Imposition%20defence%20counsel%20and%20the%20right%20to%20fair%20trial

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Imposition defence counsel and the right to fair
trial

• Robin Grey
• Taru Spronken
• ECBA Conference Maastricht 8-11-2004

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Plan of treatment

• Summary of events Milosevic case
• Right to defence and fair trial
• Problematic situations
• Ethical questions and responsibility defence
  counsel
• Questions for debate

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Milosevic case

• ICTY 4 April 2003 right to conduct own defence
  respected
• ICTY 31 August 2003 appointment Amici Curiae

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Milosevic case (continuation)

• 8.6.2004 defence case/ health problems
• 26.7.2004 submissions Prosecution on appointment
  defence counsel
• 13.8.2004 submissions Amici Curiae

• 2.9.2004 ICTY orders appointment
• 3.9.2004 assignment of Kay and Higgins
• 8.9.2004 appeal Milosevic
• 22.9.2004 Reasons ICTY to assign counsel

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Right to defence and fair trial

• Articles 20 and 21(4)(d) ICTY Statute
• Article 6 ECHR, Croissant ECHR, 25 September
  1992, Series A no. 237-B, 245
• Michael Brian Hill v. Spain , Human Rights
  Committee, Communication No. 526/1993, U.N. Doc.
  CCPR/C/59/D/ 526/1993, 2 April 1997

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Core issues

• Defence is a right, not an obligation
• Freedom of defence
• Counsel as an aid to a willing defendant or as an
  organ of the state?
• (Faretta v. California, 422 U.S. 806)

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Problematic situations

• Comparison of Dutch and UK practice
• Obstruction of defendant
• Mental healt of defendant
• Physical health of defendant

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Ethical problems

• Representing an unwilling client allowed?
• Absence of instructions of the accused
• Amicus Curiae
• Standby counsel
• Independent counsel (when information or evidence
  is witheld because of public interest)

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Questions for debate

• Under what circumstances limiting the right to
  self-representation is legitimate with a view to
  a fair trial?
• Is there a difference between common law and
  civil law systems in this respect?
• Should defence counsel refuse to accept
  assignment against a defendants wil?