Tribunal Criminal Tribunal for the Former Yugoslavia

Page 32071

1 Thursday, 25 March 2004

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 10.02 a.m.

6 JUDGE MERON: Please be seated.

7 Madam Registrar, would you please call the case.

8 THE REGISTRAR: Yes, Your Honour. Good morning, Your Honour.

9 This is case number IT-02-54-T, the Prosecutor versus Slobodan Milosevic.

10 JUDGE MERON: Thank you, Madam Registrar.

11 Can I have the appearances for the Prosecution, please.

12 MS. DEL PONTE: Yes. The Prosecution is represented by the

13 Prosecutor, Carla Del Ponte, and my colleague Geoffrey Nice, principal

14 Senior Trial Attorney. Thank you, Mr. President.

15 JUDGE MERON: Thank you, Madam Prosecutor.

16 Mr. Milosevic, can you hear the proceedings and understand me in a

17 language that you understand?

18 THE ACCUSED: [Interpretation] I can understand you, Mr. Meron.

19 JUDGE MERON: Thank you, Mr. Milosevic. Mr. Milosevic, you are

20 probably aware of the Rules of Procedure, and in particular Rule 15 bis

21 (C), pursuant to which I have convened this hearing. I would now like to

22 explain the situation to you, and you will then be asked to give your view

23 on the issue.

24 On the 12th of March, I have received a report from the Presiding

25 Judge of the Trial Chamber pursuant to Rule 15 bis (C). In that report, I

Page 32072

1 was advised that by reason of Judge May's illness leading to his

2 resignation, he will be unable to continue to hear the case against you.

3 Rule 15 bis (C) provides that where the President is advised that one of

4 the members of the Bench is unable to continue to hear a case before the

5 Bench, he may either order a rehearing of the entire case or a

6 continuation of the proceedings with a substitute Judge. However, after

7 the opening statements provided for in Rule 84 or the beginning of the

8 presentation of evidence pursuant to Rule 85, I am only authorised to

9 order that continuation where I have the consent of the accused.

10 This hearing has been convened for that purpose and for that

11 purpose only.

12 As you should be aware, on behalf of the amici curiae, Mr. Steven

13 Kay filed a document on the 22nd of March advising me that due to

14 professional commitments elsewhere, he would be unable to attend the

15 hearing today. In that filing, Mr. Kay advised me that he did not

16 consider it appropriate for him to express a view as to whether there

17 should be a rehearing or a continuation of the trial with a substitute

18 Judge. He considered that you, Mr. Milosevic, would be able to express

19 your own view on this matter, and not knowing your view, he did not wish

20 to state a conclusive view of his own for fear of damaging your interests.

21 Before I ask you whether you do give your consent to a

22 continuation of the proceedings, I should explain to you that if you

23 refuse to give your consent, then the question, then the issue reverts

24 back to the Trial Chamber under Rule 15 bis (D).

25 Under Rule 15 bis (D), even without your consent, Mr. Milosevic,

Page 32073

1 the Trial Chamber has the authority to continue the proceedings with a

2 substitute Judge appointed by me provided that the Trial Chamber is

3 satisfied that it is in the interests of justice that the trial proceed.

4 If the Trial Chamber makes such an order, I will appoint a substitute

5 Judge as soon as practicable. The substitute Judge will be permitted to

6 assume his or her position on the Bench only after he or she has certified

7 that he or she is familiar with the record of the proceedings.

8 I hope that I have made the situation clear to you, Mr. Milosevic.

9 I have convened this hearing to ascertain whether you consent to a

10 continuation of the proceedings. If you do consent, I can order a

11 continuation with the appointment of a substitute Judge under Rule 15 bis

12 (C). If you withhold your consent, then it will be for the Trial Chamber

13 to decide under Rule 15 bis (D) whether, despite your lack of consent, the

14 interests of justice warrant a continuation of the proceedings with a

15 substitute Judge under Rule 15 bis (D). In either circumstance, any

16 substitute Judge that may be appointed by me will be required to certify

17 that he or she is familiar with the record of the proceedings prior to his

18 or her assuming a position on the Bench.

19 I would now like to ask you a very specific question,

20 Mr. Milosevic, and I would be appreciative if you could answer my question

21 directly.

22 Do you consent to a continuation of the proceeding -- a

23 continuation of the proceedings with a substitute Judge, Mr. Milosevic?

24 THE ACCUSED: Mr. Meron, since I did not have an opportunity of

25 putting forth any kind of request regarding my basic rights when decisions

Page 32074

1 were made on time for preparation, as you call it, and time that is being

2 made available to me, I would like to take this opportunity first and

3 foremost to present such a request.

4 First of all, I ask for a review of the time given to me for

5 preparation, namely the 90-day period assigned to me as opposed to the

6 time that this false Prosecution had; three years' time, as a matter of

7 fact. It is many times less, the time given to me. It should be

8 reviewed, nevertheless, from the point of view of the opinion of

9 physicians, namely that I can work only three days a week. So even if you

10 were to adhere to this meager decision of 90 days, according to the

11 position of your own physicians, it would have to be 30 weeks. I believe

12 that I need much more time anyway.

13 I believe that there is no need for me to expound on this any

14 further.

15 Secondly, I ask you to review and change the decision of granting

16 me 150 days for my half time, which is two times less than the time used

17 by the side opposite. The mathematics were actually based on the fact

18 that the other side used less time because, according to Rules 89(F) and

19 92 bis, they presented a majority of their witnesses on the basis of these

20 two Rules, to the detriment of the public, because giving written

21 statements, and practically without an examination-in-chief, was done in

22 contravention of the principle of the right to a public trial. I want all

23 the witnesses that I'm going to call to testify in public, not by way of

24 written statements. Therefore, I believe that I need far more time than

25 the time calculated on the basis of the time used up by the other side,

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Page 32076

1 which is no doubt to the detriment of the basic principle of having a

2 public trial.

3 I believe that the other side should not benefit from jeopardising

4 the principle of having a public trial, nor should this work to my

5 detriment. My request -- my request, therefore, is for you to re-examine

6 that position as well.

7 Thirdly, I ask you yet again to release me, to set me free,

8 because under these circumstances I'm prevented from exercising the right

9 that you declared, namely, in your words, to defend myself, because I do

10 not have the possibility of freely and without supervision communicating

11 with potential witnesses. The other side called all its witnesses. There

12 is no danger of me affecting them in any way. And also there is no danger

13 of me disappearing somewhere. It is not my objective to disappear. It is

14 my objective to win, to prevail, to show what the truth is, because this

15 false Prosecution already failed during its half time.

16 So my three requests -- so my three requests pertain to the time

17 for preparation from the point of view of its actual duration and the fact

18 that I was given instructions that I could work only three days a week.

19 Secondly, it pertains to the length of my half time; and thirdly, it

20 relates to release. It would also be necessary for you to establish, in

21 accordance with medical opinions of your physicians, when you're going to

22 start counting my time. They probably have to take their own views with

23 regard to this matter on the basis of the information made available to

24 them. I believe that you should look into these requests and decide

25 accordingly.

Page 32077

1 JUDGE MERON: Mr. Milosevic, I can assure you that we are all very

2 concerned about your health, and we are sympathetic to the impact that it

3 has on your ability to prepare your defence, and we will do our very

4 utmost to assist you in any way we can.

5 I have been advised that the Registrar created unprecedented

6 facilities at the Detention Unit to facilitate your preparing your

7 defence. You could have, incidentally, Mr. Milosevic, made things much

8 easier for yourself if you had agreed to be represented by a lawyer.

9 However, you will understand that matters pertaining to the resumption of

10 the proceedings and the time given to you to prepare your defence are

11 within the exclusive competence of the Trial Chamber. They are not within

12 my competence, and they are not within the purpose and object of the

13 hearing which I have convened today.

14 I can assure you that the Trial Chamber will receive a transcript,

15 a full transcript, of today's proceedings, including the comments which

16 you have made this morning, and will be advised of your concerns.

17 You briefly mentioned also the question of communications, and on

18 that it is my understanding, Mr. Milosevic, that you are not subject to

19 any communications restrictions at the moment, so this is not an issue.

20 It is a moot issue. However, I might add that the limitations which had

21 been imposed upon you in the past were imposed in compliance, in full

22 compliance, with the applicable Rules.

23 Having said so, I would like to return and ask you whether I could

24 have your direct answer to the question which I raised earlier and to

25 which you have not yet responded.

Page 32078

1 THE ACCUSED: [Interpretation] Mr. Meron, you know full well, I

2 believe - I hope - that I consider this Tribunal of yours to be illegal

3 because it is not based on the Charter of the United Nations. Of course I

4 have no intention of declaring my views on your administrative issues. As

5 a matter of fact, I consider this so-called Tribunal to be a means of war

6 against my country, which is still going on and --

7 JUDGE MERON: I'm terribly sorry, Mr. Milosevic, but this is

8 really not pertinent to the subject of this hearing and I have to

9 interrupt you. It is -- I am assuming that I should derive the conclusion

10 from your comment that you do not wish to grant a consent to the

11 continuation of the hearings as I cannot understand the comment you have

12 made as amounting to a clear and unequivocal consent to continue the

13 proceedings with a substitute Judge. As a matter of fairness to you, I

14 would interpret your comments as amounting to refusal to consent.

15 I see no reaction from you which would suggest that my

16 interpretation would not be correct and, therefore --

17 THE ACCUSED: [Interpretation] Mr. Meron, your interpretation is

18 not correct from the point of view of the fact that, since I consider your

19 Tribunal to be illegal, I do not wish to declare my views on matters that

20 have to do with administrative solutions to any problem that you may raise

21 here. It has nothing to do with the core of the matter.

22 JUDGE MERON: Thank you, Mr. Milosevic. Then I have no choice but

23 to adhere to my view that you have not granted us equivalent consent to

24 continue the proceedings, and therefore as a matter of fairness to you,

25 let me repeat, I do interpret your comments as amounting to refusal to

Page 32079

1 consent.

2 As you have refused your consent, I have no authority to order a

3 continuation of the proceedings, and I therefore refer the matter back to

4 the Trial Chamber under Rule 15 bis (D). It will therefore be for the

5 Trial Chamber to determine whether the interests of justice warrant a

6 continuation of the proceedings with a substitute Judge without your

7 consent, or whether a rehearing should be ordered.

8 I take it -- does the Prosecutor wish to say something?

9 MS. DEL PONTE: Nothing particularly, Mr. President. I was --

10 just to say that I'm not a false Prosecutor, I am The Prosecutor, first.

11 Second, I want to say that we agree; the accused has withheld his

12 consent and the Prosecution agrees that silence or not responding on his

13 part should be regarded as an absence of consent because, of course,

14 consent is a positive act.

15 Thank you, Mr. President.

16 JUDGE MERON: Thank you. Thank you, Madam Prosecutor. And at

17 this stage I would thank the parties for their appearance and adjourn the

18 hearing.

19 --- Whereupon the Motion Hearing adjourned

20 at 10.22 a.m.