By Anton Katz SC
The city of Volgograd in Southern Russia was previously called Stalingrad.
Stalingrad is famous for a major battle on the Eastern Front of World War II where Nazi Germany and its allies unsuccessfully fought the Soviet Union. The Soviet Union won the battle by wearing down attacking German forces over the course of time.
In court cases, the Stalingrad legal defence is a strategy used by one party to wear down the other parties by taking every possible point and appealing every unfavourable ruling. The party uses whatever means possible, fairly or otherwise, to delay proceedings. In South Africa former President Jacob Zuma has made the Stalingrad strategy in litigation famous. Zuma’s advocate stated in one of his criminal trials, “We think it is important. This is not like a fight between two champ fighters. This is more like Stalingrad. It’s burning house to burning house.”
So accused persons, who may be guilty or not guilty, who advance technical point after technical point to delay the hearing of their case are often said to be doing a Stalingrad by trying to wear down the prosecution. Indeed, it is jocularly suggested that a good lawyer can delay a case for a period, but a brilliant lawyer can delay a case for a super long time. And delays will inevitably favour one side or the other. This applies to all cases, not only criminal cases. For example, in a child custody battle, delays in finalising the case will always be to the advantage of the parent who enjoys physical custody. The longer the case takes, the more entrenched the child becomes in the physical custody of that parent. And in commercial matters, those seeking a monetary victory get frustrated by the incalcitrant debtor.
In criminal matters judges, like all people, can become frustrated by seeing wealthy accused persons abusing the system by getting off on technicalities, such as the abuses a Stalingrad strategy allows for. And this frustration is even more pronounced in respect of those who are socially and politically prominent with a powerful presence.
So, in England from the late 15th century to the mid-17th century (c 1641), a special English court called the Star Chamber (Camera stellata inLatin) was established to supplement the judging activities of the regular courts in both civil and criminal matters. The Star Chamber was set up to ensure the fair enforcement of laws against the English upper class, those so powerful that ordinary courts would never convict them of their crimes. And I suppose the curbing of Stalingrad type abuses.
Initially the Star Chamber was well-regarded because of its speed and flexibility, it was regarded as one of the most just and efficient courts of the Tudor era. Sir Edward Coke described the Star Chamber as “The most honourable court (our Parliament excepted) that is in the Christian world. Both in respect of the judges in the court and its honourable proceeding.” A feature of the Star Chamber was that it could act like a court of fairness or equity; it could impose punishment for actions which were deemed morally reprehensible but were not in violation of the letter of the law.
But as time went on, the justice meted out by the Star Chamber became arbitrary and subjective. The Star Chamber was enabled to be used later on in its history as an instrument of oppression, rather than for the purpose of justice for which it was intended.
During the reign of King Henry VIII, the Court of Star Chamber became a political weapon for bringing actions against those who opposed the policies of the king, his ministers and his parliament. By the time of King Charles I,
it had become synonymous with misuse and abuse of power by the king and his circle. Unfair and gruesome punishments were imposed. The Star Chamber was abolished in 1641.
The historical abuses of the Star Chamber are considered some of the reasons, along with English common law precedent, underlying the protections against compelled self-incrimination. The meaning of ‘compelled testimony’ under the Fifth Amendment to the US Constitution — i.e. the conditions under which a defendant is allowed to ‘plead the fifth’ to avoid self-incrimination — is often interpreted with reference to the inquisitorial methods of the Star Chamber. As the U.S. Supreme Court described it, “the Star Chamber has, for centuries, symbolised disregard of basic individual rights. The Star Chamber not merely allowed, but required, defendants to have counsel. The defendant’s answer to an indictment was not accepted unless it was signed by counsel. When counsel refused to sign the answer, for whatever reason, the defendant was considered to have confessed.”
The High Court in Pretoria recently quoted the US Supreme Court, “On the other hand, the Court has consistently used Star Chamber to develop identifiable themes: brutality, abuse of power, oppressive state might overpowering the helpless individual, and persecution. Star Chamber is usually a foil, contrasted with our own courts and legal system by adjectives like ‘hated’, ‘obnoxious’, and ‘opprobrious’…”
So, when judges and the rest of us feel a frustration at the abuse of Stalingrad tactic of delay to avoid taking responsibility and the consequences of being subject to a fair trial, we must always remember the other side of the coin. If accused persons are prevented from asserting their rights, the spectre of the Star Chamber must be kept in mind. The last thing people need are courts which are captured by the powerful.
Anton Katz is a practising Senior Counsel, former United Nations special rapporteur on mercenaries and human rights, former Acting High Court Judge, and an admitted attorney in New York. He was born and raised in Sea Point.
• Published in the September 2022 Rosh Hashanah Digital Edition – Click here to read it.
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