"The Appeals Chamber affirms the Trial Chamber's imposition of defense counsel, but reverses its Order on Modalities... the Trial Chamber should craft a working regime that minimizes the practical impact of the formal assignment of counsel, except to the extent required by the interests of justice," reads the Appeals Chamber decision signed by presiding Judge Theodor Meron.
The working regime must be rooted in the presumption that when he is physically capable of doing so, Milosevic "will take the lead in presenting his case – choosing which witnesses to present, questioning those witnesses before Assigned Counsel has an opportunity to do so, arguing any proper motions he desires to present to the court, giving a closing statement when the defense rests, and making the basic strategic decisions about the presentation of his defense".
The Appeals Chamber stresses that in practice, the trial should continue much as it did when Milosevic was healthy, but if his health problems resurface with sufficient gravity, "the presence of Assigned Counsel will enable the trial to continue even if Milosevic is temporarily unable to participate".
The precise point at which that reshuffling of trial roles should occur will be up to the Trial Chamber.
The Appeals Chamber says in its decision the right to self-representation is one of the fundamental rights of a defendant under the Hague tribunal's Statute and the International Covenant on Civil and Political Rights. This right is unquestionable but not strictly inviolable, the decision reads.
The Trial Chamber may restrict this right if "a defendant's self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial," says the decision, adding the defendant may also be removed from the courtroom if he disrupts proceedings.
Milosevic's appeal against the imposition of assigned counsel was lodged on his behalf by Steven Kay and Gillian Higgins on September 23 after they were assigned to represent him earlier that month.
The Hague tribunal assigned counsel in order to avoid further delays in the long trial after doctors established that high blood pressure prevented Milosevic from further representing himself.
This decision, however, caused more delays after defence witnesses refused to testify until the defendant was given back the right to self-representation.
Kay and Higgins managed to examine only five witnesses in 12 weeks, with Milosevic refusing to cooperate in any way. The two counsel last week asked to be relieved of duties in this trial, but a decision on this has not been made yet.
Milosevic has been on trial since 12 February 2002. He is charged with 66 counts of genocide, crimes against humanity and violations of the laws and customs of war committed by Serb troops under his command during the 1990s wars in Croatia, Bosnia-Herzegovina, and Kosovo.
The trial resumes on November 9.