TRIBUNAL VIOLATES EVEN ITS OWN RULES
The following papers to the International Criminal Tribunal for the Former Yugoslavia drafted by Ramsey Clark are being distributed to show how this ‘Tribunal’ is violating even its own rules and procedures.
The papers show how, for over a month, the Tribunal prevented President Milosevic from meeting with attorneys to discuss or plan his own defense. President Milosevic had requested a meeting to consult with Ramsey Clark on legal matters. Even though the Office of the Registry admitted that President Milosevic had requested the consultation it was denied. They also show how the Tribunal has deceived the media by claiming that President Milosevic has been held in solitary confinement at his own request.
The papers answer the incredible claim that, “there is no precedence” for a defendant to represent themselves. Presiding Judge May at the arraignment assured Milosevic, “you will have full opportunity in due course to defend yourself”.
The papers also show that the Emergency Motions Ramsey Clark filed with the court was actually withheld by the Registry Office, even though the Registry Office assured Mr. Clark that the Emergency Motion had been distributed to the judges.
The full text of the Emergency Motion after the rejection of a legal consultation and the letter a week later after this Emergency Motion was suppressed are provided in full on the Web site of the International Action Center. Coverage of interview after three days of meetings is also included.
July 26, 2001
Honorable Richard May
Presiding Judge
Trial Chamber III
International Criminal Tribunal
for the Former Yugoslavia
Churchillplein 1
2517 JW The Hague
P.O. Box 13888, 2501 EW
The Hague, Netherlands
Re: Case No. IT-99-37
Emergency Motion
Dear Judge May:
Since my fax to the Registrar of July 4, 2001 (Attachment 1) I have endeavored urgently to obtain permission from the Registrar to consult with President Milosevic at his request on legal matters with full protection of the rights of an accused to consult a lawyer of his choice. Finally after repeated dilatory tactics, on July 19, 2001 the Registrar formally rejected my request, again offering instead a two hour monitored visit during which the Registrar said it would be "inappropriate" to discuss matters of his defense with the accused. (Attachment 2).
On July 21, 2001, my office faxed an Emergency Motion to Trial Chamber III, including 5 attachments, a total of 35 pages and simultaneously sent the original signed document and three copies by Federal Express to the Tribunal. The Emergency Motion requested an order forthwith directing the Registrar to permit President Milosevic to consult with me on legal matters without interference or interception setting forth in detail the rights of President Milosevic's to consult counsel and observing they had been violated for twenty days by July 23, concluding in its last two paragraphs:
28, The requirement of confidentiality for President Milosevic's requested legal consultation with petitioner at the initial stages of the case when fundamental decisions shaping the defense need to be made and of allowing sufficient time for the consultation is so clear as a matter of right, fairness and common sense, as well as international law and professional ethics, that an extended citation of authority is unnecessary.
Honorable Richard May Presiding Judge Trial Chamber III July 26, 2001 page 2
29. Every Court has inherent power and the duty to prevent any violations of rights of accused persons before it, including the right to assistance of counsel. The suggestion by the Registrar that the Tribunal cannot review his decision denying an accused the right to obtain advice on legal matters is dangerous to human rights and the independence of the judiciary. Uncorrected it can vitiate an entire proceeding.
Federal Express confirmed that it delivered the documents at 2:10 p.m., Monday, July 23 to the Tribunal. On July 24, when my office called Mr. Christian Rohde at the Registry he assured us that the Motion had been distributed to the judges on Trial Chamber III on Monday afternoon, adding his comment that the Tribunal "does not have the last word on this issue."
Today, concerned that we had received no response to the Motion my office called Ms. Featherstone, Senior Legal Officer for Trial Chamber III and was told that she had not yet received the Emergency Motion, and after further inquiring, Ms. Janice Kearns, your secretary, confirmed the Motion had not been received by your office.
I ask you to obtain the Emergency Motion from the Registrar, to consider the Motion and advise me of your decision at the earliest possible moment.
This letter is written today immediately after contacting your office, in the hope you will receive it Friday morning, your office can inform me if the Emergency Motion papers have been located and whether I can plan to be in the Hague Monday, or early next week to consult with President Milosevic.
I must add that I am deeply concerned about the actions of the Registry, its veracity, its disregard for the fundamental rights of persons in its custody and the severe effect its violations of President Milosevic's rights may have on his defense. Absent an adequate explanation, I will seek an inquiry and full accountability for its conduct.
Sincerely,
Ramsey Clark
IN THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
TRIAL CHAMBER III
CASE: IT-99-37
Before:
Judge Richard May
Judge Patrich Robinson
Judge Mohammed El Habib Fassi Fihri
Registrar: Mr. Hans Holthuis
Date filed with the Registry:
THE PROSECUTOR
VERSUS
SLOBODAN MILOSEVIC et al.
EMERGENCY MOTION
FOR AN ORDER DIRECTING THE REGISTRY TO PERMIT REASONABLE CONSULTATION BY SLOBODAN MILOSEVIC WITH RAMSEY CLARK AS REQUESTED BY THE ACCUSED WITH FULL RESPECT FOR CONFIDENTIALITY AND TO REVOKE THE DECISION OF THE REGISTRAR DENYING SLOBODAN MILOSEVIC THE RIGHT TO CONSULT WITH RAMSEY CLARK ON LEGAL MATTERS DURING WHICH THE FUNDAMENTAL RIGHTS OF CONFIDENTIALITY OF COMMUNICATION WITH AN ATTORNEY IS RESPECTED BY THE TRIBUNAL.
1. The Registry, by fax dated July 19, 2001, [Attachment 1], has written a final rejection of petitioner's application for a reasonable time of several hours a day for 2 or 3 days, as needed, to consult with President Milosevic at his request on legal matters in which the fundamental right of confidentiality of communications with an attorney is respected by the Tribunal and all who serve it.
2. President Milosevic's initial appearance in Case IT-99-37 took place on Tuesday, July 3, 2001. In a letter to the Registrar, faxed on Wednesday, July 4, 2001, for the attention of Christian Rohde, Ramsey Clark informed the Registry that he had been requested on an emergency basis by President Milosevic to come to the ICTY to consult with him on legal matters on Friday and Saturday July 6 and 7, 2001, and that he planned to arrive in the Hague that Friday morning. [Attachment 2.] Mr. Clark asked the Registrar to arrange for him to meet with President Milosevic on Friday after his arrival and on Saturday, July 7, 2001. The letter outlined Mr. Clark's legal experience and qualifications, including his current service as lead counsel in a case before the ICTR which provided any needed assurance for security and qualification purposes.
3. Mr. Rohde advised Mr. Clark's office by telephone and fax on Thursday, July 5, 2001, [Attachment 3], that the meeting would not be considered until security procedures were completed which would take 3 to 4 days and requested a copy of the photo page from Mr. Clark's passport. Mr. Rohde emphasized permission for a visit would "not" be considered "before these procedures are completed". Mr. Rohde's fax referred to President Milosevic's choice not to engage a lawyer to represent him in his criminal case before the Tribunal, and asked for further information in order for the Registrar to properly consider Mr. Clark's application for an emergency legal consultation.
4. The same day Mr. Clark's office faxed the photo and issuance pages from Mr. Clark's passport in response to Mr. Rohde's request. [Attachment 4]. The transmittal letter again observed that Mr. Clark is assigned as lead counsel in a case pending before the ICTR which ought to be sufficient for security and qualification purposes. There was no timely reply. As a result, Mr. Clark reluctantly cancelled his trip though he had confirmed reservations for a flight on July 5, 2001, and had cleared his schedule to Monday, July 9, 2001.
5. On Wednesday, July 11, 2001 Mr. Rohde called and informed Mr. Clark's office that a non lawyer visit had been authorized for Mr. Clark to meet with President Milosevic for a maximum of 2 hours, a limit that was being applied because President Milosevic had no counsel of record and Mr. Clark did not have a power of attorney which the ICTY requires of counsel appearing in ICTY cases.
6. Because Mr. Clark was engaged in a Court proceeding all week, his office called Mr. Rohde the next day, Thursday, July 12, 2001, to learn, as Mr. Rohde invited Mr. Clark to do, the details of the visit that was authorized. Mr. Rohde was told that Mr. Clark wanted to provide the legal consultation requested of him and would come to the Hague as soon as he could, which would be Wednesday of the next week, July 18, 2001, at the earliest. Mr. Rohde was advised that Mr. Clark had two essential concerns, one, that communication between President Milosevic and himself at the meeting not be intercepted by the Tribunal, but be confidential and two, that sufficient time be allowed for meaningful and complete discussion, which might require several hours a day for two or more days and could not be accomplished in two hours.
7. Mr. Rohde advised that the visit would be monitored, apparently electronically and/or by physical presence of an agent of the Tribunal, as are all visits, as distinguished from meetings with counsel which are unmonitored. Mr. Rohde said the two hour time limit was the ICTY's limit for ordinary visits as distinguished from meetings with counsel which are not subject to any time limits. Mr. Rohde stated that in addition there was a limit of 10 hours applicable to visits by lawyers who like Mr. Clark were not counsel of record. Mr. Rohde said the 10 hour rule was imposed by the Registrar. He said it was an unpublished internal decision of the Registrar that cannot be examined. It was unclear whether the 10 hour rule is an aggregate limit for visits by all lawyers in perpetuity, whether it applies to all lawyers' visits during a given time period such as a week, or whether it limits visits by one lawyer. Mr. Clark faxed the Registrar on Sunday, July 15, 2001 requesting a final decision on the two issues presented, accompanied by a 10 page legal memorandum. [Attachment 5.] This submission follows the content of that legal memorandum dated July 14, 2001 as closely as changed circumstances permitted.
8. The Registry in its July 19 rejection of the right to legal consultation held:
A. That the issues raised by petitioner's request for more than two hours for consultation and for confidentiality "...do not seem to be relevant for an exchange of letters between our offices." Attachment 1, para.1.
B. That "While a decision to refuse permission may be appealed by a visitor", there is no "right of review of a decision by the Registry in relation to the above issues by a person who is not a party to the proceedings." Id, para. 2.
C. That "As Mr. Milosevic has neither requested your assignment as counsel, nor have you provided my office with a power of attorney for his representation, there are so far no grounds to regard you as his counsel under the Rules, and accord the relevant privileges to meetings." Id, para. 4.
D. That "If visiting Mr. Milosevic as a legal adviser, and not as his counsel, you are not bound by the Code of Professional Conduct for Defense Counsel of the Tribunal. As such a visitor would not be bound by confidentiality, it appears inappropriate to discuss with the accused any confidential matter of his defense. Consequently, the imposition of monitoring would not impinge upon the accused's rights." Id, para. 5.
E. That the Registry concedes "that the accused has communicated to my office that he wishes to meet with you, to seek advice." Id. para 3 and "as a legal adviser". Id, para. 5.
9. Petitioner is not aware of a document the Registry states President Milosevic has submitted to the Trial Chamber "in which he states that he does not want to defend himself against the criminal charges brought against him before this Tribunal, and therefore does not require the assistance of counsel." Id, para. 3 This is contrary to President Milosevic's statements at his arraignment on July 3, 2001. And contrary to the Registrar's arbitrary position which has denied President Milosevic all right to consult with counsel about legal matters, Judge May acknowledged both his right to defend himself and his right to counsel and urged him to consider using counsel.
"Mr. Milosevic, I see that you're not represented by counsel today. We understand that this is of your own choice. You do have the right, of course, to defend yourself. You also have a right to counsel, and you should consider carefully whether it's in your own best interests not to be represented. These proceedings will be long and complex and you may wish to reconsider the position. In these circumstances, if you wish to have time to consider whether you want to have counsel or not, we would be prepared to give it to you." (July 3 Transcript, pg. 1, line 18 to pg. 2 line 1.)
"Mr. Milosevic, in due course, you will have the chance to put in motions challenging the jurisdiction or any other preliminary matters which you wish to do. We take it that you wish to proceed without counsel, although it's a matter which you may wish to reconsider in due course." (Id. pg. 3, lines 7-11.)
It is contrary to Judge May's statement at the end of the arraignment:
"As I have said, you will have full opportunity in due course to defend yourself and to make your defence before the Tribunal. This is not the moment to do so." (Id. pg. 5, lines 5-8.)
It is contrary to media reports at the time and since arraignment. It is contrary to petitioner's understanding. If such a document exists it powerfully confirms the right and the urgent need of an accused to consult with a lawyer of his choice. Unless confidential consultation for President Milosevic with counsel of choice is immediately granted, a hearing as to whether the Registry has permitted violations and abuses of the rights of the accused in addition to denying legal consultation is required. Under any circumstances the Registry does not and can not claim that such a document affects the request of President Milosevic to meet with Ramsey Clark "to seek legal advice." Attachment 1, para. 3.
10. President Milosevic has requested and needs to consult petitioner and other lawyers for advice concerning many legal issues and to consider such matters as pre trial motions challenging the legality and jurisdiction of the Tribunal, evidence that he acted only to defend the sovereignty of his country and protect its citizens from foreign assault and foreign supported domestic insurrection, to consider trial preparation, discovery, investigations, the identification, acquisition, organization and presentation of documents, witnesses and other evidence. Any lawyer retained to prepare a major and virtually unique case for trial would of necessity do the same, and his communication would be fully protected from interception by the Prosecutor or others, as communications by prosecutors are protected from interception. President Milosevic may wish to consult experienced litigators concerning the ramifications of a decision to defend himself. Surely the Tribunal would not want to discourage this. He may have need for legal consultations and services in connection with other issues related to this case and on issues and for services that are not related. He has been seized, confined and illegally transported from his own country without an opportunity to arrange his affairs. He has been denied his right to assistance of counsel for 17 days at a critical stage of the proceedings and the Registry continues to frustrate his requests for legal advice.
11. The fifth paragraph of Attachment 1 reads: "If visiting Mr. Milosevic as a legal adviser, and not as a his counsel, you are not bound by the Code of Professional Conduct for Defence Counsel of the Tribunal. As such a visitor would not be bound by confidentiality, it appears inappropriate to discuss with the accused any confidential matter of his defence. Consequently, the imposition of monitoring would not impinge upon the accused's right." While the Registry may believe a mere legal adviser conferring with an accused is not bound by the Code of Professional Conduct for Defence Counsel, to permit, or condone its violation implicates the Registry and the Tribunal in a serious violation of rights that may jeopardize the entire case. Confidentiality of communications with lawyers existed in law for centuries before that Code was created. It is essential to the protection of fundamental human rights and every lawyer is bound by it and would be if the Tribunal's Code had never been written.
The effect of the language of the fifth paragraph despite its convoluted phrasing is clear. The Registry directs agents of the Tribunal to intercept consultations between an accused and a lawyer consulted for legal advice. Confidentiality is breached by direct order of the Registry. If it is "inappropriate" for a lawyer to discuss the defense of a case, then the accused has no right to consultation with lawyers concerning his defense, or for any other legal matters. All such discussion is confidential as of right, but the Registry holds such discussion "inappropriate", and directs that Tribunal agents monitor attorney-client consultations and advice in flagrant violation of fundamental rights, thereby frustrating and compromising the ability of the accused to prepare his case.
LEGAL AUTHORITY
A. An Accused Has The Right To Defend Himself And The Right To Assistance Of Counsel Including Consultation If Unrepresented.
12. Article 5 of the ICTY Directive on Assignment of Defense Counsel by word and intent guarantees an accused the right to be assisted by counsel if unrepresented and if conducting his own defense. This is clear from the text: Article 5: Without prejudice to the right of an accused to conduct his own defense:
(i) a suspect..., (ii) an accused... and (iii) any person detained on the authority of the Tribunal shall have the right to be assisted by counsel.
13. An accused who chooses to conduct his own defense has a right to assistance of counsel and the exercise of that right cannot prejudice his right to represent himself, or to be represented by counsel. The right to represent oneself is primary. Its exercise does not extinguish the right to assistance of counsel. Preservation of the right to assistance of counsel for an accused who chooses to defend himself is essential to the right of the accused to conduct his own defense. It cannot be used to prejudice that right.
14. The U.S. Constitution uses language similar to Article 5 to guarantee the right to counsel in Amendment VI of the Bill of Rights: "...to have the assistance of counsel for his defense." In U.S. law, such consultation by an accused representing himself is not only a right, but a highly important procedure. Both protection for the rights of the accused and trial efficiency require a right of an accused who is unrepresented, or is representing himself, to consult counsel as needed without secret or overt interception of confidential communication. U.S. Courts recognize the right of an accused to consult with counsel of choice and have gone so far as to provide "Advisory", or "Stand by" counsel for an accused who is unrepresented, or representing himself for consultations and legal services when the accused cannot afford a lawyer. But no "Advisory", or "Stand By" counsel retained, or assigned, may interfere with or prejudice the right of the accused to defend himself, or be represented by counsel.
15. Whether an advisory, or stand by counsel can address the Court, examine witnesses, or proffer evidence if authorized to do so by an accused defending himself is largely in the discretion of the Court. But such counsel cannot act without the authority of an accused who is unrepresented or representing himself with rarest exception not relevant here. The Court has a primary duty to support the right of self representation whenever such representation is requested by the accused. This is a fundamental human right. Ordinarily a Court ought to permit advisory counsel to assist an accused presenting his own defense by direct participation at the trial where requested by the accused. The rights of an accused, including the right to self representation, fairness and efficiency are served by such a procedure. But these issues are not now before the Tribunal.
16. The choice to represent himself does not destroy the right to the assistance of counsel, which includes consultations and legal services. To deny the right to a pre-trial detainee in a case of this magnitude and where if the case goes to trial, virtually all the prosecutor's evidence, if not all, will involve events and the acts of other persons unknown to the accused, and most of the defense will involve acts of foreign governments and foreign supported insurrection, is to deny the fundamental rights of self representation, assistance of counsel and a fair trial. It is impossible for a person presumed innocent, but sitting in a prison cell, to act in such matters without legal assistance that can perform legal services outside prison walls.
17. This early stage is a critically important time for President Milosevic to have assistance of counsel. As long ago as 1932 in the famous Scottsboro case, Powell v. Alabama, 287 U.S. 45, 57, the Supreme Court of the United States wrote:
"during perhaps the most critical period of the proceedings... that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation [are] vitally important, the defendants...[are] as much entitled to such aid [of counsel] during that period as at the trial itself."
18. The Registry's position violates both the principle and practice of the right of a person to conduct his own defense and the right to assistance of counsel. Its ruling means that an accused held in prison pending trial who is unrepresented, or chooses to represent himself forfeits all legal assistance and the practical means essential to conduct his own defense. The position is arbitrary, unlawful, a denial of assistance of counsel and of due process of law.
B. An Accused Who Is Unrepresented Or Is Defending Himself Has The Right To Confidential Communication With Counsel Without Interference With, Or Interception Of Such Communications By Agents Of The Tribunal Or Others.
19. The right of an individual, including a pre-trial detainee to confidential consultation with an attorney of his choice without interference, or overt, or surreptitious interception is universally recognized. Rule 67(D) of the ICTY's Detention Rules includes recognition of this right. The right to confidential consultation with attorneys applies to all consultations with a lawyer for legal counseling, or advice, document preparation, litigation services, or any other assistance customarily performed by lawyers in their professional capacity. This is universally recognized.
20. The right to confidentiality necessarily applies to initial consultations before counsel is chosen, or rejected, otherwise counsel must be chosen before a lawyer is thoroughly interviewed and the nature and facts of the case or legal matter is discussed. Rule 44 in referring to counsel engaged by a suspect provides that he shall file "a power of attorney with the Registrar at the earliest opportunity." The rule by its terms refers to filing such power of attorney after formal engagement which requires prior consultation and even then only that the power of attorney be filed at the earliest opportunity.
21. The Registry is correct when it writes that President Milosevic has not requested assignment of any lawyer as his counsel, and no lawyer has filed a power of attorney for his representation with the registry and no attorney is "his counsel" under the Rules, Attachment 1, para. 4. President Milosevic ought not will not, and cannot be compelled to choose counsel, or execute a power of attorney until he has thoroughly discussed his case with lawyers, decided whether he will defend himself or retain counsel and chosen trial, or advisory counsel on the basis of his discussions with lawyers after receiving their advice. The Registry seeks to force the choice of counsel without prior consultation in violation of fundamental rights. A person has a continuing right to consultation with lawyers whether he is unrepresented, defending himself, or uses retained, or assigned counsel. In the U.S., Courts have arranged for an accused in custody represented by counsel before and during trial to consult with another lawyer without informing the attorney of record who is defending the accused in the case.
22. The importance of broad confidential consultation rights is further demonstrated by Article 8 of the Tribunal's General Obligations of Counsel to Clients which provides "Whether or not the relation of Counsel and Client continues, Counsel must preserve the confidentiality of his client's affairs..."
23. The rights of an unrepresented accused, the right to defend one's self and the right to counsel would be feeble indeed, if they involved the forfeiture of consultations with lawyers, legal scholars, and assistance of counsel all protected by a privilege universally recognized as essential to the preservation of all rights.
24. It is possible that President Milosevic may want to consult lawyers to consider retaining advisory counsel, courtroom assistance or trial counsel, which it is assumed the Tribunal would not want to frustrate.
25. Under the Tribunal's own rules and international legal and ethical principles, President Milosevic's legal consultation with petitioner is entitled to be free from interference and overt, or surreptitious interception which is essential to the rendering of legal advice.
26. The Restatement of the Law, Third, of The American Law Institute, the Law Governing Lawyers, (2000), provides authoritative examples. Under section 60 of the Restatement a lawyer is required to maintain the confidentiality of communications made for the purpose of obtaining legal counseling or advice. Petitioner would be derelict in his professional responsibility as an attorney if he participated in monitored consultations with a person seeking his advice, disregarding his duty to maintain confidentiality. It would be a flagrant abuse of power for the Tribunal to insist on a breach of confidentiality as a condition to allowing President Milosevic to engage in the legal consultation he is seeking with petitioner.
27. Section 72 of the Restatement provides that the attorney-client privilege attaches to communications for the purpose of obtaining or providing legal assistance to a client or prospective client. The Restatement is supported by many decisions by courts of the United States and other nations. The Tribunal's Code of Professional Conduct draws heavily, as listed in its Sources section, on the Codes of other jurisdictions including the United States, which uniformly recognize as privileged and entitled to confidentiality the communications President Milosevic is seeking.
28. The requirement of confidentiality for President Milosevic's requested legal consultation with petitioner at the initial stages of the case when fundamental decisions shaping the defense need to be made and of allowing sufficient time for the consultation is so clear as a matter of right, fairness and common sense, as well as international law and professional ethics, that an extended citation of authority is unnecessary.
29. Every Court has inherent power and the duty to prevent any violations of rights of accused persons before it, including the right to assistance of counsel. The suggestion by the Registrar that the Tribunal cannot review his decision denying an accused the right to obtain advice on legal matters is dangerous to human rights and the independence of the judiciary. Uncorrected it can vitiate an entire proceeding.
Conclusion
Trial Chamber III is respectfully requested to grant this emergency motion and issue an order forthwith directing the Registry to permit reasonable consultation by Slobodan Milosevic with attorney Ramsey Clark as requested with full respect for confidentiality and to recognize the right of Slobodan Milosevic to consult on legal matters under conditions which ensure that the fundamental rights of reasonable time for consultation and confidentiality of communications are respected. Dated: July , 2001
New York, NY
Respectfully submitted,
Ramsey Clark
36 East 12th Street
New York, NY 10003
212-475-3232
Fax: 212-979-1583
RAMSEY CLARK SLAMS HAGUE 'TRIBUNAL'
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