Declaration of the Group of members of the Russian Association of International Law for Monitoring the Process Prosecutor v. S. Milosevic in the International Criminal Tribunal for the former Yugoslavia

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On 29 November 2005, during the ‘debate on his health and severance of the indictments’ before the ICTY, President Milosevic gave a powerful lesson of law and politics to his inquisitors. The ‘judges’ made no decision yet, waiting for further medical reports, in spite it was lauded in the debate that all medical experts, including the ones appointed by the ICTY, agree that a period of rest for President Milosevic is absolutely needed. Instead, the proceedings continued. During the yesterday’s debate, President Milosevic presented the written conclusions of a group of renown Russian International Law experts on ‘fairness’ of the Hague proceedings. Below we offer for the first time to the public the English translation of that important document.

D E C L A R A T I O N

of the Group of members of the Russian Association of International Law for Monitoring the Process Prosecutor v. S. Milosevic in the International Criminal Tribunal for the former Yugoslavia

 

Group of members of the Russian Association of International Law for Monitoring the Process Prosecutor v. S. Milosevic in the International Tribunal for the former Yugoslavia is expressing its concern over the violation of the fundamental right of the accused – the right to fair trial.

The right to a fair trial was set out in a series of international legal acts (Art. 10 of the Universal Declaration of Human Rights, 1948; Art. 14 of the International Covenant of Civil and Political Rights, 1966; Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950; Art. 75.4 of the Additional Protocol I to the Geneva Convention on the Protection of the Victims of War, 1977and other), and in the Statute of the very Tribunal (Art. 21.2). Hence, the assurance of that right is obligatory in any process ongoing in ICTY.

The international legal term of “fairness” of court proceedings includes a number of elements, primarily the right of the defendant: to have adequate time and facilities for the preparation of his defense; to defend himself in person; to be tried in his presence; to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

 

1.          Right of the accused to “to have adequate time for the preparation of his defense”.

Since the signature of the first indictment against S. Milosevic till the beginning of the Prosecution Case two years and eight months have passed. All that time was used up for the preparation of the Prosecution Case. The preparation of the Prosecution Case went on even for eight months after detention of the accused in prison.

Three months were allowed to S. Milosevic for the preparation of defense.[1]  After certain prolongation of that period due to the illness of the defendant, the whole time for the preparation of defense came to six months. However, a considerable part of the prolongation could not be used for the preparation of defense because the Secretariat of the Tribunal kept denying to S. Milosevic to meet with his witnesses on the grounds of his ill health.

It is absolutely clear that the period of time for the preparation of defense in the most complex international criminal case, which contains 66 counts and several thousand of episodes is inadequate, moreover in prison conditions. In compliance with the principles of equality of the parties in the process, the defendant must get at least the same time for the preparation of his defense as the prosecution had for the preparation of its Case – from the moment of signature of the Indictment till the onset of the trial. In compliance with the principle of granting the defendant an adequate time for the preparation of his defense, and taking into consideration the extraordinary complexity of the case, S. Milosevic must be given an adequate time span, because less than six months allowed can’t be considered adequate.

The appeal by the defendant to have more time was rejected by the Appeals Chamber too, stating “by choosing to conduct his own defence, the Accused deprived himself of resources a well-equipped legal defence team could have provide” and that he “must be reciprocated by the acceptance of responsibility for the disadvantages this choice may bring”[2]. In support to this “conclusion” the Appeals Chamber invoked four decisions of the national courts, but forgot to refer to the valid norms of the international law. So the highest chamber of the Tribunal, which is obliged to protect the violated rights of the defendant, confirmed illegal decision of the Trial Chamber, by having punished the defendant for choosing to defend himself in person, without quoting legally convincing arguments. The right to an adequate time for the preparation of defense belongs to the defendant not to the lawyers! Besides, that right is on the list of rights without limitations.[3]

Hence, the Group founds the violation by ICTY of the right of the defendant to be accorded adequate time to prepare his defence.

 

2. The right of the accused to “defend himself in person”.

The right of the accused to his own defense in person is under no limitation, likewise and hence a forceful imposition of counsel constitutes a breach of the norms of the international law. No argumentation of the court, the least the temporary illness of the defendant, may serve as the grounds for depriving him of that right.

The forced imposition of counsel for the accused provoked serious concerns that it has been concocted to conduct the defense of S. Milosevic in his absence, if his health gets worse.

Hence, the Group finds that ICTY violates the right of the accused to defend himself in person.

 

3.     The right of the defendant “to be tried in his presence”.

This right is subject to no limitation, either. The invocation of both chambers of the Tribunal to time efficiency is unacceptable in terms of international legal norms, because any interpretation of a norm is possible only in the case of its vagueness. In the case of the minimum rights of the accused, and which were worded quite clearly, such an interpretation is contrary to the general principle of law: in claris non fit interpretario. General principles of law are binding on all the courts and consequently on the International Criminal Tribunal for the former Yugoslavia.

Further to that, the so called “case” of the defense witness K. Bulatovic, who refused to testify in the absence of the accused, could not have possibly be taken as the contempt of the court. The witness K. Bulatovic tried to speak up for the right of the defendant to be tried in his presence, and was completely groundlessly sentenced to 4 months of imprisonment. The witness K. Bulatovic didn’t “refused to reply to the questions” in general, rather refused to reply to the questions in the absence of the defendant. The session of the court on 19th April 2005, when the trial chamber grossly violated one of the fundamental elements of the right to a fair trial, was illegal, and the witness K. Bulatovic was not obliged to reply to questions during such a session.

Hence, the Group finds that ICTY violates the rights of the defendant to be tried in his presence.

Besides, the action of the Trial Chamber v. defense witness raises doubts about impartiality of the court. The contempt of the court is not defined by personal feeling of the Judges, but the norms of the international law. Punishment of the witness, who had acted in compliance with the international law, was absolutely contrary to law. The doubt of the impartiality of the court has been caused by the fact that a series of the prosecution witnesses, particularly the witness A. Zekiri and the witness K-12, who indeed rejected to testify before the court, were not sentenced to prison terms and one of them was not even declared guilty for contempt of the court.[4]

 

4. The right of the accused to “to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.

The Prosecution received 300 days from the Trial Chamber for the presentation of its case, while S. Milosevic only 150 days for the presentation of his defense.

Regrettably, the United Nations General Assembly and Security Council were mislead by the ICTY report which claimed that “the Trial Chamber has ordered that the accused have the same amount of time to present his defence case as the prosecution had to present its case[5].. That allegation aimed at persuading the United Nations General Assembly and the Security Council that in the Defense Case of the process that is ongoing, the basic elements of the right to a fair trial had been assured, which is far from the truth.

The defendant S. Milosevic was accorded twice less time than the Prosecution. The argumentation of the court intended for the international public that 150 days are equal to 300 days is not only unconvincing but illegal. The allegation that S. Milosevic during the Prosecution Case used more time that the Prosecution is no basis for cutting the time for his defense, because S. Milosevic “spent” the time not on his witnesses, but on the witnesses of the Prosecution. That manipulation must attract special attention of the international community in general and of United Nations General Assembly and Security Council in particular, since that fact also makes the impartiality of the court doubtful.

Moreover, it was planned to separate in the nearest future the Kosovo part of the trial from the rest of the indictments in the course of ongoing defense, which also constitutes the violation of the right of the defendant to a far trial. The Prosecution invited witnesses on more than one occasion made depositions simultaneously on the Kosovo and all other Indictments. Separation of the trial at the time of ongoing defense, under whatever grounds, will violate the right of the indicted to a fair trial and bring the defense witnesses in inequitable position compared to the prosecution witnesses.

Hence, the Group finds the violation by ICTY of the principle of equality of the parties and breach of the presumption of innocence.

The Russian Association of International Law adopted on 30 June 2005 the Declaration in which it unanimously qualified the decision of the Trial Chamber to accord to S. Milosevic twice less time than the Prosecution had as a gross violation of the international law.[6]

Hence, the Group qualifies the course of the process against Slobodan Milosevic as NOT in accord to the requirement of assurance of the right of the accused to a fair trial and draws the attention of the United Nations General Assembly and Security Council to that fact, and the whole international public opinion alike. The Group demands the International Criminal Tribunal for the former Yugoslavia to assure the right of the accused to a fair trial.

 

 

The members of the Group of Russian Association of international law for monitoring the process Prosecutor v. Slobodan Milosevic in the International Criminal Tribunal for the former Yugoslavia:

1.                      J.M. Kolosov, Doctor of International Law, Professor at the Department of International Law of the Moscow State Institute for International Relations of the Russian Ministry for Foreign Affairs, member of Executive Committee of the Russian Association for International Law, member of UN Committee for Economic, Social and Cultural Rights; Editor-in-Chief of the “Moscow Journal of International Law”;

2.                      S.V. Chernichenko, Doctor of International law, Professor, Head of the International Law Center of the Diplomatic Academy of the Russian Ministry for Foreign Affairs, Vice-president of the Russian Association for International Law;

3.                     G.V. Ignatenko, Doctor of International Law, Professor, Vice-president of the Russian Association of International Law, Editor-in-Chief of the “Russian Law Journal”, former Head of the Department of International law of Ural State Law Academy;

4.                     G.I. Kurdukov, Doctor of International Law, professor, Head of the Department of Constitutional and International Law of the Kazan State University, Vice-President of the Russian Association of International Law;

5.                     L.N. Galenskaya, Doctor of International Law, Professor at the Department of International Law St.Petersburg State University, member of the Executive Committee of the Russian Association of International Law, Editor-in-Chief of the “Russian Yearbook of International Law”;

6.                     A.J. Kapustin, Doctor of International Law, Professor, Head of the Department of International Law of the Russian University of Friendship of Nations, Dean of the Law Faculty of RUDN, Member of the Executive Committee of the Russian Association of International Law;

7.                     E.S. Krivchikova, Doctor of International Law, Professor at the Department of International Law of the Moscow State Institute of International Relations of the Russian Ministry for Foreign Affairs;

8.                     L.H. Mingazov, Doctor of International Law, Professor, Head of Department for Human Rights of UNESCO of the Kazan State University;

9.                     R.M. Valeev, Doctor of International Law, Professor at the Department of Constitutional and International Law of the Kazan State University, Vice-president of the Russian Association of International Nuclear Law, former Judge of the Supreme Court of the Republic of Tatarstan;

10.                P.N. Birukov, Doctor of International Law, Professor, Head of Department of International Law of Voronez State University;

11.                S.J. Marochkin, Doctor of International Law, Professor, member of the Executive Committee of the Russian Association of International Law, Head of Department of the International Law of the Tumen State University;

12.                N.I. Kostenko, Doctor of International Law, Professor, the leading science associate of the Center for the international law studies of the Institute of State and Law of the Russian Academy of Science;

13.                A.B. Mezyaev, Doctor of International Law, docent, Deputy Head of the Department of Constitutional and International law of the faculty of Law of the Academy of management, member of Expert Council of the Ombudsman of the Republic of Tatarstan, Executive Secretary of the Group of members of Russian Association of International Law for monitoring the process against S. Milosevic in ICTY.

25 November 2005

 



[1][Trial Chamber] Order Concerning the Preparation and Presentation of the Defence Case of September 17, 2003.]

[2][Appeals Chamber] Decision on the Interlocutory Appeal by the Amici Curiae against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case of January 20, 2004, para 19

[3]Article 14.3 of the International Covenant on Civil and Political Rights states: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees

[4] Transcript of the court session of 22 February 2002 and of 3 and 4 June 2002.

[5]UN Document: A/60/267 – S/2005/532 (12 Report of ICTY to General Assembly and Security Council) of 17 August 2005, para. 85.]

[6]Published in the magazine: “Moscow Journal of International Law” 2005, No. 4.

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