-Caveat Lector- ----- Original Message ----- From: Vladimir Krsljanin <[EMAIL PROTECTED]> To: nerajov <[EMAIL PROTECTED]> Sent: Wednesday, November 30, 2005 11:03 AM Subject: Russian Law Experts on 'Fairness' of Milosevic Trial
> > > 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 > > > Notes: > > [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. > > > > ****************************************************** > > URGENT FUNDRAISING APPEAL > > ****************************** > > President Milosevic has the truth and law on his side. In order to use that > advantage to achieve his freedom, we must fight this totally discredited > tribunal and its patrons through professionally conducted actions. > > The funds secured in Serbia are still enough only > to cover the expenses of the stay and work of President Milosevic's legal > associates at The Hague (one at the time). > > *********************************************************** > > 3000-5000 EUR per month is our imminent need. > > Please send your donations to one of the following accounts: > > Jugoslawisch-Österreichische > Solidaritäts-Bewegung. (JÖSB) > Bank Austria > IBAN AT49 1200 0503 8030 5200 > BIC BKAUATWW > > or > > Committee Intersol > Bank: 'Postbank', Amsterdam, Netherlands > Accountnumber 4766774 > IBAN NL07 PSTB 0004766774 > BIC PSTBNL21 > > *************************************************************** > > For truth and human rights against aggression! > Freedom for Slobodan Milosevic! > Freedom and equality for people! > > > On behalf of Sloboda and ICDSM, > > Vladimir Krsljanin, > Foreign Relations Assistant to President Milosevic > > ************************************************************* > > SLOBODA urgently needs your donation. > Please find the detailed instructions at: > http://www.sloboda.org.yu/pomoc.htm > > To join or help this struggle, visit: > http://www.sloboda.org.yu/ (Sloboda/Freedom association) > http://www.icdsm.org/ (the international committee to defend Slobodan > Milosevic) > http://www.free-slobo.de/ (German section of ICDSM) > http://www.free-slobo-uk.org/ (CDSM UK) > http://www.icdsm-us.org/ (US section of ICDSM) > http://www.icdsmireland.org/ (ICDSM Ireland) > http://www.pasti.org/milodif.htm (ICDSM Italy) > http://www.wpc-in.org/ (world peace council) > http://www.geocities.com/b_antinato/ (Balkan antiNATO center) > www.ctrl.org DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. 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