From: Faculty of Law, University of Belgrade
Bulevar Revolucije, 67
11000 Belgrade Tel:(381-11) 32 41 501 and:(381-11) 32 30 116
Fax:(381-11) 32 21299
To: Bars of Serbia, Yugoslavia, the Netherlands and Great Britain
Dear Sirs,
The Trial Chamber of the International Criminal Tribunal for former Yugoslavia issued, in the case No.IT-99-37 against the accused Slobodan Miloševi*, at the status conference held 30 August 2001, the order inviting the Registrar to designate counsels to appear before it as amicus curiae, pursuant to Article 74 of the Rules of Procedure and Evidence of the Tribunal. Further to the order, the following lawyers were designated to act in such a capacity: Mr. Branislav Tapuškovi*, of FR of Yugoslavia, Mr. Michail-Mischa Vladimiroff of the Netherlands and Mr. Steven Kay, QC, of Great Britain.
We are of the view that the appointed personalities are top class lawyers, highly experienced who could provide a valuable assistance to the Tribunal in pursuit of its mandate provided Article 74 of its Rules of Procedure and Evidence were correctly applied.
However, although the order of the Trial Chamber, mentioned above, described the task of the persons to be designated to act in the capacity ofamicus curiae “not to represent the accused but to assist in the proper determination of the case” with the view to ”securing a fair trial”, which is in keeping with the institute of amicus curiae, the elaboration of the stated task in the first three of totally four items is quite contrary to the meaning of this institute and constitutes, de facto forcing of counsels upon the accused, ex officio, in an evasive but awkwardly disguised way, and annihilation of the concept of self-defense opted by the accused. Such a conduct constitutes a serious breach of his right to defense guaranteed under Article 14 of the International Covenant of Civil Rights and a series of other international documents and constitutional and legal provisions in the national legal systems of the civilized world.
The three items mentioned set out that “amicus curiae is to assist the Trial chamber by:
- Making any submissions properly open to the accused by way of preliminary or other pre-trial motion;
- Making any submissions or objections to evidence properly open to the accused during the trial proceedings and cross-examining witnesses as appropriate;
- Drawing to the attention of the Trial Chamber any exculpatory or mitigating evidence…”
The above assignments, obviously enough, pertain not to those who are to assist the court, but fall within the realm of entitlements of the accused and his counsels, exclusively.
The Statute of the Hague Tribunal (Article 21) and the Rules of Procedure and Evidence (Articles 44 and 45) stipulated on one hand, the right of the accused to chose his counsel himself, meaning that he cannot be imposed a counsel whom he did not want, and on the other, they set out no possibility of designating ex officio counsel, providing lee way to the accused to defend himself on his own, which Slobodan Miloševi* opted for.
Designation of de facto counsel of the accused, as mentioned, and moreover the individuals he doesn’t want, entrusted with the tasks, which belong to the accused and his counsels only, all under the mask of the institute of amicus curiae constitutes but a breach of both the stated provision of the Statute and the Rules of Procedure and Evidence, and Article 14, Par 3, items b), d) and e) alike of the International Covenant of Civil and Political rights. The right to defense, protected by the mentioned provisions of the International Covenant on Civil and Political Rights has been violated also by the fact that the designation of de facto counsel to the accused and with the assignments mentioned diluted his defense concept, based on repudiation of legality of the foundation of the Tribunal itself and denial of the accused to recognize, by his own conduct, so disputed legality. The accused is entitled to such repudiation, the more so as he invokes the UN Charter and suggested that the establishment of the Tribunal was in violation of the Charter.
Without contesting the benefits of a duly applied institute of amicus curiaewe find it unacceptable, illegal, contrary to the nature of lawyers’ function, ethics and Codes of respective Bars, and finally immoral, for anyone, and particularly for the members of the lawyers profession, to enter amicus curiae so distorted, as described, in misuse of that institute to deprive the accused of his right to defense. Therefore, we are asking the Bars of Serbia and Yugoslavia, the Netherlands and Great Britain to invite their respective above-mentioned members not to accept this part in the proceedings at stake in the manner exposed in the above quoted three items. We are inviting the appointed personalities themselves to refuse to participate in the proceedings in the way that violates the right of the accused to defense, without denying in any way the possibility of their participation in keeping with the nature of the institute amicus curiae. Finally, we are asking the mentioned Bars, in case their members choose to ignore this appeal and do take part in the violation of the rights of the accused in the proceedings at stake, to take respective measures under the regulations of each of the three states mentioned, and the internal rules of the three Bars mentioned, against the members of their Bar, who would in such a dramatic way, in blatant violation of the right of the accused in any proceedings and particularly the right to defense, misuse their status and the rank of lawyers.
Yours truly,
The undersigned lecturers and associates of the Faculty of Law, University of Belgrade
- Prof Dr Mirjana Stefanovski, Associate Professor
- Prof Dr Kosta Čavoški, Full Professor
- Miodrag Jovanović, M.A., Assistant
- Dr Milan Škulić, Assistant Professor
- Prof Dr Mirko Vasiljević, Full Professor
- Aleksandar Gajić, Assistent Probationer
- Dr Saša Bovan, Assistant Professor
- Zoran Mirković, M.A. Assistant
- Dejan Djurdjević, Assistant-Probationer
- Dr BrankoM.Rakić, Assistant Professor
- Prof Dr Oliver Antić, Full Professor
- Prof Dr Dragutin Šoškić
- Dr Vladan Jončić
- Dr Nataša Delić, Assistant Professor
- Prof Dr Ratko Marković, Full Professor
- Prof Dr Zoran Stojanović, Full Professor
- Prof Dr Zagorka Jekić, Full Professor
- Dr Aleksandar Jakšić, Assistant Professor
- Dr Slobodan Panov, Assistant Professor
- Balša Kašćelan, Assistant-Probationer
