1 Tuesday, 2 September 2003
2 [Pre-Defence Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.32 p.m.
6 JUDGE MAY: The purpose of this hearing, as was set out in the
7 Scheduling Order, is to discuss the preparation and presentation of the
8 Defence case. The Trial Chamber proposes to hear relevant submissions
9 from the parties and then in due course, having considered them, to make
10 the necessary orders.
11 The scheme set out in the Rules provides that after the close of
12 the Prosecution case and before the beginning of the Defence case, the
13 Pre-Trial Judge shall order the Defence to file a list of the witnesses it
14 intends to call together with a time estimate, a summary of facts for
15 each, and an indication whether the witness is to testify in person or by
16 way of statement under the provisions of Rule 92 bis.
17 The order may also include an order for the provision of a list of
18 exhibits on which the Defence will rely, together with copies of them for
19 the Prosecution. These provisions are in Rule 65 ter (g).
20 Then, prior to the beginning of the Defence case, the Trial
21 Chamber may hold a Pre-Defence Conference and determine the number of
22 witnesses the Defence may call and the time available for presenting such
23 evidence; Rule 73 ter.
24 The Trial Chamber in this case will have to consider whether the
25 provisions which I've set out should be adapted in the circumstances to
1 take account of the fact that the accused is appearing in person. We will
2 also have to consider whether any order should be made with regard to the
3 practical arrangements for the appearance of witnesses, although this may
4 be a matter for dealing with rather later, and the Trial Chamber must
5 consider a timetable.
6 We will hear the submissions of the parties in this order: We
7 begin with the accused, followed by the amici, and followed by the
8 Prosecution. I should say that at the end of the hearing, we will also
9 deal with any other appropriate matters for a Status Conference since we
10 have some time available.
11 Now, Mr. Milosevic, we begin with you. You've heard an outline of
12 the procedure which the Rules lay down and which the Trial Chamber will
13 obviously follow, but we will hear any submissions as to a timetable that
14 you want to make or any requests for assistance which you want. Yes.
15 THE ACCUSED: [Interpretation] Yes. It seems to be switched on
17 I have heard what you have said, Mr. May, and I expect in keeping
18 with what you have just said and in view of the fact that you have
19 declared my right to defend myself or, rather, my right to defence, and
20 there I imply and mean all the other principles which you have emphasised
21 on numerous previous occasions to which you adhere in these proceedings,
22 first of all, the equality of arms and all the other principles which are
23 very well known to you all.
24 As you have declared my right to conduct my own defence, I
25 understand that I should also be acquired the same rights that the
1 defender has for an adequate defence, and this implies both the time
2 necessary and the conditions required for this.
3 Now, when we look into the question of time, first of all, I place
4 the witnesses, because I assume that somebody defending himself has the
5 right to direct and unsupervised contact with potential witnesses, and to
6 all intents and purposes that means that if I were to bring forward as
7 many witnesses as the opposite side has brought forward to date - and I
8 don't know how many more witnesses the Prosecution is going to come up
9 with, and I'm sure there are many more of them - then it is quite obvious
10 that there will be a large number, and for comparison purposes, we can
11 take the time used up by the other side to prepare its witnesses.
12 Apart from that, I should also need free and unsupervised access
13 to sources of information and documents, and I should like to remind you
14 that the opposite side itself disclosed about half a million pages, and
15 that is not the most important matter that I should have access to. I
16 have to have access to many other sources and take all those into account
17 too, because there are my own documents, documents which relate to all the
18 issues raised thus far during the testimonies of all the witnesses that we
19 have heard here and presented by the opposite side, and the concept in
20 general terms which they have.
21 Therefore, if we take all this into account, there are two basic
22 issues: One is the question of time and the other is the question of
23 circumstance. And I think if we take into account the significance of the
24 trial itself, you yourselves and the opposite side over there have on
25 numerous occasions emphasised that this is the number one trial, the
1 largest in scope, incorporating Kosovo, Bosnia-Herzegovina, Croatia, and
2 if we were to compare it to the other trials, or rather, with the practice
3 put into place with the other trials, then it becomes quite clear that we
4 shall need a good amount of time and that time -- the time needed would
5 actually be endless. But if we bear in mind the time that was given to
6 the other side to prepare its witnesses, the time that I shall need for
7 direct and unsupervised contact with my witnesses, direct and unsupervised
8 contacts and access to documents and so on and so forth, then this implies
9 that I would need the conditions necessary for me to prepare my trial at
10 liberty -- while at liberty. And I cannot even begin to calculate how
11 much time I would need and what would be adequate if I were to compare it
12 to the time used up by the other side, especially if we bear in mind how
13 many representatives and people are in fact representing that other side
14 over there. But even the barest minimum of the time that I would need, in
15 my opinion, would have to be in excess of two years.
16 So that, then, would be -- those, then, would be the facts in
17 keeping with your Rules of Procedure and if we compare what the other side
18 had, of course far more modestly, several times less than the other side
19 had. And if I'm realistic --
20 JUDGE ROBINSON: Just to clarify. In excess of two years to
21 prepare for the trial or to present your case?
22 THE ACCUSED: [Interpretation] I need that for preparation, because
23 the opposite side, for its preparation of the trial, if you remember the
24 indictment for Kosovo was raised in May 1999, that is to say four and a
25 half years ago, and in the meantime, we had all sorts of witnesses coming
1 forward, depositions, statements, and so on, and some of them even go back
2 to 1993, 1994, and 1995.
3 So therefore, even if I am extremely modest, I'm not actually
4 comparing what the other side had to what I myself would need. And I
5 think that in a symbolic way, you would be expressing the principle of the
6 equality of arms if you were to give me this modest amount of time.
7 So, Mr. Robinson, as I said, if I had to do the job, to do the
8 work in a direct manner, unimpeded contacts, unsupervised contacts with a
9 number of witnesses with just the same amount of witnesses that the other
10 side had, then I would need at least that much time. So I feel that the
11 least time I need is what you will find acceptable. And I'm talking about
12 aspects which I consider to be essential, once again time and the
13 conditions and circumstances under which I'm able to prepare my case for
14 me to be able to have the possibility of realising the right you have
15 accorded to me yourselves, because you know that there are no small
16 defences or semi-defences. All that we can talk about is an adequate
17 suitable defence. So for an adequate and suitable defence, a lot of work
18 has to be got through, and I would need at least the time that I have
20 If I'm not accorded that, then that would mean that all that is
21 allowed here is the prosecution and not the defence.
22 JUDGE MAY: Very well.
23 [Trial Chamber confers]
24 JUDGE MAY: We consider the submissions made by the accused. The
25 first matter to deal with is the issue of provisional release. That is a
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 matter upon which we have already ruled. We have ruled that the accused
2 cannot be released provisionally, and there is no reason to change that
3 ruling now. That means that the accused must make the preparations for
4 his defence while he is in custody. That too is a matter which we have in
5 mind. We also have in mind the resources which the Prosecution have as
6 against the resources which he has. There can be no question during a
7 trial of a break of two years. However, we will consider what is a
8 reasonable amount of time for the accused to have to prepare his case. We
9 will also consider, together with the Registry, what practical
10 arrangements can be made in order for him to prepare witnesses and to
11 prepare exhibits and generally to prepare his case.
12 Now, Mr. Kay, is there anything you want to add to that?
13 Yes. Judge Robinson adds this: There is one other matter that we
14 should deal with, Mr. Milosevic, to give you some indication of the way in
15 which an order will be made in relation to the number of witnesses and
16 also the time that you will have available.
17 As far as the number of witnesses are concerned, that will be
18 based upon the number of the witnesses who the Prosecution call, as you
19 yourself have anticipated. Allowance, of course, will be made for a
20 number of witnesses, not many to date, but a number of witnesses who have
21 not been called to testify orally but have given evidence by way of
22 transcript or by way of written statement.
23 Secondly, as to the time available, that too will be based upon
24 the time which the Prosecution have had to present their case, the time
25 spent on examination-in-chief, and re-examination in the case of the
1 witnesses. That will be calculated on the basis of the log being kept by
2 the Registry.
3 The position also is this: That allowance will have to be made and
4 will be made for those witnesses whose evidence in chief has been given
5 under the Rule which I've mentioned and has therefore been curtailed.
6 All those are calculations which we will make in due course. I
7 should of course add that the Prosecution will be subject to the same
8 rules as the Defence in relation to the length of cross-examination.
9 Yes, Mr. Kay.
10 MR. KAY: In many respects, the most important issue at this stage
11 is the length of time that the accused has for preparation. On the one
12 hand, too little time would seriously damage him in the presentation of
13 his defence and may make a valid and worthwhile case on his behalf
14 impossible. Sufficient time for his preparation is needed because of the
15 importance of this trial, the numbers of issues that he has to deal with,
16 there being three indictments involving three wars and involving two NATO
18 For any defendant to embark upon a defence case, the scale of the
19 task that he faces has to be borne in mind by the Court in setting aside
20 the time for his preparation. If we start from the date of his arrest,
21 which was in June 2001, he was very quickly at the trial stage by February
22 2002. We all know that in that period of time, there could be no
23 meaningful preparation of any defence because of the scale of the papers
24 and the issues that had to be dealt with pre-trial. Once his trial
25 started in February 2002, he, like all of us, will have been continuously
1 involved in dealing with the many issues that the case has provided us,
2 issues involving witnesses as well as evidence as well as law. It would
3 not be right to think that during this trial there has been sufficient
4 time for him to embark upon meaningful preparations of a defence. The
5 reality is that is simply not possible.
6 If the accused has now the idea of the number of witnesses that he
7 may call and the time that is available to him, that at least gives a
8 scheme into which a defence strategy can be inserted, but account has to
9 be taken, of course, that preparations that he will require will involve
10 others speaking to witnesses, others locating witnesses, others locating
11 documents on his behalf. This is not going to be an easy and simply done
13 It is apparent that he has very limited resources available to him
14 and limited support. We have all been made aware of that during the
15 course of this trial where he has had to rely upon the services of two
16 associates and whatever support they can muster, but that has been his
17 direct team here.
18 If you have resources available to you on the scale that the
19 Prosecutor has - a vast number of lawyers, support staff, investigators -
20 you can, of course, get more done quickly. You can achieve more. You
21 have the ability to directly communicate with people through enforcement
22 agencies, perhaps even governments and other means.
23 For this accused being in custody, his task is not going to be as
24 easy as that, and the opening of doors, the obtaining of witnesses, the
25 provision of evidence is going to be a very tough task, and the Court must
1 bear that in mind.
2 The Defence, in undertaking these projects, require resources
3 sufficient to enable them to undertake their task as well as sufficient
4 numbers of people.
5 In dealing with the issues that he has to deal with as the former
6 head of state, dealing with the three indictments, all the issues
7 surrounding those indictments, it must be clearly thought through as to
8 the amount of time that he will require to prepare himself for a
9 meaningful defence. He has put forward a period of time, no doubt having
10 consulted those who support him directly, aware of their limitations and
11 resources and no doubt wanting to put forward the best Defence case
13 And although it may seem a long period of time to this Court to
14 have that kind of break in a case, it does pay here to stop, pause, and
15 reflect as to the length of the time the Prosecutor has had for the
16 preparation of their cases. And I say "cases," because there are three.
17 The indictment in relation to Kosovo was issued in May of 1999. This
18 accused was arrested, as we know, in the year 2001; two years later. The
19 stage by which we got round to the Croatia aspect of the trial, that had
20 been a year in preparation. And the Bosnia stage of this trial slightly
21 over a year in preparation. And in the Croatia and Bosnia trials, they
22 were using a large degree of materials that were pre-existing from other
23 cases. This accused does not have that resource available to him. For
24 him, this is the only case, it is a fresh case, and it is a case that he
25 has to present with no previous history of litigation to draw upon.
1 In relation to any other case in this building, or shall I say
2 many other cases, where we are dealing with a defendant at the lower end
3 of the scale, there have been periods of six months' preparation given to
4 the Defence.
5 JUDGE MAY: That is not the practice now. If it was in the past,
6 it is no longer, and I would think that the average time should be about a
7 month at the most. But of course we acknowledge this is a rather
8 different case than to those.
9 MR. KAY: Yes. I remember in the Tadic case we moved from the
10 Prosecution case to the Defence case in, I think, about four weeks.
11 JUDGE MAY: That's normal in most countries. You don't have a
12 break at all. You simply start on with the defence. But we needn't
13 debate that now.
14 MR. KAY: Yes. We all acknowledge here that this is different
15 from any other case that any of us has ever been in or tried, and the
16 issues are far greater. And that has to be recognised in the amount of
17 time that this Court makes available. It may be inconvenient for the
18 system, and it may be inconvenient for the life of this Tribunal, but it
19 remains a fact that adequate and sufficient time must be granted for this
20 case because of the type of case it is and bearing in mind that this
21 accused is representing himself, which will make a number of his tasks and
22 projects in collecting defence evidence perhaps harder to achieve than if
23 he had counsel acting on his behalf able to move freely and have
24 appointments, interviews, and collect documents and make research without
1 JUDGE MAY: You refer to the convenience of the Tribunal or the
2 Court. Those, of course, are totally irrelevant matters.
3 At the same time, this is a criminal trial, and it must proceed.
4 It cannot have the break of the sort which the accused is suggesting.
5 What has to be done is to ensure that there is a fair trial, and that does
6 involve the accused in having an adequate time, which must be a matter of
7 judgement, in order to present his case.
8 One way in which it may be necessary, and I'm simply thinking
9 aloud now as you speak, but one way may be this, that it may be that the
10 hours of sitting will have to be less in order to give time for
11 preparation during the course of the Defence case. It's not, I should
12 have thought, going to be a position in which he's going to be in a
13 position to begin a case with everything prepared. I suspect more likely
14 that things will change as the case goes on as experience shows it
15 happens, and it will be necessary for some time to be set aside during the
16 case for him to prepare, to meet with witnesses and the like.
17 JUDGE ROBINSON: Mr. Kay, I was going to put you on the spot by
18 asking based on the experience that you have had in this case, your
19 familiarity with the issues, what in your view would be an appropriate
20 time for preparation?
21 MR. KAY: It depends on resources, of course, and lack of
22 resources puts people under enormous pressure in this case to achieve as
23 much as they would otherwise like to achieve.
24 It's unclear to me exactly what resources will be available to the
25 accused, what he has available to him, because those are his own affairs
1 and own business.
2 JUDGE MAY: Well, he has shown in cross-examination that he has a
3 great deal of material available to him, very detailed cross-examination
4 of a lot of witnesses, which must have been based on material.
5 MR. KAY: Yes. Plainly material is able to be obtained by him for
6 that purpose. As to presentation of defence material in the presentation
7 of your own case, that's rather a different matter. Many a football
8 manager says it's easier to attack than to defend, and one can understand
9 that when you've got the responsibility of presenting the issues through
10 your own witness and draw the picture you want to draw that that requires
11 more resources. There can be no doubt the kind of case we're looking at
12 with the defendant is a case that will involve a great deal of
13 documentation, more documentation for the Court and documentation that he
14 would rely upon to put his side of the issues.
15 I'm conscious I've ducked His Honour Judge Robinson's questions so
16 far, but I did hedge about it on the question of resources, which I don't
17 mean a disrespect to Your Honour. It just does make a difference in
18 planning this case. On behalf of the amicus curiae, we had to set out
19 what our resources were available and who undertook what tasks and we've
20 had to revise and change as resources have changed during the course of
21 the trial. I don't know if you want me to be more specific and --
22 JUDGE ROBINSON: I wouldn't press you any further.
23 MR. KAY: I'm grateful, but I hope that I've dealt with that. Of
24 course, a background feature of this is the question of facilities and how
25 easy it is. You can give someone two years, but it would be impossible
1 because they don't have the facilities and resources to undertake the
2 planning and preparation that they have to undertake. You can give
3 someone a lesser period of time and, with greater facilities and
4 resources, it can become possible.
5 There's no doubt that he is going to be presenting his witnesses,
6 calling his witnesses and asking the questions himself, and that will
7 require him to have interviewed them, obviously, and the witness and he
8 familiarise themselves with any documents and the order by which they're
9 going to present material to the Court. That would be in the Court's
10 interest because, plainly, to have a disorganised preparation because the
11 accused has not been able to have the opportunity to speak to the witness
12 in advance and undergo such preparation would cause the proceedings later
13 on to be less organised and more dysfunctional than they might otherwise
14 have been.
15 So such facilities for him to operate as his own counsel and
16 interview witnesses and go through documents with them, which must, of
17 course, respect his privacy and matters of privilege with those witnesses,
18 will be of great importance. I can't envisage that this is something that
19 could be done whereby someone undertakes it on his behalf and then a
20 witness is called in and then for the first time Mr. Milosevic has to ask
21 them questions and go through documents.
22 JUDGE MAY: This is the proofing of the witness.
23 MR. KAY: Yes.
24 JUDGE MAY: You say that should be done by the accused who is
25 going to call the witness.
1 MR. KAY: Yes. I had in mind preparation in the sense that I
2 would imagine the proofing was -- there would have been a statement taken
3 by an associate to give the reason for the witness to come and be put on a
4 list, and then Mr. Milosevic speak to the witness and go through the
5 evidence with them. I should imagine a proof first of all would be taken
6 by someone else, but the preparation and running through it, in the way
7 that the Prosecutor does for the summaries of their witnesses, would be
8 something he would want to do. And in my submission, that would be in the
9 Court's interest.
10 Such materials that they bring with them as well would have to be
11 prepared and prepared in a way so that the Court and the Prosecution,
12 Registry, had documents in advance from a witness. The Court would not
13 want a witness suddenly producing documents that Mr. Milosevic may not
14 have seen that the witness thinks are material. And facilities that would
15 enable that kind of preparation to be taken within the facilities of the
17 At this stage it's still very difficult, I should imagine, for him
18 to give an indication of which witness or numbers of witnesses. The
19 Prosecution case is still open, we still have a large number of witnesses
20 to come to court to be heard, and we know that that list is still not
21 closed as far as they are concerned; there are new witnesses being added
22 every week.
23 [Trial Chamber confers]
24 JUDGE MAY: We're not asking for any indication now.
25 MR. KAY: I'm putting that forward so the Court is aware of that
1 in terms of issues as far as he is concerned.
2 That's all I need say on the matter for the moment. The two big
3 issues are the facilities and the amount of time he be given for his
4 preparation. I don't know if I can help the Court any further.
5 JUDGE MAY: No. Thank you very much.
6 The Prosecution.
7 MR. NICE: Procedurally I respectfully suggest that the Chamber is
8 in a position to merge 65 ter and 73 ter by provisions of 65 ter (m)
9 whereby the Trial Chamber takes the functions of the Pre-Trial Judge, and
10 it would seem to us that the Chamber is well within its powers to make
11 effectively definitive orders ahead of the termination of the
12 Prosecution's case because it's dealing with a litigant in person. Any
13 represented accused's lawyers would know ahead of the close of the
14 Prosecution case that they would be being put on the spot as to witness
15 lists, exhibit lists, and summaries, and would inevitably be preparing in
16 advance of the close of the Prosecution case so that the orders made
17 thereafter, as Your Honour has said, typically to allow no more than a
18 month of preparation time would not surprise or inconvenience Defence
20 So it's our submission the Chamber is absolutely right to proceed
21 in the way it is doing and would be justified in making effectively final
22 orders in respect of the accused although the orders could only take final
23 effect after the conclusion of the case if the Rules are to be honoured.
24 How much time should be allowed? This is a matter for judgement
25 by the Trial Chamber, and I don't intend, unless pressed, to volunteer a
1 period save to say that it is in the very limited number of months at
2 most, and respectfully to remind the Chamber that there is a significant
3 difference between the position of the accused and the position of the
4 Prosecution. Attention has been drawn to differences in forensic
5 resources, though of course, as the Chamber may know of the case of
6 Kayishema, on appeal, I think it's been held, I think it's an appeal case,
7 that the -- it may have been the Trial Chamber, but Article 20 deals not
8 with equality of resources but equality of rights, and that's what one has
9 to have in mind. And of course the difference between the accused and the
10 Prosecution here includes that he was either the participant or certainly
11 a major participant who knows from his own knowledge what the truth was
12 and doesn't have to investigate in order to discover that truth by the
13 necessarily complicated and complex methods that we do. So he knows
14 immediately what evidence he has to call, and things are much less
15 complicated for him in that respect than it is for us.
16 We would also observe, as Your Honour has touched upon already,
17 that he has never been at a loss for a question in cross-examination, and
18 in the majority of witnesses, if not very nearly every witness bar a few,
19 has sought more time to deal with what he says are outstanding questions.
20 I hear what Mr. Kay says about the limitations on his resources.
21 Information coming to us is necessarily somewhat anecdotal, but it has
22 been our understanding that he is, if not in The Hague then elsewhere,
23 extremely well resourced as evidenced by his questions.
24 It should also be borne in mind that the very substantial
25 resources of the Office of the Prosecutor have been in very large measure
1 turned to what I think His Honour Hunt has described either as a parallel
2 case or a case of equal importance to the Prosecution case, namely the
3 case whereby we turn over to the accused material that is favourable to
4 him to assist him, and therefore a large amount of preparatory work that
5 he might otherwise have wanted to do for himself has been done for him by
7 As to the problem of his contact with witnesses and the
8 preparation of those witnesses and his preparation for trial generally, he
9 elected to appear unrepresented despite the clear opportunity for him to
10 have assistance. I'm not going to revisit really at all the question of
11 having Defence counsel imposed on him, although the Chamber will be
12 probably aware of what has happened in the case of Seselj, where something
13 called "standby counsel" has been assigned. And the Chamber may want to
14 consider its powers in relation to that sort of possibility as it will no
15 doubt want to consider whether an accused will need - whether he
16 recognises it himself or not at the moment - the services of someone to do
17 for him what is done for us by our case managers, today Ms. Dicklich, but
18 as you know, also others. He needs that resource. It's available to
19 him. To make use of it if it could be made available to him would in no
20 way come between him and his decision to be unrepresented, because it
21 would be administrative assistance. To do without it when it would
22 undoubtedly, by one means or another, be available to him would be simply
23 to be cutting off his nose to spite his face, and that's not an action of
24 his that should be allowed to justify an extension of an otherwise
25 suitably -- suitable time limit.
1 JUDGE MAY: Plainly the fact that he is representing himself
2 cannot be allowed to give him advantages, but at the same time, one has
3 got to consider the reality of the position, that that has been his
4 position throughout, that he wishes to represent himself and does not want
5 counsel. There are matters of indigency which have to be considered in
6 relation to any assistance he is to have, and at the moment, of course,
7 there is no such finding in his case. So at the moment we must proceed on
8 the basis of his representing himself.
9 MR. NICE: I see all that, Your Honour, but I would invite the
10 accused, through the Chamber, to see the sense of providing himself with
11 the appropriate professional assistance to make his task easier,
12 recognising that if he doesn't take that obvious and sensible step, he may
13 be doing nothing but harming his case, because there will come a limit to
14 the amount of time that can be given to him simply on the grounds that he
15 chooses to do every task himself when it's unrealistic for him to do so.
16 JUDGE MAY: The position of the case manager is really the one
17 that you're mentioning.
18 MR. NICE: It's an extremely important position because it also
19 enables there to be communication between the accused and the other organs
20 of the court on a regular basis without any prejudice to the accused's
21 defence but in order to ensure that time is well used and that documents
22 are available and so on and so forth.
23 Can I deal with the proposition that he must necessarily be
24 entitled to speak in advance of calling witnesses with every witness? I
25 can see, of course, the immediate and instinctive attraction of that as a
1 proposition. I venture the following few observations: The Chamber will
2 know, of course, that there are jurisdictions where not only is that not
3 something that happens naturally but doesn't happen at all, where
4 witnesses are always prepared by others and taken in court by the
5 advocate, he being freed of the embarrassment of having to talk to the
6 witnesses himself for fear of in any sense corrupting them. That may be a
7 slightly passing tradition in some countries, but it isn't necessary for
8 somebody who presents a case to have spoken to each and every witness. He
9 has people working for him, his associates. They are capable of preparing
10 witnesses. He can then take them.
11 And as a matter of fact, it is by no means the case that every
12 witness on this side of the court is prepared in full or even sometimes
13 very much at all by the counsel taking him. Usually they are, I accept,
14 but by no means always.
15 Second, in the accused's case, there may be examples of witnesses
16 of whom we now have one example pending in the Prosecution case. I won't
17 mention his name because there's no, I think, ruling yet as to whether his
18 name can be added to the list. But the Chamber will be aware of the fact
19 that there is a witness who the Prosecution seeks to call who declines to
20 speak to the Prosecution, and one can imagine that that may be something
21 that will happen with the accused from time to time, and therefore he
22 won't be able to speak to all his witnesses personally. But that's
23 perhaps supposition. We'll have to wait and see what happens.
24 What is plain is that for him to spend an equal amount of time
25 with every witness that the witness would take in examination-in-chief may
1 slow this trial down in an unacceptable way, and he must, if he is to
2 present the case himself as he has chosen to do, use the resources that
3 are available to him to ensure that witnesses can be called comparatively
4 swiftly one after another without there being holes in the court
5 timetable, because that would be a way of his forcing the preparation to
6 be given to him that the Chamber may otherwise have decided is
7 inappropriately long. So again, I would invite the Chamber to require the
8 accused to provide witnesses in an orderly and comparatively swift way one
9 after another using whatever is appropriate for him to do so.
10 In our respective submission, is it the case that he must be
11 required to provide lists of witnesses and exhibits and summaries of what
12 those witnesses are going to say? This is not a question of serving the
13 interests of the Prosecution but of course of serving the interests of the
14 Court, because only if we know who the witnesses are and on what topics
15 they are going to give evidence can we assist the Chamber either, A, by
16 admitting the evidence of the witnesses unchallenged so that time can be
17 saved; or B, cross-examining them properly and in no wasteful way on
18 issues that should properly be raise. That's why those potentials for
19 orders exist in the Rules and should, in our respectful submission, be
20 applied to this accused as to any other period.
21 Your Honour, I don't know that there are any other matters that I
22 should raise at this stage for you to make your decision, save to observe
23 that the accused has already indicated several witnesses by name who he
24 intends to call and I think others by category, and contrary to what my
25 learned friend Mr. Kay says, there have clearly already been steps of
1 preparation taken to our knowledge and in respect of some witnesses.
2 And I think perhaps finally in relation to what he said about
3 preparation of documents, it is obvious from the range of questions he's
4 been able to ask of witnesses that he has, either personally or through
5 associates and others working on his behalf, very considerable access to
6 documents, sometimes far greater than the access that we have, and that it
7 shouldn't be assumed that he is particularly in need of time to lay his
8 hands on documents material to the defence. And I come back to the very
9 first --
10 JUDGE ROBINSON: Maybe he can give you some assistance there,
11 Mr. Nice.
12 MR. NICE: We would be very grateful. As Your Honour knows, there
13 are outstanding requests.
14 Indeed, I mean, the point Your Honour raises is an important and
15 helpful one in the same way as we have to unearth a hidden case from
16 witnesses who may be unwilling even when we track them down. We have had
17 very considerable difficulty in unlocking the doors to documents that, in
18 our submission, should have been made available to us years ago. They are
19 coming in late as we know. The accused's ready ability to cross-examine
20 suggests a greater accessibility to him.
21 Let me just check with my colleagues and see if there's anything
22 they'd like me to add to what I've said.
23 Thank you very much.
24 [Trial Chamber confers]
25 JUDGE MAY: We will hear the accused if he wishes to add anything
1 on these matters. We will not be able to sit beyond 5.00, but we may have
2 a short time to deal with any other matters that anyone wants to raise.
3 Mr. Milosevic, do you want to respond to what the Prosecution have
4 said before we adjourn to make our order? As I say, if you -- if there's
5 anything else you want to raise about anything else, we may have a few
6 minutes afterwards, but on this issue of defence preparation, is there
7 anything you want to add about that?
8 THE ACCUSED: [Interpretation] The only thing I wish to add,
9 Mr. May, is that what the Prosecution has said is absurd, that with all
10 the machinery and services they have at their disposal, they feel that
11 they are more or less on an equal footing in relation to me here.
12 I have already told you that I do not recognise this Court, so
13 this is not a trial. It is you who have said that I have the right --
14 JUDGE MAY: We've heard all this several times before. Now, do
15 you want to say anything practical and concrete about anything the
16 Prosecution says?
17 THE ACCUSED: [Interpretation] Something quite practical and quite
18 concrete, Mr. May. I said that the most modest amount of time that is
19 necessary is two years and that I would have to have unsupervised contact
20 with witnesses. Can you explain how you imagine that I can communicate
21 with the witnesses I intend to call if I am not free to communicate with
22 them? And how do you think it's possible to prepare witnesses for their
23 testimony if I do not have direct and unsupervised contact with them?
24 It is well known that all you will permit here is the Prosecution,
25 not the Defence, to present its case. Let us not pretend here that there
1 is an equality of arms.
2 JUDGE MAY: No. Mr. Milosevic, you know that is not the case.
3 We're even now discussing how to facilitate the presentation of your case.
4 As for the matter of your access to the witnesses and its being
5 unsupervised, we hear the argument. It's not a matter we can rule on at
6 the moment. Arrangements will have to be made, and practical arrangements
7 will have to be made for you to have access to your witnesses and to have
8 access to documents. Now, both of those are matters which we are going to
9 consider, and we will consider them with the Registry, and we will provide
10 a schedule or an operative scheme which will enable you to speak to your
11 witnesses. That's a matter we have in mind.
12 Now, we will move on to consider anything else which is relevant
13 that could be dealt with shortly.
14 Mr. Nice.
15 MR. NICE: First of all, we've got up-to-date witness lists for
16 distribution. I don't want to flood you with these but it's probably
17 helpful to have them from time to time updated, and this list provides
18 both the primary witnesses, both categories of 92 bis witnesses, the
19 category of witnesses who we are not -- presently not able to call but who
20 we would like to be able to call and who we provide to you in case they
21 should be names that you will want to call yourselves.
22 And that brings me back to the witness Braddock Scott, because I
23 have further researched or reminded myself of what happened and researched
24 what happened in relation to that witness, who does appear on that last
25 part of the schedule of witnesses we no longer we feel we are able to call
1 for want of time but who the Chamber might themselves want to call. And
2 indeed, it is indicated that he is one who you might want to call.
3 The position is that of course -- I can only apologise for not
4 recalling this this morning -- he was originally rejected on the grounds
5 that he was not a Rule 70 witness. The matter went on appeal. Following
6 that decision he was then a witness we could call. It probably would
7 still have been a matter for the Trial Chamber whether any conditioned
8 response -- sorry, any conditioned consent of the provider was acceptable
9 to the Chamber, but in the event, as I understand it, he can now give
10 evidence openly. So that he is an available witness but he's not one who
11 we feel we would put within the priority list of witnesses we would call
12 in the limited time available.
13 The -- you will recall that we put on the end of the very first
14 part of this schedule, at what is page 18 of the first schedule, how we
15 are doing in the table with figures at the end of it. There has been some
16 slippage so far as we are concerned in that the days of evidence by which
17 we will have to reduce our case has gone up from 18 to 22 days, reflecting
18 possibly the addition of witnesses and possibly the time taken by the
19 accused in cross-examination.
20 It's simply a useful guide to us to show how we're doing and to
21 show how much we're going to have to cut our witness list by in order to
22 meet the deadline which, on present estimates, will fall somewhere in
23 about December.
24 The Chamber will recall my mentioning at the end of the hearings
25 before the summer the possibility that with some of the upcoming witnesses
1 the Chamber might feel able, in advance of the witnesses giving evidence,
2 to ration time. This is a problem that I'd like the Chamber to consider
3 if it feels it can.
4 If we call witnesses, particularly if I can so describe them,
5 big-name witnesses, there's always the risk that they will be given so
6 much time in cross-examination that they will, by the time given,
7 eliminate other witnesses from our list, and that makes it difficult for
8 us to decide whether to call them or not. And it may be that in due
9 course - not immediately, but with some of the particularly well-known
10 witnesses who may be before you in due course - that the Chamber would
11 think it not inappropriate to say, well, the Prosecution can have an hour
12 and a half, the accused two hours, the amicus 20 minutes, and to alert the
13 accused ahead of the witness coming to the courtroom that he should
14 prepare his limited time to focus on the material issues, because it is
15 very difficult for us to budget otherwise.
16 Can I make available to you one other document which is aimed at
17 assisting the Chamber in relation to the period of time that must pass
18 between the conclusion of our case and the start of the accused's case.
19 Within that period time, any 98 bis submissions must be dealt
20 with, and I've had from the beginning of this case in mind the
21 desirability of dealing with materials so that that can be taken or dealt
22 with in an efficient way.
23 I've been able to discuss it with Mr. Kay but, of course, not with
24 the accused. I know that the amicus -- amici are preparing submissions in
25 respect of 98 bis, and it may help the accused, little though I know he
1 expresses any interest in procedure, if he focuses on this, because it's
2 designed to help him as well as Your Honours and my learned friend.
3 We have at the moment things called fill-box documents which
4 simply track the indictment, as you know, and at the moment constitute
5 bins into which bits of evidence are put that relate to particular parts
6 of the indictment, and we're updating that periodically and revising it as
7 we approach the end of our case.
8 This sheet is a proposed extract from such a fill-box document, a
9 Kosovo fill-box document, as you will see, with on the left-hand side one
10 of the allegations that has to be proved, the second column being at the
11 moment the summary of evidence that relates to that column. And then
12 what's been proposed, and I think Mr. Kay thinks this a sensible
13 suggestion, is that for either part or all of the document it will be
14 possible for him to respond to the way we summarise the evidence by the
15 sort of typical responses I've put here, either that the Prosecution's led
16 no evidence, or the evidence is insufficient, or have no comment to make.
17 The scale of those indictments, the size of them is such that we
18 need a system to deal with 98 bis submissions, because if we simply allow
19 each party to launch into narrative written submissions, it will be very
20 difficult for the Chamber to track how those submissions relate to
21 particular paragraphs in the indictment. And following the amicus or
22 amici's response, it would be open to the Prosecution to respond in
23 another column in the way that we've proposed here.
24 Mr. Kay thinks this may help him. I would be grateful for an
25 indication at some stage if the Chamber thinks this is sensible or
1 otherwise, because if otherwise I shan't spend resources on it. But if
2 the Chamber thinks this might be helpful, then the accused, if he intends
3 to take any part in this procedure that is available to him, might care to
4 use it himself. It's designed, as I repeat, to help him as well as to
5 help the Chamber.
6 JUDGE KWON: In terms of evidence Mr. Nice, do you think this a
7 comprehensive one? That means, may I take it, that if some evidence is
8 not dealt with in this schedule, can I take it that we may not consider
9 that evidence?
10 MR. NICE: It attempts to be comprehensive. Inevitably it won't
11 be. But if we come to the 98 bis stage of the argument and there's a box
12 in relation to a particular location and we haven't managed to find any
13 evidence in it, then it shouldn't be a very big exercise to determine that
14 that particular allegation is unfounded.
15 As to boxes which have elements in them --
16 [Trial Chamber confers]
17 JUDGE MAY: Mr. Kay, there would appear to be some attraction in
18 this way of going on. I mean, it's -- it is simply a form of submission
19 put in tabular form as opposed to written or oral.
20 MR. KAY: Yes. I've been talking about it with Mr. Nice
21 throughout the last two weeks or so.
22 What I was proposing was this: It has to be done. A narrative
23 form has to be written to put in argument and express and indicate what
24 the issues are, but what I was thinking of doing, if it was possible given
25 the software, was that this space be made available -- I don't reproduce
1 the whole schedule, but just if there are submissable aspects in relation
2 to the evidence, I indicate it in the boxes and then it's easier for the
3 Trial Chamber and the Prosecutor to locate the issue.
4 I found it a very useful document to work from over the last two
5 months dealing with the Kosovo aspect of the case, and I felt that it
6 might just make it easier for everyone to focus on that particular aspect
7 if the Trial Chamber wished that. I was going to annex it as a schedule.
8 There were going to be other schedules, but this is a common document
9 where -- which might be a useful way of moving around it.
10 [Trial Chamber confers]
11 JUDGE MAY: Yes. Mr. Kay, we think this would be of assistance,
12 putting the arguments in schedule form.
13 MR. KAY: Yes. There will, of course, still be narratives. There
14 has to be. It is not a tick-box situation, it's the end of it, but it is
16 JUDGE MAY: Mr. Nice, anything else?
17 MR. NICE: The only other matter that I have raised in written
18 form is the proposition that some witnesses should be subject to a general
19 scope of examination if chief or re-examination than has been regarded as
20 appropriate by this particular Chamber. The proposition is supported by
21 jurisdictions of one kind or another around the world. It's also
22 supported by practice within this building, and it's a very important
23 point because we are now reaching the position where there are witnesses,
24 two distinct types, who it may be necessary to test rather more
25 extensively than would normally be the case.
1 The Chamber can think, without my using names, of witnesses who
2 have written contemporaneous books and diaries, the factual content of
3 which is likely to be absolutely accurate and which should be before you
4 as part of the library of material upon which you can work, but who, if
5 called in the conventional way, might be so adverse to the Prosecution
6 unless they were properly cross-examined that it would be impossible for
7 us to call them, and you would simply be being deprived of extremely
8 valuable contemporaneous material upon which you could rely.
9 The other type of witness, in our judgement capable of being very
10 valuable to you - we may not have time to call many of them - are those
11 internationals as they're call, but international negotiators, diplomats,
12 whatever you like, who dealt with the parties and have opinions that will
13 give depth or provide you with the ability to give depth to the judgement
14 that you wouldn't otherwise be able to do but whose opinions on some
15 topics may not be opinions that we prosecuting would accept, and we would
16 want to be able to test them in some way.
17 JUDGE ROBINSON: Some of them have written books too.
18 MR. NICE: Some of them have written books too, absolutely right.
19 And then there's of course within that category there's the single witness
20 category at the moment who at his own election would prefer to be
21 cross-examined by all three parties because he doesn't wish to have direct
22 contact with any.
23 And these witnesses for different reasons, in our respectful
24 submission, justify a broader approach.
25 As to the first category of witnesses, those in whom there may be
1 found some adversity or even hostility, we know that in one of your fellow
2 Chamber's -- another Trial Chamber, we know that there is a practice
3 whereby those witnesses are subject to cross-examination by Prosecution
4 counsel pretty well from the word go because it's --
5 JUDGE MAY: So you call the witness and cross-examine them, do,
6 you, under this practice?
7 MR. NICE: Well, examine or cross-examine. But you test the
8 witness generally. And of course that is in line with, for example, what
9 happens at inquiries of one kind or another where a counsel for the
10 inquiry may examine a witness in chief in the conventional way and then
11 test or may test the evidence at the re-examination stage. It's by no
12 means unknown. Indeed, it's very a common practice. It's always
13 interesting to see the degree to which how both Scotland, the merits of
14 whose legal system are trumpeted not just by them but by many others on
15 their behalf, and the United States of America in the federal jurisdiction
16 have practices that allow this broader examination of witnesses without a
17 narrow rule of hostility being found first. And in your truth finding
18 function, because of course you're not here to find a just approving test
19 of a conventional domestic jury trial in your truth finding function, you
20 will, in our respectful submission, be assisted if with some witnesses we
21 are able to examine them in this more general way.
22 JUDGE ROBINSON: If you destroy the credibility of a witness in
23 one area, won't you also destroy his credibility in the other area?
24 MR. NICE: Only if one works on the premise that credibility is
25 single, complete, and so on, which is perhaps --
1 JUDGE ROBINSON: And integrated.
2 MR. NICE: Integrated. It's a very attractive proposition for us
3 to have in mind as we approach our fellow human beings but it's probably
4 unrealistic and we've probably seen many examples in this very case of
5 witnesses whose evidence on one part of what they speak about is likely to
6 be accepted by the Tribunal, whereas it may be manifestly seen to be
7 flawed in other areas.
8 JUDGE ROBINSON: I think you hit the nail on the head when you say
9 that it is used in inquiries, even in the common law system. It is
10 really, I think, classically inquisitorial.
11 MR. NICE: And this is, of course, a system that although based on
12 an adversarial system draws on other systems as it finds it appropriate to
13 do so.
14 JUDGE MAY: Speaking for myself, I would find it easier to rule on
15 this matter on concrete cases rather than a vacuum. It's difficult to
16 make a general point. However, if there are concrete cases and there's
17 one you've drawn to our attention, but if there are others, it may be that
18 we could make a more reasoned approach.
19 MR. NICE: I will bear that in mind and proceed accordingly.
20 Your Honour, I see the time. There is a short matter to be dealt
21 with in private session, but I don't think there's anything else that we
22 need cover in public session. I'm grateful.
23 JUDGE MAY: All right. We'll go into private session.
24 [Private session]
21 --- Whereupon the Pre-Defence Conference
22 adjourned at 4.54 p.m.