SCSL: accused has the right to be heard at the conclusion of the trial

In the Taylor case, the Defence refused to file the accused’s final trial brief on the date required by the Chamber referring to the “instruction” of his client. Instead, the brief was submitted twenty days beyond the deadline.
The Trial Chamber refused to accept the brief, reasoning that it had received no submissions by the Defence which would cause the Trial Chamber to review or revise the scheduling order.

Last week, the Appeals Chamber reversed the decision, ordered to accept the accused’s final trial brief, and instructed the Trial Chamber to set a date to hear the Defence closing argument.

The Appeals Chamber noted that, under the practice of the SCSL, the final trial briefs of the parties contain the entire closing argument and the oral argument is reserved for highlighting details from that brief.
Filing the final trial brief is a condition precedent to presenting the oral argument and is an intrinsic part of that argument.

The Chamber recalled that the right to be heard at trial and to present a defence are fundamental rights of an accused.
The right to be heard at the conclusion of the trial is the right of the accused, not his counsel. The exercise of that right is discretionary, but it is the discretion of the accused that must be exercised, not his counsel.

The Trial Chamber had an obligation to ascertain on the record that the accused fully understood and agreed with his lawyer’s actions and representations and that he was aware that the consequences of that agreement included the possibility that his right to be heard at the conclusion of the case could be considered waived.

The Appeals Chamber concluded that the Trial Chamber did not establish that there was a knowing, intelligent and voluntary waiver by the accused. Absent facts sufficient to determine a waiver, the Trial Chamber erred in assuming that the accused had waived his rights and in proceeding as if he had.

Taylor, Decision on Defence Notice of Appeal and Submissions Regarding the Decision on Late Filing of Defence Final Trial Brief, Case No. SCSL-03-1-T, App. Ch., 3 March 2011

Defence failure to put to the witness the nature of its case in cross-examination

Pursuant to Rule 90(H)(ii) of the ICTY Rules and relevant provisions of other Tribunals, in the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of his case which is in contradiction of the evidence given by the witness.

Recently, in the Župljanin and Stanišić case, the Trial Chamber stressed that it did not consider Rule 90(H)(ii) as requiring it to compel the Defence to present the nature of its case in contradiction of the evidence of Prosecution witnesses.

However, the Chamber held that there would be consequences to a decision by the Defence to not put the nature of its case when contradictory to the evidence of the witness on the stand.
In particular, the Chamber affirmed that where evidence is later presented to contradict a Prosecution witness, the nature of which was not put to that witness, it will evaluate the circumstances and decide on a case-by-case basis what weight should be attached to such evidence and will take into account the fact that the Prosecution witness was not given the opportunity to comment on the contradictory evidence.

Indeed, the Trial Chamber could ascribe no probative value to contradictory Defence evidence the nature of which was not put to the Prosecution witness while on the stand. Moreover, if the circumstances are sufficiently egregious, the Trial Chamber may preclude the Defence from adducing such contradictory evidence and avoid recalling witnesses.

Župljanin and Stanišić, Decision on Prosecution's Motion Seeking Clarification in Relation to the Application of Rule 90(H)(ii), Case No. IT-08-91-T, T. Ch., 12 May 2010

Assignment of a stand-by counsel in the Karadzic case

In the Karadžić case, the Trial Chamber found that the accused’s conduct effectively brought the trial to a halt, which was, according to the Chamber, evidently his purpose.
Accordingly, the Chamber instructed the Registrar to appoint counsel, who would begin immediately to prepare himself to represent the interests of the accused when the trial resumes, if that should be required. At the same time, the Chamber decided that notwithstanding the appointment of counsel for this specific purpose, the accused would continue to represent himself.

Karadžić, Decision on Appointment of Counsel and Order on Further Trial Proceedings, Case No. IT-95-5/18-T, T. Ch., 5 November 2009, paras 21, 25.

The Chamber continued to monitor the manner in which the accused engaged in his defence and further prepared himself for the trial. Later, the Chamber noted that the accused gave his opening statement, as instructed, and that he continued to file motions and to respond to motions filed by the Prosecution, largely in a responsible manner.
Accordingly, the Chamber did not consider it necessary to assign the counsel to represent his interests at trial. Rather, the Chamber considered it to be in the interests of justice to designate him as a standby counsel. In this capacity the counsel would continue to be engaged in the proceedings and maintain the capacity to step in to represent the interests of the accused should the Chamber determine that this is necessary.

Karadžić, Decision on Designation of Standby Counsel, Case No. IT-95-5/18-T, T. Ch., 15 April 2010, para. 8.

Lawyers' privilege and Tribunal's intervention in a domestic jurisdiction (2)

(See previous post “Lawyers' privilege and Tribunal's intervention in a domestic jurisdiction (1)” on this blog)

In regard to domestic investigations against the members of the Defence team, the Trial Chamber in the Gotovina et al. case noted that States have a legitimate interest in investigating and prosecuting possible crimes committed on their territory (Decision of 12 March).
According to the Chamber, an obligation to refrain from subjecting to the exercise of domestic jurisdiction members of the Defence before an international court could frustrate this legitimate State interest.

On the other hand, parties to a trial before an international court must fulfil part of their tasks, such as interviewing witnesses and conducting on-site investigations, on the territory of States and therefore within the scope of States’ territorial jurisdiction, and away from the seat of the international court or tribunal. The proper functioning of an international court may require some form of protection for defence members from the improper exercise of domestic jurisdiction, in order to protect the performance of their functions.

The Chamber considered that a State may not exercise its jurisdiction by improperly subjecting Defence members to legal process, with regard to acts that fall within the Defence’s fulfilment of its official function before the Tribunal, with the intended or foreseeable result of substantially impeding or hindering the performance by defence members of their functions.

Lawyers' privilege and Tribunal's intervention in a domestic jurisdiction (1)

Recently, in the Gotovina et al. case (ICTY), the Defence requested the Trial Chamber to issue a restraining order precluding Croatia from taking investigative steps against offices, computers and files of the members of the Defence team without a prior order of the Chamber.

In its Decision of 12 March, the Chamber held that, when faced with a request for a significant intervention in a domestic jurisdiction, which is being exercised in a way that would infringe the right to a fair trial of an accused before the Tribunal, the Chamber is, in exceptional circumstances, competent to make such an intervention under Rule 54. The Chamber should also consider what other measures, if any, may be taken to resolve the issue before it.

The Chamber recalled that the ICTY Rules protect the privileged relationship between lawyer and client, in which lawyer and client should be free to communicate without fear of such communications becoming available to outside parties. In this regard, the Chamber noted that Croatia’s search and seizure of materials from the Defence may lead to a situation in which the protection is not ensured.

Accordingly, the Chamber decided that Croatia shall initially desist from inspection of the contents of the materials seized from the members of the Defence team. It shall provide the Defence with access to the seized materials, in such a manner that the Defence can review their content and that the integrity of the seized materials is protected. The Defence and Croatia shall then communicate with a view to seeking agreement on which items are and which are not protected under the ICTY Rules. Croatia shall not inspect the contents of the materials during such communications. Instead, the Defence shall provide brief descriptions of the items it considers protected under the Rules.

ECCC: Defence is prohibited from conducting own investigation

A few weeks ago, in the Nuon et al. case, the Co-Investigating Judges of the ECCC formally warned the Defence counsel that they are prohibited from conducting their own investigations and that any breach of the prohibition may result in the application of sanctions against them.

Indeed, unlike the ad hoc Tribunals, the investigation in the ECCC is conducted by the two independent Co-Investigating Judges and not by the parties. It was emphasized in the Order that “there is no provision which authorizes the parties to accomplish investigative action in place of the Co-Investigating Judges, as may be the case in other procedural systems.”
The Co-Investigating Judges noted that it "is apparent that the Defence seeks to base their investigation communication on their repudiation of the civil law process wherein the judicial investigation is conducted solely by the investigating judge".

Indeed, the format of the preliminary investigation affects the format of the trial. Where the parties do not conduct their own investigations, they have no case to present. There is no case for the Prosecution and no case for the Defence in the ECCC. Under the Internal Rules of the ECCC, it is the Chamber that controls the presentation of evidence. For instance, pursuant to Rule 91, the Chamber shall hear the witnesses and experts in the order it considers useful. The Co-Prosecutors and the Defence “shall be allowed to ask questions with the permission of the President.”

Role of a represented accused in the proceedings

Recently, again, I've come across the opinion that an imposition of a counsel on an accused against the latter's wishes shall not be a problem in a jurisdiction with the common-law features. It has been argued that it is permissible in the civil-law systems.

Indeed, in a civil-law trial, an accused may personally participate in the examination of evidence, question witnesses, and make comments regardless whether or not he is represented by a counsel. In contrast, in the common-law system, an imposing a Defence counsel virtually bars the accused from the direct personal participation in the examination of evidence. That is why the civil-law approach to the imposition of a counsel against the wishes of the accused is more liberal.

In practice of the international criminal Tribunals, some accused, represented by counsel, were granted possibility to participate personally in examination of evidence. In particular, some accused were allowed directly put questions to witnesses subject to the Chamber’s discretion.