Curiae, Milošević (IT-02-54-T),Trial Chamber, 30 August 2001.
44. Ibid.
45. Order concerning Amici Curiae, Milošević (IT-02-54-T), Trial Chamber, 11 January 2002.
46. Order inviting Designation of Amicus Curiae, Milošević, supra note 29.
47. Order concerning Amici Curiae, Milošević, supra note 31.
48. As concluded by Kay. See Milošević, 2 September 2004, Transcript, at 32387.
49. Ibid., at 32387.
50. Ibid., Judge Kwon, at 32388.
51. Amici Curiae Submissions in Response to the Trial Chamber's "Further Order on Future Conduct of the Trial Concerning Assignment of Defence Counsel" Dated 6 August 2004, Milošević, Amici Curiae, 13 August 2004, §18(iii)(a) (hereinafter. Amici Curiae Submissions).
52. Decision on the Interlocutory Appeal by the Amici Curiae against the Trial Chamber order Concerning the Presentation and Preparation of the Defence Case, Separate Opinion of Judge Shahabuddeen, Miloševic (IT-02-54-AR73.6), Appeals Chamber, 20 January 2004, § 1, 2 and 11.
53. ICTY, Code of Professional Conduct for Counsel Appearing before the International Tribunal (hereinafter: ICTY Code of Conduct). See, e.g. Decision, Milošević (IT-02-54), Registrar, 11 October 2002.
54. Decision Concerning an Amicus Curiae, Milošević (IT-02-54-T), Trial Chamber, 10 October 2002.
55. Ibid.
56. Decision, Milošević, supra note 39. For instance, the former amicus remained under a duty of confidentiality, in accordance with the Code of Conduct.
57. ICTR. Code of Professional Conduct for Defence Counsel, Art. 19
58. ICTY Code of Conduct, Art. 4.
59. Cf. Dutch Disciplinary Appeals Tribunal, 12 March 2004.
60. Decision on Prosecution's Motion, Šešelj, supra note 17, §20. According to the Trial Chamber, in 'the interests of justice' is included '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 that 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 proceeds in a timely manner without interruptions, adjournments or disruptions' ( §21).
61. Without wishing to represent himself, Barayagwiza had instructed his lawyers not to appear in court to represent him.
62. This provision equates to Art. 21(4)(d) ICTYSt. and Art. 17(4)(d) SCSLSt.
63. Decision on Defence Counsel Motion to Withdraw, Concurring and Separate Opinion of Judge Gunawardana, Barayagwiza (ICTR-97-19-T), Trial Chamber, 2 November 2000.
64. McKaskle v. Wiggins, 465 US 168 (1984), at 183 and 184. Cf. also Judge Gunawardana in Barayagwiza, ibid.,
65. and Decision on the Application, Norman, Fofana and Kondewa, supra note 12, §22.
66. Ibid., at 185.
67. Faretta v. California, supra note 9, at 835.
68. See Decision on Prosecution's Motion, Šešelj, supra note 17, § 22-26.
69. Consequential Order on Assignment and Role of Standby Counsel, Norman, Fofana and Kondewa (SCSL-04-14-T), Trial Chamber, 14 June 2004 (hereinafter: Consequential Order on Assignment).
70. Decision on the Application, Norman, Fofana and Kondewa, supra note 12, §19.
71. Consequential Order on Assignment, Norman, Fofana and Kondewa, supra note 53
72. Decision on Prosecution's Motion, Šešelj, supra note 17, §30.
73. Cf. also Decision following Registrar's Notification, Janković and Stanković, supra note 12, §21.
74. Decision on Prosecution's Motion, Šešelj supra note 17, footnote 56.
75. Ibid., §30.
76. Decision on Prosecution's Motion, Šešelj, supra note 17, §28.
77. Consequential Order on Assignment, Norman, Fofana and Kondewa, supra note 53
78. Decision on Prosecution's Motion, Šešelj, supra note 17, §28.
79. Ibid.
80. Consequential Order on Assignment, Norman, Fofana and Kondewa, supra note 53
81. Decision on Prosecution's Motion, Šešelj, supra note 17, §30.
82. The position of standby counsel is subject to change and safeguards to the advantage of the accused can be removed on a case-by-case basis. Initially, in Šešelj, standby counsel was required to speak the accused's language. When Šešelj protested against his second standby counsel's failure to meet this requirement, the majority of the Judges simply decided to remove it. See Decision on Prosecution's Motion, Šešelj, supra note 17
83. Decision on the Accused's Motion to Re-examine the Decision to Assign Standby Counsel, Šešelj, Trial Chamber, 1 March 2005; Dissenting Opinion of Judge Antonetti, appended to same Decision.
84. Consequential Order on Assignment, Norman, Fofana and Kondewa, supra note 53
85. Decision on Prosecution's Motion, Šešelj, supra note 17, § 27-28.
86. Special Court For Sierra Leone Code of Professional Conduct for Counsel with the Right of Audience before the Special Court for Sierra Leone Adopted on 14 May 2005. This code also applies to prosecution counsel, amicus curiae and 'counsel representing a witness or any other person before the Special Court' (Art. 1(A)).
87. Cf. Faretta, where it was held: 'An unwanted counsel "represents" the defendant only through a tenuous and unacceptable legal fiction.... the defense presented... is not his defense', Faretta v. California, supra note 9, at 821.
88. Consequential Order on Assignment, Norman, Fofana and Kondewa, supra note 53.
89. Decision on Prosecution's Motion, Šešelj, supra note 17, §28.
90. Cf. Dissenting Opinion of Judge Antonetti, Šešelj, supra note 63, §12.
91. Jørgensen prefers to have both standby counsel and amicus curiae appointed to the accused. Jørgensen, supra note 4, at 726.
92. In Šešelj, the Chamber left open the possibility to appoint amici curiae in the course of the trial.See Decision on Prosecution's Motion, Šešelj, supra note 17, F. Disposition.
93. Reasons for Decision on Assignment of Defence Counsel, Milošević (IT-02-54-T), Trial Chamber, 22 September 2004, §69 (hereinafter: Reasons for Decision on Assignment).
94. Ibid.
95. For instance, the Chamber held that Milošević had 'the right, at any time, to make a reasonable request to the Trial Chamber to consider allowing him to appoint counsel', Reasons for Decision on Assignment, Milošević, supra note 70, §69.
96. Emphasis added.
97. Reasons for Decision on Assignment. Milošević, supra note 70, § 33.
98. It is rather disturbing that both the Appeals and the Trial Chambers do not make a distinction between intentional and unintentional obstructions by the accused. Cf. Damaška, supra note 4, at 6.
99. He decided again which witnesses to present, and could question them before court assigned counsel; he could argue 'any proper motions'; give a closing statement; and make the basic strategic decisions about the presentation of his case. Decision on Interlocutory Appeal, Milošević, supra note 25, §19.
100. For the duties of Defence Counsel, see Art. 8(B) ICTY Code of Conduct.
101. Amici Curiae Submissions, Milošević, supra note 37, §18(iii)(d).
102. Decision on Assigned Counsel's Motion for Withdrawal, Milošević (IT-02-54-T), Trial Chamber, 7 December 2004, §26.
103. Decision Affirming the Registrar's Denial of Assigned Counsel's Application to withdraw, Milošević (IT-02-54-T), §10.
104. Ibid., §9.
105. Also Art. 18(B) SCSL Code of Conduct limits the possibilities for standby counsel to withdraw. Whereas, in Šešelj, a standby counsel was allowed to withdraw because the accused had made allegations against him and his family.
106. The amici themselves once submitted:'...conversion of the role of the Amici Curiae to imposed or assigned counsel would alter the original role considerably and could be interpreted as professionally embarrassing, given the Amici Curiae's previous arguments upon the issue', Amici Curiae Submissions, Milošević, supra note 37, § 18(iii)(b).
107. Cf. D.D. Ntanda Nsereko, 'Ethical Obligations of Counsel in Criminal Proceedings: Representing an Unwilling Client', 12 Criminal Law Forum (2001) 487-507.
108. See Damaška, supra note 10, at 142.
109. Reasons for Decision on Assignment, Milošević, supra note 70, § 70.
110. Zappalà, supra note 27, at 64.
111. Decision on Assigned Counsel's Motion for Withdrawal, Milošević, supra note 78, §32.
112. Decision Affirming the Registrar's Denial, Milošević, supra note 79, §13.
113. Ibid.
114. Reasons for Decision on the Prosecution Motion, Milošević, supra note 16, §38.
115. Cf. Jørgensen, supra note 4, at 726.
116. Cf. Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statements, Milošević (IT-02-54-AR73.4), Appeals Chamber, 21 October 2003, §22.
117. Even though the international criminal court's statutes permit for counsel to be assigned in the interests of justice in such a case, see Art. 21(4)(d) ICTYSt., Art. 20(4)(d) ICTRSt. and Art. 17(4)(d) SCSLSt.
118. See also Rule 45 quarter ICTR RPE.
119. See also Rule 60(B) SCSL RPE.
120. Cf. C. Buisman, B. Gumpert and M. Hallers, 'Trial and Error How Effective is Legal Representation in International Criminal Proceedings?', 5 International Criminal Law Review (2005) 1-82, at 32.