Imposition defence counsel and the right to fair trial

1. Imposition defence counsel and the right to fair trial Robin Grey Taru Spronken ECBA Conference Maastricht 8-11-2004

2. 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

3. Milosevic case • ICTY 4 April 2003: right to conduct own defence respected; • ICTY 31 August 2003: appointment Amici Curiae

4. 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 Milosevic case (continuation)

5. 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

6. 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)

7. Problematic situations Comparison of Dutch and UK practice: • Obstruction of defendant • Mental healt of defendant • Physical health of defendant

8. 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)

9. 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 defendant’s wil?