Fairness of Karadzic trial in question

On September 13th 2010, following Dr Radovan Karadzic’s ‘17th Motion for Finding of Disclosure Violation and for Remedial Measures’, Trial Chamber III of the International Criminal Tribunal for the former Yugoslavia (ICTY) announced a suspension of the trial to allow the him an opportunity to review 1,072 items, amounting to 5,740 pages, of potentially exculpatory (Rule 68) evidence. This material had been disclosed to the Mr Karadzic on August 31st 2010, yet was in the possession of the Prosecution since January 2010. This disruption followed close on the heels of a two week trial adjournment to provide Mr Karadzic with an opportunity to review yet more belated disclosure.
Commentary by Wayne Jordash*
At the time Mr Karadzic’s trial was about to commence the received wisdom determined that his intended self-representation was an obstacle to the administration of justice that ought, therefore, to be prevented or severely curtailed. This popular view manifested itself in various ways, including unedifying calls to ‘tighten [the] leash on Karadzic’. Surprising as this may seem for those who adopt this view, perusal of the trial transcripts and the filings reveals a co-operative and diligent accused contributing meaningfully and effectively to the smooth running of the proceedings. Mr Karadzic, having delivered a flamboyant, and in parts, controversial, opening statement has set about his defence with courtesy and conviction, with the clearest intention to focus on the charges and to defend himself within the limits of the ICTY’s Statute, and its Rules of Procedure and Evidence.
It is, therefore, with more than a touch of irony that the recent disruptions to the trial process should emanate from difficulties created by the failure of the Prosecution to abide by the obligations imposed by the Tribunal’s own disclosure regime to promptly disclose evidential material. Rule 66(A)(ii) requires the Prosecution to make available to the Defence “copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial, and copies of all transcripts and written statements taken in accordance with Rule 92 bis, Rule 92 ter, and Rule 92 quater”. This must occur, furthermore, within a time-limit imposed by the Trial Chamber or Pre-Trial Judge (in the Karadzic case, 7th May 2009). Rule 68 requires the Prosecution, as soon as practicable, to “disclose to the Defence any material which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the Accused or affect the credibility of Prosecution evidence”.
ICTY jurisprudence explicitly acknowledges (although frequently fails to uphold in practice) the fundamental importance of fulfilment of these obligations in the realisation of a fair and expeditious trial. The obligations on the Prosecution are central to ensuring, inter alia, that the Accused receives the evidentiary material, on which the Prosecution’s case is based, prior to commencement of the trial. This, of course, is necessary if the Accused is to have adequate time and resources to examine all of the evidential material and a reasonable opportunity to present a defence. As any defence lawyer will appreciate, the importance of prompt disclosure of evidential material cannot be overstated – and this is especially apposite in relation to indictments alleging joint criminal enterprises spanning years of armed conflict. The devil of a Prosecution and Defence case is in the detail provided by this disclosure. The smallest of details may prove important and the more that are available at an early stage the better. This aids the taking of instructions, detailed investigations, the planning of overall strategy, and trial management, including efficient and focused court sessions.
Accordingly, the disclosure problems that are now beginning to bedevil the Karadzic trial cannot be dismissed as unimportant. From April 2010 to date, Dr Karadzic has filed 19 Motions for violations of disclosure of evidential material. The Trial Chamber has found violations amounting to over 40,000 pages of late disclosure, many of the items (arising from the application of both Rules 66(A)(ii) and 68), disclosed more than one year after they came into Prosecution’s possession. Whilst it has been consistently acknowledged, by both the Accused and the Trial Chamber, that the Prosecution has acted in good faith throughout, taking unprecedented steps to improve its handling of hundreds of thousands of pages of potential disclosure from its numerous databases, the scale of the problem and the effect on the fairness and progress of the trial ought now to be crystallising into a major cause for concern.
Accordingly, the Trial Chamber’s continued refusal to provide a remedy for any of the Prosecution’s violations, described by Dr Karadzic as creating “a kind of impunity”, will likely prove impossible to sustain. As the 7 May 2009 date for service of all Rule 66(A)(ii) material and the 20 July 2010 date – stated by the Trial Chamber as the date when all the Rule 68 material ought to have been disclosed (see 20 July 2010 Decision) - recedes into the distant past, this refusal becomes increasingly untenable. The problem can no longer be assessed restrictively – on a document by document basis – but must be viewed in its totality. The Karadzic case has involved the disclosure of nearly 2 million documents on the Accused and his legal team over the last 2 years. The late disclosure of an additional 40,000 documents only adds to the obvious problems that such a case causes for any Accused, self-representing or not, especially facing a Prosecution which has benefitted from a full 15 year head-start!
Putting aside the loss of cross examination opportunities from late disclosure, there is an almost incalculable loss of overview and strategy arising from the drip-feeding of evidential material. An Accused ought to have the right to ‘receive the most complete information regarding the charges against him in order to prepare his defence under the best conditions’, rather than being constantly thrown off-balance by having to review and incorporate thousands of pages of new evidence throughout the trial. Accordingly, this persistent problem, and its potential to derail the progress and fairness of the trial, must be dealt with robustly, as it would undoubtedly be if the problems emanated from the Accused. Fairness requires, at a minimum, a significant halt to the proceedings or the exclusion of new evidence. The case must stop growing at some point, and – even more importantly – that point must come early enough to allow the Accused to proceed with full knowledge of the case he must defend. The fair adjudication of the charges and fairness to the Accused depends upon it.
In the meantime, it ought to be acknowledged that the real problem arises from the disclosure regime developed at the ad hoc tribunals, which places huge demands upon the Prosecution, whilst denying the Defence direct or easy access to the case materials. Of particular concern is Rule 68 which places the burden upon the Prosecution to decide what constitutes exculpatory evidence and thereafter to disclose it. Providing the means for the Defence to be at the forefront of these decisions may well be one way to relieve the Prosecution of some of their obligations whilst placing these decisions where they patently ought to be – with the Accused preparing a defence. An examination of the Rules governing disclosure comes too late for the beleaguered parties in the Karadzic trial but, nonetheless, it is not too late to assist in the event that the remaining fugitives are eventually brought to trial.
* Wayne Jordash specialises in criminal defence with extensive experience in all kinds of criminal cases, included at the trial and appellate level in the UK. Wayne's practice is currently focused on international criminal law and human rights law and he has appeared as counsel before the International Criminal Tribunal for the former Yugoslavia (ICTY), Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL). Currently Wayne is defending in Prosecutor v. Stanisic (Ex - Head of the State Security of Serbia) at the ICTY, involving charges of war crimes and crimes against humanity.

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