Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6

1 Thursday, 30 August 2001

2 [Open session]

3 [Status Conference]

4 [The accused entered court]

5 --- Upon commencing at 10.08 a.m.

6 JUDGE MAY: Yes. Let the Registrar call the case.

7 THE REGISTRAR: Good morning, Your Honours. Case number

8 IT-99-37-PT, the Prosecutor of the Tribunal against Slobodan Milosevic.

9 JUDGE MAY: The appearances.

10 MS. DEL PONTE: Your Honours, Carla Del Ponte, appearing for the

11 Prosecution, along with Senior Trial Attorney Dirk Ryneveld, as well as

12 Cristina Romano, Milbert Shin, Daryl Mundis, and Daniel Saxon. Thank you,

13 Your Honour.

14 JUDGE MAY: Thank you.

15 The purpose of this hearing is to review the status and progress

16 of this case and, as the Rules require, to ensure that there is

17 expeditious preparation for trial, and also to allow the accused the

18 opportunity to raise issues in relation to the case, including any issue

19 in relation to his mental and physical condition.

20 Before dealing with these matters, the Trial Chamber has an

21 announcement to make concerning the conduct of the trial. The Trial

22 Chamber today is inviting the Registrar of the Tribunal to designate an

23 amicus curiae for these proceedings, and I will summarise now the effect

24 of this order.

25 The position is this: that the accused has not appointed counsel

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1 to represent him and has informed the Registrar in writing that he has no

2 intention of engaging a lawyer to do so. The accused is entitled to

3 represent himself. However, the Trial Chamber has the duty of ensuring

4 that a trial is fair and that the rights of the accused are fully

5 respected. For these reasons, the Trial Chamber invites the Registrar to

6 designate counsel as amicus curiae to assist the Court in the proper

7 determination of this case.

8 It must be stressed that the role of designated counsel will not

9 be to represent the accused but to assist the Court by the following:

10 first, making any submissions properly open to the accused by way of

11 preliminary or pre-trial motion or during the trial; second, making

12 objections to evidence and cross-examining witnesses, as appropriate;

13 third, drawing attention to any exculpatory or mitigating evidence; and

14 fourth, acting in any other way which designated counsel considers

15 appropriate in order to secure a fair trial.

16 This order will be issued today and copies will be available after

17 the hearing.

18 Turning then to the subject matter of today's hearing, we will

19 hear from the Prosecution first and then the accused. I should add this

20 at the outset: that we've received a document entitled a Preliminary

21 Motion, signed by the accused, a Response by the Prosecution, and now a

22 Notice from the accused purporting to disclaim the motion. We will

23 consider these documents in due course and give a decision about them in

24 writing.

25 Now, turning to the Prosecution. We would wish to hear about the

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1 state of readiness for the trial, the number of Prosecution witnesses and

2 a time estimate, and any matters relating to disclosure.

3 Madam Prosecutor, we have in mind that we must fix a timetable for

4 this case, including a date for a pre-trial brief and also a general

5 indication as to the date for trial, but we will also hear any submissions

6 which the Prosecution wish to make.

7 Yes, Madam Prosecutor.

8 MS. DEL PONTE: Thank you, Your Honour. Before answering your

9 questions, if you allow, I would present a request, a request that it

10 means that I'm asking that the indictment is read to the accused. I would

11 like that the Trial Chamber consider having the amended indictment read to

12 the accused because at the initial appearance the proceedings were

13 conducted properly and in accordance with the Rules of Procedure and

14 Evidence. Nevertheless, at the time the Trial Chamber exercised its

15 discretion to accept the accused's response as a waiver of the reading of

16 the amended indictment, the Trial Chamber may have not been aware of

17 certain facts which we would now like to bring to your attention.

18 At the time of his arrest, Mr. Milosevic refused service of the

19 copy of the original indictment of him. At no time during his transfer to

20 The Hague did Mr. Milosevic accept, read, or have read to him the

21 indictment upon which he was arrested.

22 Furthermore, the amended indictment was confirmed on 29 June, and

23 Mr. Milosevic appeared on 3rd of July without counsel. We understand that

24 prior to his initial appearance before this Trial Chamber, the accused

25 again refused to accept service of the amended indictment, nor had it read

Page 9

1 to him by members of the Registry staff.

2 Therefore, it cannot be said that he was aware of the charges

3 against him at the time of the initial appearance, and in light of that

4 information, the Trial Chamber may consider it appropriate to have the

5 charges read to him in English. We suggest that it be done in English

6 because it is clear that he understands English, but does not avail

7 himself of translation services in the Serbian language by wearing the

8 headphones.

9 My request, Your Honour, is that we make sure that the accused,

10 Milosevic, knows the facts that are the charges against him.

11 JUDGE MAY: Madam Prosecutor, let me ask you this: As far as

12 you're concerned, is this indictment in its final form or are you going to

13 apply at some stage to amend it before trial? Because that would affect

14 probably what we decide to do.

15 MS. DEL PONTE: Yes, Your Honour. As you know, I cannot properly

16 answer yes or no, but I can say that we are working on that because of the

17 mass graves, of the graves found near Belgrade, and that is for us another

18 investigation activity that is pertaining to Kosovo. And so it is

19 possible, Your Honour, Mr. President, that we must come out, we must come

20 out with a third amended indictment.

21 JUDGE MAY: The sensible course, it seems to us, is to consider

22 the matter of reading the charges when we have the indictment in a

23 finalised form, and we have your application and we'll have it in mind and

24 we'll consider it.

25 MS. DEL PONTE: Thank you, Your Honour. My only problem is that I

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1 don't want to have Mr. Milosevic in detention without knowing which

2 charges are against him that justifies detention.

3 JUDGE MAY: He has every opportunity of reading the indictment, of

4 which he has a copy. Meanwhile, we'll consider the problem.

5 Yes. Now, is there anything else you want to raise? Yes.

6 MS. DEL PONTE: If you allow, Your Honour, I would -- Senior Trial

7 Attorney about the question you put to us, because he is particularly

8 informed about it. Thank you.

9 JUDGE MAY: Yes. Thank you. Mr. Ryneveld.

10 MR. RYNEVELD: Thank you, Your Honours. I'd like to address you,

11 actually, on two matters, if I may, the first of which is that Your

12 Honours have specifically given a request to us to answer in terms of our

13 anticipation of when the trial might proceed, how many witnesses, and

14 matters of that nature. I must say that at this particular time,

15 especially in light of what Madam Prosecutor has responded in answer to

16 your request in terms of whether or not this is the final indictment, it

17 would be premature for me to attempt to indicate to the Court exactly when

18 matters of this nature could proceed or the number of witnesses. As Madam

19 Prosecutor has indicated, the matter is still proceeding with an

20 investigation. If we were to proceed with this particular indictment and

21 its amended indictment in its present form, I would anticipate that the

22 matter could not, in any event, proceed until next year.

23 The amount of witnesses have yet to be culled with respect to the

24 vast potential number of witnesses that we have. As you know, when we do

25 our 65 ter analysis and summary, we would be in a much better position to

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Page 12

1 give the Court an indication as to just how many witnesses they are. This

2 is a vast case, you can appreciate.

3 Something else that Madam Prosecutor has not raised is, of course,

4 in particular, Your Honour has asked about this particular amended

5 indictment. Madam Prosecutor has made no secret that she is considering

6 issuing indictments with respect to Bosnia and Croatia in the near future,

7 and I anticipate that if that were the case, that there would also be an

8 application for joinder.

9 All of those matters make it extremely complex in order for me to

10 give you the type of answer that you are now asking. That is about as

11 well as I can do at this particular point in time. There are just too

12 many variables.

13 JUDGE MAY: Mr. Ryneveld, the Chamber has considered the position,

14 and in the view of the Chamber, this matter should be ready for trial.

15 The indictment was issued over two years ago. This accused has now been

16 in custody for two months, and the matter must be readied for trial. Of

17 course, it's a matter for you what other indictments you wish to bring

18 forward. That can be done. If they're confirmed, of course, and you wish

19 to make an application to join them, we will consider that in due course.


21 JUDGE MAY: But "in due course" is not an infinite amount of

22 time. When do you anticipate that you will have the amendments ready for

23 this indictment, in any event?

24 MR. RYNEVELD: My guess, Your Honour, although I can't -- as you

25 can appreciate -- I see Madam Prosecutor is rising to her feet. Perhaps I

Page 13

1 will allow her to answer that issue.


3 MS. DEL PONTE: Thank you. Thank you, Mr. President. Our

4 preparation activity to come out with an amended indictment of Kosovo and

5 with other two indictments about Croatia and Bosnia, we have a programme

6 of investigation activity, and we think, particularly with both new

7 indictments, the beginning of October. And we are working, but it's not

8 easy, Your Honour, to make such a decision. In the same time, if, if, we

9 are ready with our investigations and we came out with the amended

10 indictment Kosovo, so-called Kosovo, I think we will need some more weeks

11 for this amended indictment Kosovo.

12 So first we will come out with two new indictments, Croatia and

13 Bosnia, and end of October/beginning of November, we will try to do our

14 best for the amended indictment of Kosovo. So let's say two months, two,

15 two and a half months more.

16 JUDGE MAY: The programme which we have in mind for this trial,

17 and I emphasise "this trial" -- we will, of course, consider any

18 applications that are made meanwhile, but it's important that this

19 indictment, having been issued, as I say, being two years old now, is

20 tried. The programme we have in mind is that a date for trial should be

21 fixed within the first two months of next year. Working backwards from

22 that date, a Pre-Trial Conference on the 9th of January. That means a

23 date for the Prosecution pre-trial brief on this indictment would be

24 something towards three months' time, the 26th of November.

25 Now, that is the timetable that we have in mind fixing. There

Page 14

1 must come a time when the matter is ready for trial and comes to trial,

2 with respect, and that time is coming. So that is the timetable which we

3 have in mind to impose, without hearing -- it may be appropriate that we

4 could deal with the other matters you have in mind at the end of October,

5 on the 29th of October. That may be suitable to deal with any other

6 matters which you want to raise and any matters which the amicus wants to

7 raise by way of any pre-trial motions.

8 MS. DEL PONTE: Yes, Your Honour. I take notice of that. I think

9 we can manage that. I must confirm that we are trial ready for this

10 indictment, but obviously it is not our -- our work is not finished and so

11 that is what caused our problems. But for this indictment, we are trial

12 ready.

13 JUDGE MAY: Well, that will be the timetable, and you can work

14 towards it.

15 MS. DEL PONTE: Yes, Your Honour. Thank you.

16 [Trial Chamber confers]

17 JUDGE MAY: Yes.

18 MR. RYNEVELD: If I may, I indicated, Your Honour --

19 THE INTERPRETER: Microphone for the counsel.

20 MR. RYNEVELD: If I may, I indicated that there were two issues.

21 The -- oh, yes. I've just been -- perhaps before I deal with the second

22 issue, Your Honour might just clarify. When you said October 29th for the

23 joinder application, I'm not quite sure exactly what Your Honour had in

24 mind.

25 JUDGE MAY: Simply that of the next status conference and, if

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1 necessary, the hearing of any motions on that day.

2 MR. RYNEVELD: Yes. No, I appreciate -- that is your proposal for

3 the next Status Conference date. Yes. All right. That explains that.

4 The second issue, Your Honours, deals, of course, with the

5 Prosecution's concern that the accused is -- continues to be

6 unrepresented, and Your Honour has very clearly indicated what your --

7 what the Court's proposal is, or what the Court's decision is with respect

8 to dealing with that matter. We had intended to ask the Court to consider

9 the appointment of Defence counsel. The amicus, of course, under Rule 74,

10 and Your Honour has quite correctly pointed out that this is -- the amicus

11 is intended to assist the Court. And the point that I believe I must

12 raise is that, of course, the role of Defence counsel is to assist the

13 accused.

14 Now, the four points by which the amicus would be assisting the

15 Court quite clearly are intended to assist the Defence, to ensure that the

16 interests of justice are being met. I accept that, but I wonder whether

17 the Court, in addition to appointing an amicus curiae, would also consider

18 whether or not it would be appropriate to assign a Defence counsel for the

19 accused in these proceedings.

20 The function or the role for each is distinct, and Your Honours

21 have quite carefully pointed out that the role of an amicus is to assist

22 the Court. It is our view, however, that the Court may also wish to

23 consider the appointment of a Defence counsel.

24 For example, one of the issues that Your Honour has already

25 raised, the confusion with respect to his original document that he filed,

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1 which was the preliminary protective motion wherein he purported to submit

2 paragraph 8 only, we then filed a response. Then on the 27th of August,

3 he filed a document entitled The Registry which may be interpreted as a

4 withdrawal of that earlier motion. These matters, if counsel were

5 assigned to him, these matters would not be as confusing.

6 The second thing is - and I believe this is something that the

7 Court would ask us to address in any event - the Prosecution has now

8 complied with its obligations under Rule 66(A)(i) in that we have

9 disclosed to the accused, in a language which he understands, all of the

10 confirming materials for the -- that supported the amended indictment and

11 all statements, et cetera, under Rule 66(A)(i).

12 My understanding is that the time for which he has to file any

13 motion under Rule 72 is 30 days. From the 10th of August, time is

14 running, and again that's another situation where we submit it would --

15 the interests of justice would benefit from the assignment of Defence

16 counsel.

17 I appreciate that the issue of the preparation of preliminary

18 motions is one of the items enumerated in the Court's proposal as to the

19 role of amicus curiae, and perhaps Your Honours' assignment of an amicus

20 curiae will deal with many of the issues that the Prosecution had

21 anticipated. However, it would still be our recommendation and our

22 request that you consider appointing not only an amicus but a Defence

23 counsel. That is our request.

24 JUDGE ROBINSON: Mr. Ryneveld, I have heard your submission.

25 However, I do not consider it appropriate for the Chamber to impose

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Page 18

1 counsel upon the accused. We have to act in accordance with the Statute

2 and our Rules which, in any event, reflect the position under customary

3 international law, which is that the accused has a right to counsel, but

4 he also has a right not to have counsel. He has a right to defend

5 himself, and it is quite clear that he has chosen to defend himself. He

6 has made that abundantly clear.

7 The strategy that the Chamber has employed of appointing an amicus

8 curiae will take care of the problems that you have outlined, but I stress

9 that it would be wrong for the Chamber to impose counsel on the accused,

10 because that would be in breach of the position under customary

11 international law.

12 MR. RYNEVELD: Thank you, Your Honours. I appreciate that Your

13 Honours have taken our request into consideration.

14 JUDGE MAY: Let me add this, Mr. Ryneveld: Yes, that is the view

15 of the Trial Chamber, that it would not be practical to impose counsel on

16 an accused who wishes to represent himself, but the point should be made

17 and so that the accused can hear it, that the amicus is not there to

18 represent him but to assist the Court, the point that you were making.

19 And what the amicus cannot do is put forward a positive Defence case.

20 That would be the role of Defence counsel or the accused. Now, the

21 accused may wish to reflect on that fact when he's considering his

22 position.

23 Yes. Your next point, Mr. Ryneveld.

24 MR. RYNEVELD: I just wonder, Your Honours. I've also mentioned

25 the fact that the accused has indicated in writing, and I wonder whether

Page 19

1 maybe we could get a copy of his request to represent himself. We didn't

2 have that.

3 JUDGE MAY: Yes. That can be done.

4 MR. RYNEVELD: I believe those are the only points that we wish to

5 raise at this particular point. Thank you.

6 JUDGE MAY: Yes. Thank you.

7 [Trial Chamber confers]

8 JUDGE MAY: Turning then to the accused. Mr. Milosevic, are there

9 any issues you wish to raise in connection with your case or with your

10 physical and mental condition?

11 You know the rules. No speeches at this stage. You'll have the

12 opportunity to defend yourself in due course. But if there are issues you

13 want to raise about the case or about your conditions, then this is your

14 chance to do so.

15 THE ACCUSED: Well, I would like to know, first of all, can I

16 speak or you are going to turn off my microphone like first time?

17 JUDGE MAY: Mr. Milosevic, if you follow the rules, you will be

18 able to speak. If you deal with relevant matters, of course you will be

19 able to speak.

20 THE ACCUSED: Well, that is my next question. I would like to

21 make presentation on the illegality of this Tribunal.

22 JUDGE MAY: You've already put a motion in on that topic. Are you

23 asking to be able to address it -- the Chamber orally on that topic?

24 THE ACCUSED: If I cannot make the presentation orally that can

25 take 40 minutes, I will give that in writing, and my --

Page 20

1 JUDGE MAY: Yes. Well, why don't you -- sorry.

2 THE ACCUSED: My associates will give it to the press if you

3 don't allow me to make it public here.

4 JUDGE MAY: If you make it in writing, it can be made public in

5 due course. If you have it in writing, it may be more convenient to deal

6 with it in that way.

7 THE ACCUSED: Well, that is your decision.

8 JUDGE MAY: Very well.

9 THE ACCUSED: So we have to communicate as civilised persons, not

10 with switching off the microphone or to use the force for that so we can

11 understand each other, what is possible, what is not. So I will leave it

12 to you in writing.

13 JUDGE MAY: Very well.

14 THE ACCUSED: And if I can comment what I just heard. That was

15 very interesting what I heard now, and that is proving what I said 3rd of

16 July in this room, that that is false indictment. I was indicted 26th of

17 May, 60th day of NATO aggression against Yugoslavia, when I was defending

18 my country; and there are two and a half years from that date, and we just

19 heard that they have no evidence, that they cannot complete indictment, in

20 two and a half years. It is very long time for false indictments to be

21 completed, and what we heard, that was proving that. And of course,

22 having in mind that I'm not recognising this Tribunal, having a clear

23 opinion, which is proved by legal facts, that this Tribunal is illegal, I

24 don't see why I have to defend myself in front of false Tribunal from

25 false indictments. That's another -- that's another explanation.

Page 21

1 If you allow to me, I would ask some questions to you concerning

2 my position in illegal imprisonment.

3 JUDGE MAY: You can't ask us any questions, but if there are

4 issues you want to raise about that, you can do so.

5 THE ACCUSED: Well, I'm, by the order of this illegal institution,

6 in total isolation, and my question is: Why am I isolated from my

7 family? Why my family cannot visit me the same way as the others have

8 that possibility? Why the visits of my family are monitored? Why you

9 need monitoring of my talks with my grandson, who is two and a half years

10 old? So why you are making all those acts of massive violation of my

11 rights? Why I am isolated from the persons who would like to visit me and

12 who I need to talk and to discuss different legal aspects of my position

13 in this illegal imprisonment?

14 JUDGE MAY: Just pause there. The Rules governing the detention

15 are a matter for the Registrar. If they are being applied differently to

16 you to anybody else, we will inquire.

17 THE ACCUSED: It is --

18 JUDGE MAY: Just a moment. The difficulty about the lawyers is

19 this: that you have not yet selected or nominated a lawyer, and the Rules

20 allow legal visits from a nominated lawyer. Now, is this your position:

21 that you wish to represent yourself, you do not wish to appoint a lawyer,

22 but you do wish to have access to legal advice? Does that summarise your

23 position?

24 THE ACCUSED: Well, it is clear that it is my right to contact

25 different experts for different aspects of my position in illegal

Page 22

1 imprisonment, and in addition to that, I have the right to contact lawyers

2 who are dealing with my private affairs in Yugoslavia. I have the right

3 to contact lawyers who are engaged within some international organisations

4 who are supporting me. I have right to communicate with that people, and

5 I cannot understand how that will be established on a discriminatory

6 basis. As I understand, all system of UN is based on the principle of

7 non-discrimination, and I am discriminated all the time from the first day

8 I got in.

9 JUDGE MAY: The problem, Mr. Milosevic, is that you have not

10 nominated a lawyer. If you had nominated a lawyer, the matter would be

11 clear. The staff here have to follow the rules, and the person who is

12 allowed the legal visits is your nominated lawyer. But you say there are

13 essentially two matters on which you want advice. You want advice, first

14 of all, on your position here, on these proceedings; you also want advice

15 about your affairs in Yugoslavia. Is that right?

16 THE ACCUSED: Of course it is right, and many other things I have

17 in mind what I have to talk about with the persons who would like to visit

18 me and to contact me.

19 JUDGE MAY: The Trial Chamber will look into these matters. We'll

20 consider it.

21 THE ACCUSED: The third question is why I am isolated from the

22 press, especially in the circumstances in which every single day there is

23 something printed or broadcast against me as a pure lie? So you are

24 keeping me in isolation not to communicate to the press even by telephone,

25 which is only -- which is available to me. There are some representatives

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Page 24

1 of the press. Maybe there are somebody within them who would like to know

2 the truth. I believe that nobody has to be afraid of the truth, and if

3 there is on one side all that machinery you represent, all that secret

4 services, military machinery, media machinery, and everything else, and on

5 my side is only the truth, if you are isolating me from the communications

6 with the press, then it is clear that it is completely discriminatory, and

7 you cannot even mention the idea of even-handedness in any kind of that

8 procedure you have in mind.

9 JUDGE MAY: Mr. Milosevic --

10 THE ACCUSED: And please, I want to remind you, I'm not

11 recognising this Tribunal, considering it completely illegitimate and

12 illegal, so all those questions about counsels, about representations, are

13 out of any question. I saw in newspaper that --

14 JUDGE MAY: Very well. Mr. Milosevic, there must be an end to

15 this. Just one moment. Let me deal with the matters you raised. The

16 Rules of the Detention Unit provide that there should not be communication

17 with the press. Those are the Rules and they must be followed. They

18 don't discriminate against you. They are applied to all the accused who

19 are in detention.

20 As for your point about not recognising the Tribunal, you have

21 made it and we have heard it and there is no need to repeat it.

22 Now, is there anything else you want to add?

23 THE ACCUSED: Well, I understood that they were dealing with that

24 problem of illegality of the Tribunal as a problem of jurisdiction. It is

25 clear to any lawyer in the world that question of jurisdiction can be open

Page 25

1 when juridical institutions are concerned, and you are not juridical

2 institution; you are political tool.

3 JUDGE MAY: You've made all these points. Mr. Milosevic, we're

4 not going to listen to -- we are not going to listen to these political

5 arguments. You have your motion on jurisdiction which you can put in and

6 which we will consider.

7 THE ACCUSED: But that is not a question of jurisdiction, just

8 because of that --

9 JUDGE MAY: We will consider it.

10 THE ACCUSED: You are political tool of those who --

11 JUDGE MAY: Very well. This hearing will be adjourned now until

12 Monday, the 29th of October.

13 --- Whereupon the Status Conference adjourned at

14 10.47 a.m. to be reconvened on Monday, the 29th day

15 of October 2001