Tribunal Criminal Tribunal for the Former Yugoslavia

Page 32356

1 Thursday, 2 September 2004

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.04 a.m.

5 JUDGE ROBINSON: The Chamber has two rulings to make this morning.

6 The first is on the application of the accused for further medical

7 evidence, and the second is on the assignment of Defence counsel. I now

8 give the Trial Chamber's decision from which I have dissented from the

9 application of the accused for further medical evidence.

10 Without challenging any finding made in the reports of either

11 cardiologist instructed by the Trial Chamber and following the conclusion

12 of the debate on the question whether counsel should be assigned, the

13 accused asked the Chamber for time to obtain an expert from Russia, from

14 Serbia, from Greece because he saw the evidence of the cardiologists,

15 particularly that of Professor Tavernier, as a manipulation aimed at

16 depriving him of his right to speak. The sole reason advanced for

17 concluding that manipulation was involved was the fact that

18 Professor Tavernier is from Belgium which is the seat of NATO. In the

19 opinion of the majority of the Trial Chamber that submission does not

20 provide a basis for considering that it would be contrary to the interests

21 of justice to make a decision on the matter of assigning counsel on the

22 material presently before the Trial Chamber. My own view is the lateness

23 of the application, a procedural deficiency should not prevent the accused

24 from challenging the medical evidence on an issue as substantive, as

25 fundamental as his right to defend himself.

Page 32357

1 That's the decision.

2 This is the ruling on assignment of Defence counsel, and I should

3 say that a fuller written decision will be issued shortly.

4 In its reasons for its decision on the Prosecution motion

5 concerning assignment of Defence counsel of 4 April 2003, the Trial

6 Chamber, while holding that the accused had a right to defend himself also

7 held in paragraph 40 that the right to defend oneself in person is not

8 absolute and that it would keep the position under review, also in

9 paragraph 40. The health of the accused has been a major problem in the

10 progress of the trial. In the Prosecution's case the trial was

11 interrupted over a dozen times on account of the ill health of the

12 accused, thereby losing some 66 trial days.

13 The Defence case that was scheduled to start on 8th June was

14 postponed on five occasions, again on account of the ill health of the

15 accused. The Trial Chamber requested Dr. Van Dijkman, who has been

16 treating the accused for cardiological problems for some time, and

17 Professor Tavernier from Belgium, who was identified by the registrar as a

18 cardiologist with no prior involvement in the treatment of the accused, to

19 examine the accused and consider all relevant information pertaining to

20 his health in the context that he represents himself, and report to the

21 Trial Chamber on the fitness of the accused to continue to represent

22 himself and the likely impact on the trial schedule should he continue to

23 do so. Both doctors reported that the accused suffers from severe

24 essential hypertension and that his condition was such that a hypertensive

25 emergency, a potentially life-threatening condition could develop. They

Page 32358

1 also found that one explanation for his medical condition was his failure

2 to adhere to the proposed therapeutic plan.

3 Blood tests carried out on the accused confirmed this conclusion.

4 It is plain from the medical reports that the accused is not fit enough to

5 defend himself and that should he continue to represent himself, there

6 will be further delays in the progress of the trial.

7 The issue before the Chamber is whether the right of an accused

8 set out in Article 21 of the Statute to defend himself in person is

9 subject to qualification, and if it is, whether in the circumstances of

10 this case that right should be qualified by assigning counsel to represent

11 the accused.

12 The Chamber is satisfied on the basis of the Tribunal's Statute

13 and the jurisprudence, as well as the law of many domestic jurisdictions

14 that the right of an accused person to represent himself is not

15 unfettered, and in the circumstances of this case, it is both competent to

16 assign counsel to the accused and in the interests of justice to do so.

17 We shall, therefore, do so.

18 The fundamental duty of the Trial Chamber is to ensure that the

19 trial is fair and expeditious. The concern of the Chamber is that, based

20 on the medical reports, there is a real danger that this trial might

21 either last for an unreasonably long time or, worse yet, might not be

22 concluded should the accused continue to represent himself without the

23 assistance of counsel. On the other hand, the Chamber is satisfied that

24 if counsel is assigned to the accused, measures can be devised to ensure

25 that the trial continues in a manner that is both fair and expeditious.

Page 32359

1 Having decided to assign counsel to the accused, it will be the

2 duty of the Chamber to ensure that the role of assigned counsel is so

3 fashioned that the trial process, while being expeditious, will protect

4 the fundamental right of the accused to a fair trial.

5 That's the ruling, and as I said before, a fuller written decision

6 will be issued shortly.

7 We now proceed to the second phase, which is submissions from the

8 parties --

9 THE ACCUSED: [Interpretation] Mr. Robinson.

10 JUDGE ROBINSON: Yes, Mr. Milosevic.

11 THE ACCUSED: [Interpretation] Mr. Robinson, I told you yesterday

12 already that I did believe, and I believe now, that the assignment of

13 counsel directly violates my fundamental rights. Please give me answers

14 in relation to that conviction of mine. I would like to present my views,

15 my conviction, very briefly in view of the petition that was handed over

16 to the President to the Security Council on behalf of a hundred lawyers

17 from many countries, from three different continents, and which contains

18 arguments on the basis of which you cannot act in such a way.

19 So I ask you to give me an answer so that I could at least

20 understand your position, how you intend to deprive me of this fundamental

21 right. I'm going to read only a few quotations to you from that document.

22 JUDGE ROBINSON: I'm stopping you, Mr. Milosevic. I will not hear

23 that. The Chamber will not hear that. We have considered this matter.

24 We have gone through that exercise, that debate. If you wish to challenge

25 the Chamber's decision, there are avenues open to you, but the issue will

Page 32360

1 not be redebated now. I will not hear you on that issue at all.

2 We are going to proceed now to the --

3 THE ACCUSED: [Interpretation] Mr. Robinson.

4 JUDGE ROBINSON: I've already told you I am not hearing you on

5 that issue. If you wish to challenge the Chamber's decision there are

6 courses that are open to you to do so. But we will absolutely not return

7 to it here. We will now proceed to the next phase.

8 THE ACCUSED: [Interpretation] Mr. Robinson, in that case I want

9 the Appeals Chamber to consider this decision of yours, which is illegal,

10 which violates international law, which violates every conceivable

11 covenant on human rights. At the moment when I am supposed to

12 use -- exercise my right to defence, you decided to deprive me of that

13 right. I believe that that's a scandal. You cannot deny me the right to

14 defend myself.

15 JUDGE ROBINSON: I'm stopping you. I've heard that you intend to

16 appeal. You can take the necessary measures, and you can have the

17 assistance of the amicus on that matter, but we will proceed with the

18 consideration of the modalities for the assignment of counsel.

19 Mr. Nice, you will be the first speaker.

20 MR. NICE: Modalities for the assignment of counsel in the

21 circumstances summarily outlined by Your Honour, and of course more fully

22 developed in the fuller ruling to which you've referred, have been

23 addressed by us already in our filings. I'll take you briefly to them,

24 having reflected overnight on whether they need any adjustment in light of

25 argument and come to the conclusion that we don't think they do need any

Page 32361

1 or much. Nevertheless, it's probably helpful, given the public nature of

2 this hearing and possibly the public interest in it, that we should

3 explain in summary what our proposals have always been and how indeed they

4 match closely, as I forecast or summarised yesterday, the modalities

5 imposed by one of the domestic common law jurisdictions that does, in

6 certain circumstances, impose counsel.

7 And if the Court would be good enough, if it can find it to go to

8 attachment B of our second extensive -- rather, our first submission of

9 the 26th of July on this topic. The Court will perhaps be reminded that

10 our proposals were, substituting the word "assignment" where appropriate,

11 that the Trial Chamber would have to be actively involved in the

12 management, or might have to be actively involved in the management of a

13 defendant's case, an accused's case in these circumstances; that assigned

14 counsel would have to have full discretion in respect of a defence case,

15 identifying which witnesses to prepare, call, and present, but that

16 assigned counsel should be free and probably should be encouraged to

17 discuss all aspects of preparation, and indeed, presentation of the

18 Defence case with this accused. The assignment, nevertheless, being an

19 assignment of counsel by the Chamber, so that the essential relationship

20 of counsel would be between the counsel and the Chamber.

21 We've suggested from the beginning that it would be highly

22 desirable for one of the amicus to be the assigned counsel and

23 respectfully draw to your attention that the terms upon which the amicus

24 have been engaged, going back to August 2001, have already been varied to

25 meet the changing circumstances of this case, so that whereas their

Page 32362

1 initial appointment, by an order of the 30th of August of 2001, was to act

2 in, amongst other things, in cross-examining witnesses and so on, but

3 amongst those things it was also to act in any other way which designated

4 counsel considers appropriate to secure a fair trial. Thereafter,

5 following an application by the amicus that their role towards the end of

6 the Prosecution's case and into the Defence case should be further

7 clarified, they thereby clearly evincing an intention to continue

8 assisting the Court, an order was made on the 27th of June, that was the

9 order appointing Mr. McCormack, but then there was an order of the 6th of

10 October of 2003, which dealt with various other procedural matters, but

11 said this: That in light of or having regard to the continuing medical

12 condition of the accused and the desirability of the amici curiae giving

13 greater assistance to the accused, the amici curiae were authorised to

14 receive such communications as the accused may make to them and to act in

15 any way to protect and further the interests of his defence.

16 And that was clearly an order which they found one they could

17 comply with, for they have indeed been complying with it as we know from

18 filings subsequently made where they reveal that they have been able to

19 communicate with the accused. Although they have made it absolutely

20 clear, and this is important in light of the potential for their being

21 assigned to the case, they made it clear in their filing of the -- I think

22 the 13th of August of this year that they have at no stage represented the

23 accused nor received instructions from him. Thus they remain sufficiently

24 independent of him to take the appointment, in our submission, that

25 assignment would constitute.

Page 32363

1 I return to our attachment B, again using the term "assigned

2 counsel" as appropriate, and at page 2 suggest that counsel, once

3 assigned, should be instructed by the Chamber to identify witnesses to be

4 called and to arrange that they be called. That can now be, of course,

5 significantly amended because we know that a number of witnesses of the

6 accused's choosing have been the subject of arrangements to bring them

7 here to court starting next Tuesday so that that part of our proposal

8 could be tailored to reflect the further development that has

9 already -- or preparation that has already been made.

10 We made the point at subparagraph B on our page 2, a point I made

11 yesterday that assigned counsel would not be expected or even permitted to

12 conduct a fresh inquiry into the Defence case because it isn't necessary

13 in the circumstances of this case given their involvement to date,

14 everybody's understanding of what the accused intends to advance by way of

15 his case, and the considerable body of material available to various

16 parties in the court but certainly and particularly to the amicus showing

17 what witnesses it is that the accused wishes to call. And indeed the

18 assigned counsel should be ready to take witnesses on the date already

19 identified for the restart of this case.

20 We urge the Court to require of assigned counsel that in their

21 preparation of witnesses they should -- they should turn to the provisions

22 of Rule 89(F) for the presentation of evidence in chief for two distinct

23 reasons. First, Rule 89(F), for those listening who may not be familiar

24 with the Rules, allows evidence in chief to be given in written form. The

25 first reason is this: It will save a considerable quantity of time where

Page 32364

1 time is extremely valuable. But that second rule is that by a Rule 89(F)

2 statement being made ahead of a witness giving evidence to all parties

3 including the accused himself will enable him to review that evidence,

4 ahead of its coming, in order to identify what in his judgement may, if

5 anything, have been omitted from what he would wish to be given to the

6 Court, and I'll come to the significance of that later. But having the

7 evidence in written form would be particularly valuable for that second

8 reason.

9 Steps would have to be taken to ensure that the accused no longer

10 spends time that his medical condition indicates he should not be allowed

11 to spend in contact with or preparation of witnesses. And that covers the

12 early parts -- or the recommendations that we make for the early parts of

13 the work of the assigned counsel.

14 I turn then to what in our respectful submission could happen, a

15 matter entirely for the Chamber today but sequentially really to come

16 immediately after assignment of counsel; namely, the accused should be

17 reminded, or could be reminded, of his right to representation by counsel

18 of his own choosing, and he should be advised or could be advised of the

19 limitations on his own ability to prepare witnesses, and encouraged to

20 make use of counsel of his own choosing in all aspects of preparation and

21 presentation of his case.

22 In our submission, were he to make that sensible decision, his own

23 associates are those who it would be reasonable for him to appoint, I

24 think rather as His Honour Judge Kwon suggested yesterday. And we know

25 from the published newspaper article that they are, in any event, already

Page 32365

1 almost fully in the position of Defence counsel, as one of them said,

2 being only marginally distinct in the nature of the work they do from

3 Defence counsel.

4 Were the accused to take the sensible step, were he to be reminded

5 of the wisdom of doing so, of appointing his own counsel, then he would be

6 in the position to conduct through those counsel or that counsel his own

7 defence, calling the witnesses he wishes to call in the order he wishes to

8 call them starting next Tuesday. And the role of assigned counsel would

9 perhaps become closer, then, to the role of stand-by counsel, a term used

10 in one of the other cases where this problem has arisen in this Tribunal.

11 In the circumstances of the accused electing to appoint counsel

12 and to appoint one of his associates as counsel, then of course there

13 would be, probably, no role for assigned counsel in questioning witnesses

14 so that the accused, through his counsel, could have full control of that.

15 However, if the Chamber so decided, and I now revert to the

16 alternative -- or to considering the alternatives, either the assigned

17 counsel running the case or the accused's own counsel running the case.

18 In either of those circumstances, if the Court so decided, the accused

19 could be permitted, at the end of examination-in-chief or at the stage of

20 presentation of the 89(F) statement, Rule 89(F) statement, he could be

21 permitted to identify topics that he believes have not been covered and in

22 respect of which he would like personally to ask some but perhaps a

23 limited number of questions. Similar considerations could arise at the

24 stage of re-examination where with the Court's leave he might ask some

25 questions himself. And it is with that possible procedural practice in

Page 32366

1 mind that I emphasise again the real value to this process of

2 examination-in-chief being dealt with pursuant to the Rules, the

3 Rule 89(F), giving, as it were, advance notice to the accused of precisely

4 what the scope of evidence in chief would be.

5 If -- that, I think, is essentially the proposal we make with just

6 this additional rider: If the Chamber reminds the accused of his right to

7 appoint his own counsel, or indeed encourages him to do so and he declines

8 but his associates remain available to him and present at court, then it

9 will be possible for him to reconsider his position at a later stage in

10 the trial. The Chamber may even wish to invite him at some stage to

11 consider doing that. But if the accused declines all invitations to

12 appoint his own counsel so that the conduct of the case is in the hands of

13 assigned counsel, then the Chamber may wish to do a number of

14 things - I've set out what we think is a reasonably exhaustive things but

15 I'm probably missed some - a number of things to ensure that his position

16 is considered at various stages.

17 Here are some examples: If assigned counsel is running the case,

18 he or she would no doubt wish to identify the witnesses to be called.

19 We've got pretty well in the defendant's and the accused's own list the

20 first 50 witnesses, but at a later stage or some stage through the Defence

21 case the next series of witnesses might need to be identified. That's an

22 exercise that assigned counsel could do, announcing his conclusions to the

23 Chamber, at which stage the Chamber could invite the accused to contribute

24 by saying whether he approved, disapproved, agreed, disagreed with the

25 list of witnesses. That could be done in Court. It could be done in

Page 32367

1 writing. So far as the Prosecution are concerned, it could be done

2 absolutely ex parte. In that way, he can be invited to contribute to the

3 maximum extent possible in the identification of the witnesses to be

4 called. And we suggested in our original filing that this type of

5 exercise, and there are probably others of a like kind which would allow

6 the accused to be involved, would all be the subject of recording at the

7 Chamber's direction so that a full record of the degree to which the

8 accused was invited to participate and did participate or declined to

9 participate could be made and the --

10 JUDGE ROBINSON: Mr. Nice, in the event that the accused disagreed

11 with the list of witnesses, what do you foresee as happening?

12 MR. NICE: I foresee that in light of -- in line with the

13 authorities we've laid before you and in line with the need for the

14 assigned counsel to fulfil the duty imposed on him, his decision would

15 have to be the final decision. But of course he - he or she - would, no

16 doubt, wish to take into consideration representations made by the

17 accused, and it could be a matter of reasoned decision by him recorded in

18 such way as the Chamber may determine that the witnesses called are as he

19 or she eventually decides.

20 And as I said earlier and repeat, this can all be done ex parte.

21 It doesn't have to be done in the presence of the Prosecution. And

22 certainly it doesn't have to be done in public. But I think ultimately

23 the assigned counsel on the authorities and given the problems that we've

24 faced has to have the right.

25 But of course that reality has to be set beside the reality that

Page 32368

1 the accused can, starting now, or it may be at a later stage, elect to

2 proceed to his own appointed counsel and be completely in charge of the

3 witness list. So what we are proposing at all stages guarantees him

4 maximum involvement and retains for him the maximum rights that he has to

5 present his own case through his own counsel.

6 Can I take Your Honours very briefly to two passages of our second

7 filing of the 19th of August of 2004, where we respectfully suggest that

8 the Chamber will find support for our detailed proposals in the practices

9 pursued now in Scotland in respect of that category of offences where

10 counsel can be imposed on an otherwise unwilling defendant.

11 JUDGE BONOMY: It has to be observed, Mr. Nice, that, that

12 procedure has never been applied and is very much a matter of theory at

13 the moment, and indeed not only theoretical but controversial.

14 MR. NICE: Your Honour, we have made inquiries through the

15 Scottish authorities, and have so far - although yes, it's a matter of

16 controversy - have not yet found, I think, identified problems at the

17 decided level, but I'll dig out my report that I've received and check

18 whether that needs any further comment.

19 But, Your Honour, the proposals in any event, if I can take you to

20 paragraph 57 of the sexual offences -- paragraph 57 of our second filing.

21 The Sexual Offences Procedure and Evidence Scotland Act we respectfully

22 suggest implements the very position that we propose in encouraging the

23 accused to assign his own counsel. Should he fail to do so, appointing, I

24 think is the word used in Scotland, counsel to represent the accused

25 should he refuse to assign a representative himself.

Page 32369












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Page 32370

1 The provisions go on to make it impossible for the accused or

2 defendant in Scotland to dismiss the appointed representative and require

3 of the appointed representative that he or she should attempt to obtain

4 instructions from the accused but that if he or she cannot obtain such

5 instructions or if such instructions are perverse or inadequate that he

6 should act in the best interest of the accused.

7 At the same filing, if Your Honours would be good enough to come

8 back to page 14 and paragraph 36, the same Scottish provisions propose

9 that there be a system for recording advice received and decisions made

10 by -- should -- and decisions made under the supervision of the Chamber

11 and that where inadequacy in the defence is a consequence of the

12 accused's -- I beg your pardon. That's what's proposed. Our argument is

13 that where inadequacy in the defence is a consequence of the accused's

14 lack of preparation, while unfortunate, it doesn't undermine the trial or

15 create a significant ground of appeal.

16 I'm just looking at something if Your Honours would give me one

17 minute.

18 Responsive to His Honour Judge Bonomy's observation and subject to

19 further correction, I understand that the desirability of a code was

20 recognised but that no statutory code has yet been created. I may be

21 wrong in that, but I understand and I am informed that that is the

22 position and that the Law Society has been invited to amend the existing

23 code to fit in perhaps with recommendations, but Your Honour, I take it no

24 further than that at the moment.

25 Your Honours, those are our observations and although they do not

Page 32371

1 significantly change the recommendations we made or submissions we made

2 earlier, I think it helpful to set them out in public so that it can be

3 understood and never misrepresented that the object of -- that our

4 submission was directed to a timely and fair trial with the accused being

5 given at every opportunity, first, the chance of appointing counsel so

6 that he can sensibly, through counsel, conduct every aspect of the case,

7 subject of course to counsel's necessary discretion, but that B, if he

8 declines to take that course, he can nevertheless be involved in the

9 conduct of the Defence case to a very significant level and that it will

10 be obdurate and negative of him to resist one or other of the approaches

11 proposed that are designed to assist him and to do nothing else.

12 Can I help further at this stage? I do have one or two other

13 things to make but I --

14 JUDGE BONOMY: Mr. Nice, in your submission yesterday, you were

15 critical of the proposal of the amici as to how assigned counsel might

16 work. Now, can you clarify that submission for me, please? I didn't

17 follow it at the time, and I would be grateful if you could show me where

18 in the submission made by the amici they part company with, broadly, the

19 suggestion that you're making.

20 MR. NICE: My concern about the amici's submission was

21 that -- amici's submission was that as I understand it, and I'll be

22 corrected if I'm wrong in this understanding, they would have, in

23 assisting the accused, found themselves at a level of proximity to him

24 that would have made them effectively his counsel rather than assigned by

25 the Court, and as his counsel they would then be exposed to disruption if

Page 32372

1 by their judgement being at conflict with the accused's or by some conduct

2 of the accused they found themselves professionally embarrassed and not

3 able to continue, and it's that and that alone that was our concern.

4 It's --

5 JUDGE BONOMY: One of the Scottish provisions is that any counsel

6 appointed in this way should be required to act in the best interests of

7 the accused. Do you have difficulty with that?

8 MR. NICE: I suppose it's a matter -- it's always a matter of what

9 you mean by "in the best interests of the accused."

10 JUDGE BONOMY: It is notable that English legislation is

11 different, and I understand there may be reasons of practice for that, but

12 one would have to set, would one not, a test for or a standard for the

13 conduct of the case by whichever counsel is appointed, and I'm anxious to

14 know what difficulty you see about that standard. And secondly, if that

15 were the standard, would it not in fact require the sort of attempt at

16 cooperation that is outlined in the submission made by Mr. Kay?

17 MR. NICE: We've already, I think, submitted that there should be

18 attempts at communication between assigned counsel and the accused and

19 that they should not only happen at the beginning but they should happen

20 continuously. It will then, of course, be for the accused to decide

21 whether those communications are possible or not.

22 Assuming that they are, I suspect an issue could arise as to what

23 is in the best interests of the accused between the accused and assigned

24 counsel. And let us be blunt about it. Our arguments have often included

25 the suggestion they did yesterday, that the accused has an agenda that is

Page 32373

1 non-forensic, that is publicity driven, and that addresses an audience

2 other than Your Honours. Counsel assigned by the Court, seeking to act in

3 the best interests of the accused would almost certainly respond to the

4 interests of the accused in this Court, which would be to meet, and so far

5 as is possible, to call evidence to defeat the legal case brought against

6 him. On that divide, we would have absolutely no hesitation in saying

7 that counsel's judgement should be the one that would be appropriate and

8 that the definition of best interests of the accused, to come back to

9 Your Honour's direct question, should be the best interests of the accused

10 in court and in these proceedings.

11 Now, that's only the first and most obvious way in which there

12 could be a conflict of approach, and I avoid the phrase "conflict of

13 interest" for obvious reasons, conflict of approach between assigned

14 counsel and the accused, because of course, even if both counsel and an

15 accused are looking at a problem from the correct forensic point of view,

16 judgements may differ as to which witness should be called. At the moment

17 this doesn't appear to be the sort of case, moving now for an example to

18 the domestic setting, where there could be a real radical make-or-break

19 decision about running an alibi or not running an alibi or calling the

20 wife or not calling the wife in a domestic case, something of that sort.

21 It doesn't appear at this stage to be obvious difficulties of that kind

22 arising, but at that stage, if there were proper forensic disagreements or

23 differences of view, then the test would still be the same test, what is

24 judged to be in the best interests of the accused from the point of view

25 of this trial and its outcome, and on the authorities it would be

Page 32374

1 counsel's opinion and view that would have to rule. But of course it

2 would rule on the proposals we've made with a full record being available,

3 providing the accused is prepared to cooperate, of the way in way views

4 diverged, and that record would always be available for consideration at

5 two stages, and I'll come to this because I haven't mentioned this before.


7 The second of the two stages is the obvious one, on appeal. But

8 it does occur to me that there is perhaps a step that the Chamber might

9 wish to have in mind as a step to assist the accused in the particular

10 circumstances of assigned counsel envisaged here, and that step would be a

11 step coming towards the end of the accused's case when, if there had been

12 intervening steps where disagreements or differences of view between

13 assigned counsel and the accused had been identified and recorded, where

14 the Chamber itself could review the overall differences of view to decide

15 whether, given its own potential to call witnesses and to be active in the

16 running of the case, it could, while not overriding Defence counsel's

17 view -- assigned counsel's view, make its own decision as to what

18 additional witnesses it might call.

19 So for example, to come to the particular, if in the conduct of

20 the case it became obvious that assigned counsel was excluding altogether

21 some category of evidence that the accused wanted included, then at the

22 end of the case, on a general review, the Chamber might say to itself,

23 "Well, we recognise that there's this difference, and while in no way

24 challenging the approach of the assigned counsel, we nevertheless take the

25 view that some evidence of this category could or should be before us."

Page 32375

1 JUDGE ROBINSON: Would there be a substantial difference if the

2 instruction to assign counsel was to act not just in the best interests of

3 the accused but in the best interests of the accused and the

4 administration of justice?

5 MR. NICE: It was probably my oversight for not thinking of that

6 earlier, especially in light of the way the Prosecutor outlined the reason

7 for assigned counsel in civil law jurisdictions.

8 The second -- the formulation of Your Honours that there should be

9 a twin purpose of -- or twin purpose in the terms of the assignment of

10 counsel is to some degree a reflection of what counsel does in any event,

11 because although, of course, counsel has a duty to represent the interests

12 of his or her client, and although that duty can be extremely combative

13 and defensive in an adversarial system, there is nevertheless a duty to

14 serve the interests of justice which primarily takes effect in the form of

15 obeying the rules and ensuring that there is never any corruption,

16 accidental or intentional, of the rules but could in this Tribunal

17 arguably be interpreted a little more widely given the established duty

18 here, not just to resolve a combat but to inquire into the truth.

19 However, I think it would, if I may say so, be fairly difficult

20 for assigned counsel to be reflecting such an instruction by calling

21 evidence that was not actively, not positively, in the interests of the

22 accused as he judged it, because the interests of justice or the interests

23 of the administration of justice might involve calling evidence that was

24 not strictly favourable to an accused, and I think assigned counsel would

25 find that a very difficult course to take. Nor might it be necessary to

Page 32376

1 trouble assigned counsel with such a duty given the specific scope that

2 there is for the Court to identify its own witnesses to be called.

3 Now, I don't know that I've answered that very tidily. Let me try

4 and tidy it up, going back to my original proposition.

5 If the -- for example, if it was identified as a difference

6 between counsel and the accused that a whole category of evidence had been

7 eliminated from consideration by counsel but the Chamber regarded it as

8 perhaps in the interest of the due administration of justice that

9 something from that evidence could be properly before it, why then,

10 without - embarrassing is the wrong word - without making life more

11 difficult for assigned counsel the Chamber could call the evidence itself,

12 and thus meet the second limb, meet itself the second limb of the proposed

13 instruction.

14 JUDGE ROBINSON: But as you say, a counsel in any event will have

15 that in mind as an officer of the court.

16 MR. NICE: As an officer of the court but there is a limit as to

17 how far that duty can take somebody whose primary instruction will be, of

18 course, the interests of the accused.


20 MR. NICE: I have a couple of matters of detail that I would want

21 to raise at some stage. I know at the moment you're just looking at the

22 modalities. I also know that people jumping up and having two bites of

23 the cherry could be inconvenient. Would you like me to deal with them now

24 or later?

25 JUDGE ROBINSON: Are they related to this issue?

Page 32377

1 MR. NICE: One in a sense does, and perhaps I better turn to that

2 one and leave the others for later. Or two do.


4 MR. NICE: The second of the two is there is already outstanding

5 an order from the Chamber in respect of whether the accused should give

6 evidence himself, which of course would have to be under the solemn

7 declaration, when and how long it would be likely to take. Obviously

8 that's something that has to be dealt with. But the first and more

9 substantive issue I'm concerned about on behalf of the Prosecution is the

10 rationing of time, if I can put a short title to the topic, by which I

11 refer to the rationing of time as between the indictments and, I suppose,

12 also the order in which evidence should be called for the indictments.

13 One of the clear duties falling on assigned counsel, whether he or

14 she is able to be in discussion and negotiation with the accused or not,

15 and the same consideration, let me say, would apply if the accused does

16 decide to appoint his own counsel, would be to decide how much time to

17 devote to Croatia, how much to Bosnia, how much to Kosovo and the order in

18 which to call the evidence on those topics.

19 In our filings we reminded the Court of the difficulty that was

20 encountered, time and again, with the accused's cross-examination when he

21 would use time, in our respectful judgement, badly, confining to the end

22 the time when he would raise relevant issues thus forcing an extension of

23 his time.

24 In this case where the Court has made it clear that there is only

25 150 days available for the Defence case, subject of course to other

Page 32378

1 considerations at a later stage, but basically 150 days, it would be very

2 important that assigned counsel recognises the need to present evidence on

3 all three indictments.

4 JUDGE ROBINSON: You say only 150 days, Mr. Nice. It's as much as

5 the Prosecution had.

6 MR. NICE: Yes. I'm looking at it from the point of view of

7 assigned counsel. That's the limit that's on him, but you're right of

8 course to correct me on that approach.

9 So rationing is very important and has to be addressed right from

10 the beginning. As the Court knows, we would have -- we still would press

11 the Chamber to require evidence to be taken in the chronological

12 reason -- order, Croatia, Bosnia, Kosovo, for various reasons set out in

13 our filings which I needn't repeat here. They are, as it happens, public

14 documents.

15 I can see from the accused's list of witnesses that some

16 preparations have already been made to take Kosovo evidence earlier than

17 other evidence. It would be a matter for the Chamber, possibly in

18 discussion with assigned counsel, once assigned, whether that order of

19 calling evidence should be maintained or should be changed.

20 There is --

21 JUDGE ROBINSON: You're asking that it be taken in the order

22 Croatia, Bosnia, Kosovo.

23 MR. NICE: Yes.

24 JUDGE ROBINSON: I think the Chamber had earlier required that the

25 evidence be taken chronologically but left it to the accused to determine

Page 32379

1 the order.

2 MR. NICE: I think -- I think that the Court's order was that the

3 evidence should be presented in an orderly way, indictment by indictment,

4 without actually specifying that it should be chronological. Since the

5 filings are public it's probably as well not to be obscure.

6 The reasons for taking it chronologically include the possibility,

7 given the state of the accused's health that the case may stop at an early

8 stage and it's better in those circumstances if the history is developed

9 chronologically for evidential and forensic reasons but also and quite

10 bluntly because the heart of the case may be thought to be the Bosnian

11 case and it's certainly the one where the most serious allegations made

12 against this accused, and for all sorts of reasons such as the ones I've

13 just identified it would be infinitely preferable that the material is

14 taken chronologically.

15 Although preparations have been made to take the Kosovo evidence

16 early, the first witnesses are very --

17 [Trial Chamber confers]

18 JUDGE KWON: Of course it is for the Trial Chamber to decide

19 later, but we left it to -- up to the accused.

20 MR. NICE: I think you did.

21 JUDGE KWON: Yes. In terms of indictment, Kosovo one proceeded

22 before the other two, and the Prosecution started the Prosecution's case

23 from Kosovo. I think speaking for myself, it's up to the Defence.

24 MR. NICE: As Your Honour pleases, but the Kosovo indictment was

25 taken first for various procedural and accidental reasons.

Page 32380

1 JUDGE KWON: And if I can make this general observation, because

2 Prosecution's submission departed a bit from the point where we started.

3 The only single reason of discussion of assigning a counsel is because of

4 the medical condition of the accused not because of his non-forensic or

5 non-cooperative attitude toward these proceedings. So we should bear that

6 in mind always.

7 MR. NICE: Your Honour, of course, but the modalities, to use the

8 Court's term, by which that imposition should take effect will reflect the

9 fact that the counsel will be bringing a professional judgement to bear,

10 and must bring a professional judgement to bear upon the issues at hand,

11 and that professional judgement will inevitably require counsel to make

12 his or her own decision about what is relevant and what is other than

13 relevant in this case, and that's why I've raised some of the issues I

14 have.

15 But, Your Honour, I'll -- rationing of time is the headline, and

16 if the other points don't find favour then I won't press them any further,

17 but rationing of time as between the indictments is very important.

18 Unless I can help further on that, the other point I will come

19 back to later.

20 JUDGE ROBINSON: Thank you Mr. Nice.

21 Mr. Kay.

22 MR. KAY: In view of the Trial Chamber's indication last night of

23 consideration of the modalities, I've drafted a document overnight to try,

24 in some way, put a shape on what might have been the order. If I could

25 just hand that in to the Court now. And it might be a useful --

Page 32381

1 There are always improvements that can be made on drafts and the

2 first point I urge before the Trial Chamber is really dealing with it in

3 the reverse of the Prosecutor's order, and that is that the accused be

4 granted seven days in which to nominate counsel or counsels to be assigned

5 to him by the registry.

6 I've included a handwritten sentence here that: "Thereafter the

7 accused may nominate additional counsel if he so chooses for his

8 representation," as it may be an important issue that change be necessary

9 or someone that the accused chooses is not available until a later date

10 and so someone commences working with him. It's just to enable that

11 option.

12 Before I go any further, I've had in mind when I've drafted this,

13 something that I'm bound by, which is the Code of Conduct for counsel, and

14 that deals, perhaps, with a number of the issues that have been raised by

15 the Trial Chamber. For instance, in Article 10 there are provisions

16 concerning competence, integrity, and independence. "In the course of

17 providing representation, counsel shall act with competence, skill, care,

18 honesty and loyalty, exercise independent professional judgement, render

19 open and honest advice, never be influenced in the matter of his

20 representation, preserve their own integrity and that of the legal

21 profession as a whole, never permit independence, integrity and standards

22 to be compromised by external pressures."

23 In relation to best interests, Article 11 cites that "counsel

24 shall represent a client diligently and promptly in order to protect

25 client's best interests." There are provisions of communication,

Page 32382

1 confidentiality, and then Article 14 dealing with a conflict of interest

2 which may be the administration of justice best interest issue we were

3 dealing, "Counsel owes a duty of loyalty to a client but counsel always

4 has a duty to the Tribunal to act with independence in the interests of

5 justice and shall put those interests before his own interests or those of

6 any other person, organisation, or state."

7 Any counsel appearing as Defence counsel, and that includes amici

8 curiae, are bound by the Code of Conduct. There may be, in relation to

9 this particular situation that we would be faced by the Court, that the

10 Court may want to add in specific terms, but it's worth bearing in mind

11 that there is a Code of Conduct that applies.

12 JUDGE BONOMY: An obvious example, Mr. Kay is a conflict of

13 interest, I think, because plainly there could be a conflict of interest

14 outlined by Mr. Nice, and you would have to somehow or other be protected

15 from any complaint that might be made in view of the role you've been

16 assigned rather than appointed by the client.

17 MR. KAY: Yes. The witnesses issue: A lot of Defence counsel

18 have witnesses presented to them by clients that they wouldn't call or

19 wouldn't choose to call. Part of the skill and the art is often making

20 that fit into the case. This is a balance and exercise of judgement about

21 which there has to be discretion.

22 [Trial Chamber confers]

23 MR. KAY: It's a matter of discretion and often judgement which

24 has to be exercised.

25 In paragraph 2 --

Page 32383












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Page 32384

1 JUDGE BONOMY: Before you go on to that can I just ask one other

2 question on the general position of counsel so assigned. Do you consider

3 it's necessary to define the obligation any further than is actually set

4 out already in the code which you've already drawn attention to and that

5 is to act in the interests of the accused or the client? There was

6 reference to the general interests of justice, but it might be thought

7 that general interests of justice are in fact best served by acting in the

8 best interests of the accused.

9 MR. KAY: Absolutely. That's why I've -- we've dug up the Code of

10 Conduct. And when drafting this last night I wasn't thinking outside any

11 other dimension than the Code of Conduct that we're all bound by. Indeed

12 the associates of the accused are bound by the Code of Conduct. Anyone

13 acting in one of the cases here is subject to the Code of Conduct, and we

14 all very much bear that in mind, which is why in paragraph 2 I've just

15 put: "The accused's nominated counsel to have the obligation and power to

16 represent him as counsel in the proceedings." And as counsel that is

17 predicated by the fact that you are bound by the Code of Conduct.

18 In paragraph 3, because of the hybrid nature which the

19 Trial Chamber obviously had very much in mind in considering this issue

20 and the accused's right of self-representation, I suggest that the accused

21 be permitted to continue to represent himself in the conduct of his trial

22 by, inter alia, questioning witnesses, presenting evidence, and making

23 submissions to the Trial Chamber in conjunction with his assigned counsel.

24 And what I would have in mind there, and it may be that there could be

25 improved upon, is that he would go first and, rather like the amici have

Page 32385

1 done so far, if they felt that there was a need to supplement submissions

2 or draw further details to the attention of the Trial Chamber working on

3 the arguments of the accused and making points on his behalf, to do so as

4 a way of supplementing the litigant in person in his representations,

5 which is why the word "conjunction" has been put in there. And it's not

6 in any way intended to make the assigned counsel, so to speak, go first

7 before the accused. That would be a matter of choice between him and

8 whomsoever he nominated in the structuring of his defence.

9 However, in 4 I have to deal with the further situation that in

10 the event of the failure of the accused to nominate counsel on his own

11 behalf, the Registrar of the Tribunal will assign counsel to represent the

12 accused, who in circumstances and conditions in which the accused is

13 unable or unwilling to take part in the proceedings, will conduct the case

14 on his behalf. This is further elaborated upon. "In the event of the

15 failure of the accused or any persons acting on his behalf," and by that I

16 mean those working with him currently in his defence, "cooperating with

17 assigned counsel in the production and calling of witnesses identified by

18 the accused as potential witnesses in his case, assigned counsel may call

19 those witnesses or any other witnesses deemed by him to be relevant in the

20 case."

21 And the first working place here should be the accused's witness

22 list, and that's what should be sought to be brought before this Court. I

23 rather resile against some of the indications from the Prosecutor that

24 counsel may call entirely his own witness list. That, in my submission,

25 would not be in the interests of justice, and one must bear in mind whose

Page 32386

1 case this is. It is the defendant's case, and whatever beliefs or

2 knowledges whoever is assigned counsel may have, it's not his case in

3 terms of being the defendant, and that's what should be worked upon

4 foremost, and I would see it very much in terms of trying to deal, whoever

5 has this role, in a consensual way with the accused, on his list, which is

6 why that paragraph is within.

7 Paragraph 6, in the event of witnesses identified by the accused

8 to be called in his case not cooperating with assigned counsel, that

9 counsel may seek orders from the Trial Chamber to compel their attendance

10 and/or cooperation if deemed necessary. And there has to be an element of

11 discretion within a list of 1.600-odd names.

12 7, assigned counsel has the duty to prepare for the calling of

13 witnesses and the conduct of the Defence case in the event of the

14 non-cooperation with him of the accused or persons acting on his behalf to

15 enable the trial of the accused to continue. And that's been included

16 very much as a result of the Trial Chamber's rulings that expedition is

17 one of the reasons why they have taken the course they have today.

18 And the Registry will provide appropriate funding for assigned

19 counsel and supporting members of the team to enable them to carry out

20 their duties. And that would also include, if it was wanted or needed,

21 counsel chosen by the accused to help him in relation to resources.

22 So this -- this model works very much on the basis for

23 implementation that it is the accused who should have the first choice,

24 counsel nominated by him would be bound by the Code of Conduct in any

25 other way that counsel appears before the Trial Chamber, and the order

Page 32387

1 would enable him to function in conjunction with the accused. Assigned

2 counsel that has not been nominated by the defendant to be very much a

3 last resort and then attempting to work within parameters of cooperation.

4 As to whoever takes up that function, the Prosecutor has suggested

5 the amici, Madam Carla Del Ponte suggested yesterday that the associates

6 would be his choice or there could be other counsel appointed. It very

7 much depends on what arrangements the Registry would make, and this matter

8 has to be considered very carefully.

9 On behalf of the amici, we have been in this case now for three

10 years, and it depends very much on what could be arranged with the

11 Registry if we were it take up that position. It's a change of role from

12 the amici. It's a completely different appointment, and it shouldn't just

13 be assumed by the Prosecution that that would be something that we should

14 have to take up. That is not the case, and in fact at various stages

15 throughout the trial the amici were having their role altered. They were

16 being reduced in their attendance and need, at times increased, and we'd

17 reached a stage at the Prosecution case where it was very much felt that

18 we had given quite a bit of service to that extent. So it depends very

19 much if we were the last resort option what was dealt with by the

20 Registry.

21 In terms of how such counsel would operate, they would obviously

22 need to provide a strategy document to the Registry and set out their

23 terms as to how they would see dealing with witnesses and preparation of

24 the case, but that is not really a need for the Trial Chamber at this

25 stage to consider that kind of modality. We've considered it on the

Page 32388

1 general implementation and option so that each stage can be gone through

2 in a way that adequately safeguards the interests of the accused as he

3 sees it at the first stage.

4 [Trial Chamber confers]

5 JUDGE KWON: Mr. Kay, thank you very much for what you have said.

6 Can I ask this, it's a general question: The Chamber decided, as was

7 announced, to assign a counsel, but there may be some ways, various ways

8 of assigning a counsel. There might be a way, rather than by assigning a

9 counsel, by expanding the role of the amici curiae. It may not

10 necessarily be you, Mr. Kay.

11 The amici has been -- the amici have been playing a role that is

12 similar to that of a Defence counsel already, so it may be a matter of

13 nomenclature, but if the -- if the Chamber redefined and expands the role

14 of the amici curiae to include to represent actively for the defendant,

15 what would you say to this?

16 MR. KAY: It -- I would, first of all, urge that we should go to

17 stage one where the accused is able to appoint a representative first and

18 foremost. If we have to go beyond that stage --

19 JUDGE KWON: That's the option which is open at any time to the

20 accused.

21 MR. KAY: Yes. I think if it's formally done within this

22 procedure now, it rather suits more the very careful consideration the

23 Trial Chamber has been giving to this issue and the accused's rights and

24 how we've been, so to speak, at the position we now find ourselves.

25 If the option was that the amici's role was expanded into that

Page 32389

1 kind of function, it -- it would be a way of using the nomenclature of

2 amici in a way that continues with assistance to the accused. So

3 expansion of the role of the amici, whilst very different in terms as to

4 that which we have been doing before, because it would be actively

5 presenting his case if he was unable to attend court and those

6 circumstances and conditions were then deemed appropriate by the

7 Trial Chamber for the case to continue, it, however, requires a

8 considerable re-think of the amici role in terms of resources,

9 organisation, because if, so to speak, there was to be a parallel

10 preparation to deal with all eventualities, the amici would have to be

11 conducting that as a -- as a way of ensuring the proceedings continued.

12 Part of the object of this at the moment, as I understand it, is

13 in fact to help the accused and relieve the burden on him. As I said

14 yesterday, in all big issues of litigation, the senior litigators delegate

15 as we can see on the Prosecution benches and here. You simply can't

16 interview every witness and deal with every document and call every

17 witness and make every submission and research every point. You really do

18 need assistance around you because the scale of -- it doesn't get any

19 bigger than this. I think everyone will acknowledge that. It's really to

20 help the accused to be able to continue his task of representation, and

21 that's very much our feelings on the matter.

22 JUDGE BONOMY: In the situation you're in at the moment as amici,

23 how do you read the code as applying to you? I mean, the code's very much

24 tied up with having a client.

25 MR. KAY: Yes. As amici, it's the sentiment of the codes and

Page 32390

1 those parts that do apply to you. You've also got your own bar's code of

2 conduct as well which -- and it's intended that the two codes really work

3 side by side, and you're working under the terms of an order of the Court

4 as well, which is the priority source of your function. We always look

5 first to that, in fact, for whatever we do, which is why when we introduce

6 our pleadings we say where we're coming from in terms of our order so that

7 it's justifiable.

8 JUDGE KWON: Thank you.

9 MR. KAY: Thank you.

10 JUDGE ROBINSON: Mr. Milosevic, your submissions on this matter.

11 THE ACCUSED: [Interpretation] Mr. Robinson, a fundamental minimum

12 of the rights that the accused has according to the Rome Statute and

13 accord to your Statute is the right to defend himself. During these two

14 full years, many manipulations and lies have been stated. Now when it is

15 the turn of the truth to be told, you are denying me that right.

16 JUDGE ROBINSON: I've cut you off, Mr. Milosevic. I will not hear

17 you at all on the question of assignment that has been discussed. You

18 have indicated that you intend to take a particular -- a particular

19 approach to it. That's entirely your right. We are now dealing with the

20 modalities for assignment and that is what you should address. If you

21 have no submissions on the issue, then so be it. Turn your mind to the

22 question of modalities. That is what we will hear you on.

23 THE ACCUSED: [Interpretation] Then go ahead, deal with it.

24 JUDGE ROBINSON: I take it, then, that you have no submissions to

25 make, Mr. Milosevic, on this issue.

Page 32391

1 [Trial Chamber confers]

2 JUDGE ROBINSON: It's time for the adjournment, and we'll take a

3 break of half an hour. We will return at 11.00.

4 --- Recess taken at 10.24 a.m.

5 --- On resuming at 11.35 a.m.

6 JUDGE ROBINSON: I will now set out the Chamber's decision on the

7 first phase of the question of assignment of counsel.

8 Pursuant to the Chamber's decision to assign counsel, the

9 Registrar is instructed to appoint counsel for the accused. The Registrar

10 should endeavour in the first instance to secure the appointment of

11 Mr. Kay and Ms. Higgins, and the Registrar should make arrangements for

12 appropriate funding for assigned and supporting members of the team to

13 enable them to carry out their duties. Professor McCormack will remain as

14 amicus for international law issues.

15 It follows that we have not accepted the submission that we should

16 allow the accused seven days in which to nominate counsel to be assigned

17 to him by the registry. We have taken that course because the accused

18 made it plain yesterday, in spite of encouragement from Judge Kwon to

19 appoint counsel such as his current associates, that he would not consider

20 doing so.

21 It is, however, open to the accused to invite the Trial Chamber to

22 consider at any later stage a reasonable request to be permitted to

23 instruct his own counsel.

24 The Registrar is to report to the Trial Chamber by 1.00 p.m.

25 tomorrow on the arrangements made for assigned counsel.

Page 32392

1 Following receipt of that report, the Trial Chamber will set out

2 in an order the modalities for the further conduct of the trial in

3 anticipation that evidence will commence on Tuesday, 7th September.

4 [Trial Chamber confers]

5 JUDGE ROBINSON: The modalities that will be set out will follow

6 broadly, generally the lines set out in Mr. Kay's draft.

7 Mr. Nice.

8 MR. NICE: If the Court has finished with that issue, there's an

9 entirely separate matter that I would wish to raise very briefly. It's

10 the subject of a memorandum that's been distributed this morning to all

11 parties and to the Court, and with your leave I'll recite its substance

12 which won't take very long to recite publicly.

13 It relates, with the Court's leave, to a quotation said by the

14 accused in his speech to have been an accurate quotation of former

15 President Clinton. I observe that it might be thought appropriate for any

16 newspaper that published this, particularly in the region, to publish the

17 correction with equal prominence.

18 What was said by the accused to have been said by the former

19 President Clinton on the night of the 24th of March of 1999 was that, and

20 I quote: "The Serbs did not cause only World War I. Without them, there

21 would have been no Holocaust."

22 As the proper record of the speech of former President Clinton

23 reveals, and that record is attached to the memorandum, the relevant

24 passage actually read as follows, and it's on the second page of the typed

25 version of the speech: "Sarajevo, the capital of neighbouring Bosnia, is

Page 32393












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13 French transcripts correspond













Page 32394

1 where World War I began. World War II and the Holocaust engulfed this

2 region."

3 The Court will observe the degree to which the quotation asserted

4 by the accused differs from what was actually said, and I'm grateful for

5 the opportunity to be able to make that correction.

6 JUDGE ROBINSON: Mr. Milosevic, you accept the correction, I take

7 it?

8 THE ACCUSED: [Interpretation] I will check the quotation. Perhaps

9 there was a mistake while the documents were gathered in relation to the

10 date, but I think that there is no mistake as far as the actual quotation

11 itself. I will check, in any case. If something is correct, then I don't

12 mind if it is corrected.

13 JUDGE ROBINSON: The transcript will have the record as put by the

14 Prosecutor and we await your check, but in the meantime the transcript has

15 the version put forward by the Prosecutor.

16 Any other submissions?

17 We are adjourned.

18 --- Whereupon the hearing adjourned at 11.42 a.m,

19 to be reconvened on Tuesday, the 7th day of

20 September, 2004, at 9.00 a.m.