Tribunal Criminal Tribunal for the Former Yugoslavia

Page 33226

1 Wednesday, 10 November 2004

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.03 a.m.

5 JUDGE ROBINSON: Mr. Kay, have you finished or --

6 MR. KAY: No, I hadn't, Your Honour.

7 JUDGE ROBINSON: Please continue.

8 MR. KAY: Thank you. Your Honour, yesterday we were really

9 dealing with two issues, as it turned out, our motion and application to

10 withdraw, as well as the issue of how assigned counsel should function in

11 the future. It seemed to us that the debate had moved from the

12 application before the Court to also include any future issue as to the

13 functioning of assigned counsel.

14 JUDGE ROBINSON: You think that your own cause was prejudiced by

15 that?

16 MR. KAY: I think that the Court may have been losing sight of the

17 issues that have concerned us over our withdrawal and what has caused us

18 to make that application.

19 JUDGE ROBINSON: But there is a sense, it seems to me, in which

20 the issue is wider than you. The issue you're raising is personal to you,

21 but in a real sense it is wider than your own interest and affects the

22 administration of the case, and so perhaps that is why it moved in that

23 direction.

24 MR. KAY: I have no difficulty in dealing with it on that basis,

25 but I did want to bring the Court back to the central issue of the

Page 33227

1 hearing, as well as deal with that issue in relation to the duties of

2 assigned counsel, because it is plainly something that would have

3 ramifications after any decision was made concerning our withdrawal. And

4 they are distinct issues, but they do have issues that are concurrent

5 issues. And in the discussion yesterday, it seemed that the Court was not

6 viewing the Code of Conduct with the importance that we as counsel view

7 the Code of Conduct.

8 I want to remind the Court that our appointment, the decision

9 appointing us is after considering the Statute of the Tribunal,

10 considering the Rules of Procedure, considering the directive on

11 assignment of Defence counsel, and considering the code of professional

12 conduct for counsel appearing before the International Tribunal.

13 That Code of Conduct is something that we would be liable for if

14 we violated it, but you Judges and the Prosecution would not be. So the

15 issues concerning it are issues related to us and our professional duty,

16 and we would be very concerned in committing any act that was in conflict

17 with the Code of Conduct and violated its provisions. It is an essential

18 part of the functioning of this Tribunal and something that we are

19 expected to pay regard to, just in the same way the Prosecutor is expected

20 to pay regard to the conditions of employment that govern the Prosecution

21 lawyers and is something within her domain and responsibility. Code of

22 Conduct, again, is something for which we must function within and ensure

23 our compliance.

24 And I want to make that clear, because as I said, the issues here

25 are merged but distinct. The reason why we're making the application for

Page 33228

1 withdrawal is as a result of conflict with the accused. The issues

2 concerning future assigned counsel and revised modalities, we say, must be

3 within the parameters of the Code of Conduct. And the situation the Court

4 has before it here is a novel situation.

5 We've referred to Blagojevic on several occasions, and that was a

6 very different case. That was a case where the accused, having given

7 instructions, given his counsel the conduct of the trial, all the legal

8 aid and funding that was given for his legal assistance being at a quite

9 considerable level, chose subsequently to make an application that he

10 wanted an alternative counsel. Well, that would have meant revised

11 funding, a new counsel coming in, and what could be seen as a waste of

12 resources. He wasn't applying to represent himself.

13 This is a situation that many jurisdictions, common law

14 jurisdictions, come across, and it's one that courts deal with in this

15 way, and I've had experience of it myself: You represent a client. He

16 wants a change of representation, but the case is at such a level and such

17 a level of funding has been expended that the Court says, "No. You have

18 to stick with those solicitors and counsel. If you don't, you have to

19 represent yourself." That's what happens in my jurisdiction. And in

20 those circumstances, the accused may opt to represent himself, but

21 generally, in 99 per cent of the cases, sticks with his representation in

22 relation to which a vast amount of money may have been expended. And

23 there's nothing wrong with that.

24 There may be occasions when, of course, the legal aid is

25 transferred from one counsel to another if it's appropriate and the Court

Page 33229

1 deems it in the best interests of the case. But at the end of the line,

2 if he seeks to change his counsel and the courts say no, his option is

3 that he represents himself thereafter. And that happens very frequently.

4 JUDGE ROBINSON: Mr. Kay, whether the purpose of an accused's

5 action is to change his counsel or to represent himself, I understand

6 Blagojevic to be saying that an accused does not have the right to

7 unilaterally destroy the trust between himself and his counsel and then to

8 benefit from that breakdown in the relationship. And I believe that

9 principle. Although the factual situation is different, I think the

10 principle can be extracted. And it is to be found in paragraph 51, where

11 the Appeals Chamber endorsed the finding of the Trial Chamber that an

12 accused does not have the right to unilaterally destroy the trust between

13 himself and his counsel. Similarly, an accused does not have the right to

14 claim a breakdown in communication through unilateral actions including

15 refusals to meet with or receive documents from his counsel in the hope

16 that such actions will result in the withdrawal of his counsel by the

17 Registrar. I think the principle is equally applicable here.

18 You mentioned the code, and it struck me, when I had the benefit

19 of thinking about it overnight, that the true position is that none of the

20 codes you have mentioned, including our own, deal at any rate explicitly

21 with the situation of an assignment of counsel against the will of an

22 accused. Yet the law has developed to sanction such an assignment.

23 Jurisdictions have it. Therefore, there must be a regime. There must be

24 a regime which deals with the interaction between counsel, an assigned

25 counsel, and an unwilling accused in such a case.

Page 33230

1 That is what is missing from the code. And therefore one is

2 called upon to apply one's mind to those codes which do not have explicit

3 provisions on them and to interpret them in the light of the development

4 in the law. That is the challenge that the Chamber faces in this -- in

5 your -- in your -- in dealing with your application.

6 MR. KAY: Several issues there in Your Honour's observations. If

7 I could deal with them one by one.

8 Firstly, in Blagojevic, the counsel did not raise the ethical

9 position. This was an application made by the accused. Counsel did not

10 raise his ethical position. He was in a position where he had been

11 instructed. He had received those instructions and had been given the

12 objectives of the case. He was aware of the accused's position and his

13 overall strategy in the conduct of the case, and what the Court was

14 dealing with there was when the accused, having gone down that route then

15 sought not to cooperate, there having been a relationship in the first

16 place.

17 Why I said this was a novel situation is that there has never been

18 this relationship in the first place. Whereas the Defence counsel in

19 Blagojevic - and we have a member of his team with us, in fact, working

20 with us on this case - where he presented that case, he had done so on the

21 basis of the instructions already given, and he didn't raise the ethical

22 issue.

23 The accused, having done what he did as an attempt to perhaps

24 manipulate an assignment to another lawyer and the ramifications that had

25 on the trial process, it was found that that was unacceptable and the

Page 33231












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 33232

1 Court would not brief another lawyer and all that that entailed. But the

2 accused never sought to represent himself.

3 That is why there is a big distinction here. And it is, in our

4 submission, dangerous to take some of these strands and say that they open

5 up a new line of jurisprudence. In our submission, they don't. You have

6 to go back to the core principles of what is going on.

7 The Seselj case has been cited. Seselj hasn't been in trial yet.

8 Seselj is only at pre-trial. And the lawyer representing Seselj, who has

9 been told to get lost, essentially, is in a position with no instructions

10 at all. And in the Seselj order, which is phrased very much in terms of

11 assistance: "To assist the accused in preparation of his case; to assist

12 the accused in preparation and presentation at trial; to receive copies;

13 be present in the court; to be engaged actively in the substantive

14 preparation of the case; to participate in the proceedings, in order

15 always to be prepared to take over from the accused at trial (see below)."

16 Such a measure: "In exceptional circumstances to take over the Defence

17 from the accused at trial should the Chamber find, following a warning,

18 that the accused is engaging in disruptive conduct or conduct requiring

19 his removal from the courtroom..."

20 Very different territory from what we are in now, and the ethical

21 position has not been raised by that counsel yet. And don't forget we're

22 on the second counsel that's been assigned to him.

23 It's very much a supportive, stand-by role, and was very different

24 from the more extreme order passed by this Court on the 3rd of September.

25 And the situation is very different in Seselj with his disruption of the

Page 33233

1 proceedings and conduct.

2 Whether it works remains to be seen. And there may well be

3 concern from any lawyer involved in that case in the future with what

4 exactly he can do.

5 JUDGE KWON: May I ask you, Mr. Kay, why you did not raise this

6 issue at the appeals hearing.

7 MR. KAY: Well, we were appealing the assignment of counsel issue,

8 which was a single issue before the Trial Chamber. And we did, in fact,

9 raise all the difficulties of presenting this accused's Defence.

10 If I can refer, in fact, because the modalities were mentioned

11 yesterday, and I'm afraid we've undertaken so much work in this case over

12 the last two months that you often forget how things arose and what was

13 said at the time, and I'm guilty of that. Because if I can remind the

14 Court, as we've gone back to the transcripts, that on the 1st of

15 September, Judge Robinson said that in the event that the Chamber should

16 decide to assign counsel, the Chamber would wish the parties to be

17 prepared tomorrow at 9.00 to advance submissions on the question of how

18 such assignment should be made, the manner in which such assignment should

19 be made, that is, the modalities that would given -- govern such an

20 assignment.

21 That was at a stage when we were amici curiae, and we had been

22 arguing against the fact of the assignment. Overnight, we drafted

23 modalities that we felt suited the Court in the representations and

24 statements that the Court had been made during the day concerning the

25 compulsory attendance of witnesses, concerning taking over the case, the

Page 33234

1 circumstances in which the trial should run. The Court had made it very

2 clear in argument what its view was on the issues, if you go through the

3 transcript.

4 So on the 2nd of September we came to the stage, after Mr. Nice's

5 representations, that I was asked to produce the modalities that we had

6 drafted for the Court. And this is at the transcript from page 32380 and

7 following, and it's important that we go through it. You can get this on

8 the LiveNote. Judge Kwon, I know, will be ...

9 [Trial Chamber and legal officer confer]

10 JUDGE ROBINSON: Yes, Mr. Kay.

11 MR. KAY: Thank you. Page 32380, line 22: "In view of the Trial

12 Chamber's indication last night of consideration of the modalities, I've

13 drafted a document overnight to try, in some way, put a shape on what

14 might have been the order. If I could hand that in to the Court now. It

15 might be a useful --

16 "There are always improvements that can be made on drafts --" and

17 it's headed Draft 1 -- "and the first point I urge before the Trial

18 Chamber is really dealing with it in the reverse of the Prosecutor's

19 order, and that is that the accused be granted seven days in which to

20 nominate counsel or counsels to be assigned to him by the registry."

21 We viewed it very much as an important feature here that he should

22 be able to exercise his will. That did not happen.

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

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

25 representation,'" and I say it may be an important issue if he wishes to

Page 33235

1 change his counsel because someone is not immediately available until a

2 later date.

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

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

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

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

7 concerning competence, integrity, and independence." And I cite: "In the

8 course of providing representation, counsel shall act with competence,

9 skill, care, honesty and loyalty, exercise independent professional

10 judgement, render open and honest advice, never be influenced in the

11 matter of his representation, preserve their own integrity and that of the

12 legal profession as a whole, never permit independence, integrity and

13 standards to be compromised by external pressures."

14 I relate to Article 11: "'Counsel shall represent a client

15 diligently and promptly in order to protect client's best interests.'

16 There are provisions of communication confidentiality, and then Article 14

17 dealing with a conflict of interest which may be the administration of

18 justice best interest issue we were dealing, 'Counsel owes a duty of

19 loyalty to a client but counsel always has a duty to the Tribunal to act

20 with independence in the interests of justice and shall put those

21 interests before his own interests or those of any other person,

22 organisation, or state.'

23 "Any counsel appearing as Defence counsel, and that includes

24 amici curiae, are bound by the Code of Conduct. There may be, in relation

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

Page 33236

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

2 there is a Code of Conduct that applies."

3 Judge Bonomy related an obvious example and said: "Mr. Kay is a

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

5 of interest outlined by Mr. Nice, and you would have to somehow or other

6 be protected from any complaint that might be made in view of the role

7 you've been assigned rather than appointed by the client."

8 "Yes. The witness issue," I say. "A lot of Defence counsel have

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

10 choose to call. Part of the skill and the art is often making that fit

11 into the case. This is a balance and exercise of judgement about which

12 there has to be discretion. It's a matter of discretion and often

13 judgement which has to be exercised.

14 "In paragraph 2 --"

15 Judge Bonomy intervenes: "Before you go on to that can I just ask

16 one other question on the general position of counsel so assigned. Do you

17 consider it's necessary to define the obligation any further than is

18 actually set out already in the code which you've already drawn attention

19 to and that is to act -- and that is to act in the interests of the

20 accused or the client? There was reference to the general interests of

21 justice, but it might be thought that general interests of justice are in

22 fact best served by acting in the best interests of the accused."

23 I say: "Absolutely. That's why I've dug up the Code of Conduct.

24 And when drafting this last night I wasn't thinking outside any other

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

Page 33237












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 33238

1 associates of the accused are bound by the Code of Conduct. Anyone acting

2 in one of the cases here is subject to the Code of Conduct, and we all

3 very much bear that in mind, which is why in paragraph 2 I've just put:

4 'The accused nominated counsel to have the obligation and power to

5 represent him as counsel in the proceedings.' And as counsel that is

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

7 I refer to paragraph 3, because of the hybrid nature which the

8 Trial Chamber obviously had very much in mind, and I had drafted those

9 modalities as an order to the amici curiae, as I saw it, to assist the

10 Court in the way they were going with this particular case as a result of

11 the argument the day before. It was not my submission as an assigned

12 counsel on behalf of the accused. And I say we: "... had this very much

13 in mind in considering this issue and the accused's right of

14 self-representation, I suggest that the accused be permitted to continue

15 to represent himself in the conduct of his trial by, inter alia,

16 questioning witnesses, presenting evidence, and making submissions to the

17 Trial Chamber in conjunction with his assigned counsel. And what I would

18 have in mind there, and it may be that this could be improved upon, is

19 that he would go first, and rather like the amici have done so far, if

20 they felt that there was a need to supplement submissions or draw further

21 details to the attention of the Trial Chamber working on the arguments of

22 the accused --"

23 THE INTERPRETER: Kindly slow down for interpretation.

24 MR. KAY: Sorry. "-- to do so as a way of supplementing the

25 litigant in person in his representations, which is why the word

Page 33239

1 'conjunction' has been put in there. And it's not in any way intended to

2 make the assigned counsel go first before the accused. That would be a

3 matter of choice between him and whomsoever he nominated in the

4 structuring of his Defence."

5 I had seen that the end of the road had perhaps come for this

6 accused in relation to his right to represent himself in view of what had

7 taken place in argument the day before and indeed the ruling of the Trial

8 Chamber that came about, and I was hopeful that this would be a matter

9 whereby the accused might well see that the time had come for him to

10 cooperate in the conduct and presentation of his Defence.

11 I then go through the paragraphs. I state: "In paragraph 4 I

12 have to deal with the further situation that in the event of the failure

13 of the accused to nominate counsel on his own behalf, the Registrar of the

14 Tribunal --" I'm at line 11. At line 11 on page 32385. "The Registrar of

15 the Tribunal will assign counsel to represent the accused, who in

16 circumstances and conditions in which the accused is unable or unwilling

17 to take part in the proceedings, will conduct the case on his behalf.

18 This is further elaborated upon. 'In the event of the failure of the

19 accused,'" and I cite there, "'or any persons acting on his behalf,' and

20 by that I mean those working with him currently in his Defence,

21 'cooperating with assigned counsel in the production and calling of

22 witnesses identified by the accused as potential witnesses in his case,

23 assigned counsel may," and that's the important word, "call those

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

25 case.'" And the first working place here, I say, should be the accused's

Page 33240

1 working list and that's what should be sought to be brought before this

2 Court.

3 I say: "I resile against some of the indications from the

4 Prosecutor that counsel may call entirely his own witness list." And I

5 say that that "would not be in the interests of justice," and I say that

6 "one must bear in mind whose case this is. It is the defendant's case,

7 and whatever beliefs or knowledges, whoever is assigned counsel may have,

8 it's not his case in terms of being the defendant, and that's what should

9 be worked upon foremost, and I would see it very much in terms of trying

10 to deal, whoever had this role, in a consensual way with the accused, on

11 his list, which is why that paragraph is within."

12 And then I go through paragraph 6 and 7, and I say at line 15:

13 "And that's been included very much as a result of the Trial Chamber's

14 rulings that expedition is one of the reasons why they have taken the

15 course they have today." And I refer to funding and say at line 22: "So

16 this -- this model works very much on the basis for implementation, that

17 it is the accused who should have the first choice, counsel nominated by

18 him would be bound by the Code of Conduct in any other way that counsel

19 appears before the Trial Chamber, and the order would enable him to

20 function in conjunction with the accused. Assigned counsel that has not

21 been nominated by the defendant to be very much a last resort and then

22 attempting to work within parameters of cooperation."

23 And I say that the role of the amici was completely different, but

24 Judge Kwon referred at page 32388, line 5, very much what could have been

25 in the air.

Page 33241

1 "Mr. Kay, thank you very much for what you have said. Can I ask

2 this, it's a general question: The Chamber decided, as was announced, to

3 assign counsel, but there may be some ways, various ways of assigning

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

5 expanding the role of the amici curiae. It may not necessarily be you,

6 Mr. Kay."

7 And Judge Kwon refers to the amici, "playing a role that is

8 similar to that of Defence counsel, so it may be a matter of nomenclature,

9 but if the Chamber redefined and expands the role of the amici curiae to

10 include to represent actively for the defendant, what would you say to

11 this?"

12 "I urge that we should go to stage one where the accused is able

13 to appoint a representative first and foremost. If we have to go beyond

14 that stage --"

15 Judge Kwon said: "That's the option which is open at any time to

16 the accused."

17 I refer in 32389, it would be a way of using the nomenclature of

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

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

20 we were doing before, it could be actively presenting his case if he was

21 unable to attend court.

22 So I have to say that I told this Court fairly and squarely about

23 the Code of Conduct and advise that anyone working would have to do so

24 within that code. The fact that we draft -- make a draft for the Trial

25 Chamber was the result of being asked by the Trial Chamber to do something

Page 33242

1 for them which they may implement. The responsibility was the Trial

2 Chamber's, and this was just a draft. And I say quite clearly you may

3 want to go to the Code of Conduct and consider matters. And the word

4 "may" is used. This was very much speculation. We were at a time when

5 the issue of the accused's representation was by no means settled in how

6 things were to develop and unfold.

7 The problem that came about, in my view, was the modalities and

8 the extreme form. That is what caused a breakdown in relations, and we

9 feel caused us eventually to be at the stage where we are in conflict with

10 the client, as assigned counsel, and why we have had to make the

11 application to withdraw. This arises from the conduct he has engaged in,

12 which has been to criticise our professionalism, to play the trick with

13 the witness Kanelli, to encourage a report to the Dutch Bar against our

14 conduct of his case. We have had to, in our own position, continue to

15 fight to his -- for his rights to represent himself, and in doing so in

16 the Appeals Chamber have had to say this is his case, we don't know it.

17 This is his Defence, this is something that only he can present, and

18 refer, in fact, to once, as I cite in our text, once what was a cordial

19 relationship has deteriorated and that we are unable to function with him.

20 So this was all spelt out in relation to what could happen, and we

21 find ourselves, because it is our decision to judge the consequences of

22 that, that we feel that we have an ethical issue that has put us at the

23 point of no return. And it would be difficult in the future for anyone to

24 say, "Well, of course that's not his Defence because Mr. Kay said down at

25 the Appeals Chamber when he got his rights back for the accused. He said

Page 33243












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 33244

1 he didn't know his Defence and couldn't present his Defence." Judge

2 Bonomy said yesterday, Well, you can pick these strands up out of what is

3 said and what is done and representations that there may be. You can to a

4 certain extent as amicus curiae, but there does reach a point when the

5 whole thing founders and you're driven into the sand and you are unable to

6 function ethically correctly.

7 If the Court had suspended the proceedings pending the appeal, it

8 might have been a different issue. If the Court had, pending the appeal,

9 permitted the accused to question the witnesses first and be in the

10 driving seat in the presentation of his case, it might well have been a

11 different issue, and it may not have caused an ethical issue. We are very

12 much here in a novel and unique series of developments.

13 JUDGE BONOMY: Mr. Kay, the difficulty I have with this submission

14 is that this was all foreseeable. I was very concerned at the time, as

15 you've pointed out, about the application of the Code of Conduct, and I

16 regarded your responses at the time as indicating the code applies, no

17 question of any attempt to modify or amend it in the circumstances, we

18 will work against that background, we have considered our submissions

19 against that background, it's entirely on that basis that we present these

20 proposals. And included in these proposals was the foreseen situation

21 that there would be no cooperation and that you would be faced with the

22 position you're faced with today.

23 And you've now outlined specifically the basis on which you say

24 there is an ethical problem for you, and all it amounts to, as far as I

25 can see, is that you're being criticised.

Page 33245

1 MR. KAY: No, not at all, and we'll go to the codes later on. Our

2 conduct is being impugned. And this is not a question of a dispute over

3 tactics. This is a question of an issue between the accused and ourselves

4 as to whether we are proper counsel, whether we have -- are fit enough to

5 conduct his case.

6 He might be wrong about that, but it is an issue there that

7 impugns our professionalism. It is not a dispute or argument that may

8 arise over the questioning of a witness or a tactic in a case that

9 sometimes you may come across in a trial. It is more a personal matter

10 and that anyone looking back on this case, if we were in the future to be

11 involved, will say, "Well, he called his counsel a prosecutor, he was

12 involved in reporting him for unprofessional conduct to the Dutch bar, he

13 was in his dispute with him, the counsel himself had to argue against his

14 own position at the appeal, the counsel then raised it to the Judges and

15 said this was of concern in his ethics, the Judges wouldn't pay attention

16 to that, but all these warnings and signals show that there was a conflict

17 of interest in the representation of the accused by assigned counsel."

18 And of course these things were -- were predicted, but as I say,

19 you have to work within the Code of Conduct. And I used the word "may."

20 You don't know how things are going to develop. And I must say from the

21 experience I had working as amicus curiae when there was no

22 acknowledgement between the accused and ourselves, and there was indeed a

23 hostility on the first day, but we were appointed by the Court and didn't

24 have a professional relationship with the accused, and we were performing

25 a function for the Judges in assisting the accused but without that

Page 33246

1 relationship that comes about from an accused and his counsel.

2 We developed a cordiality that was apparent, and Mr. Milosevic has

3 made no secret of that and has referred to submissions that we have made

4 on occasions with approval, or questioning that we have done with

5 approval. But we have moved beyond there. And I was hoping, as indeed

6 everyone was hoping, in fact, that we could make this work, and that is

7 why we were acting in good faith and wanting to keep the accused in the

8 driving seat.

9 You often get to a crisis point in a case where decisions have to

10 be made, where you're going with it. And we were all there at the

11 beginning of September, and perhaps he could have been there as well, that

12 there would have been assistance that he would have welcomed in the

13 presentation of his Defence and being, as I referred to later on in the

14 transcript, to a development of a relationship that would enable his

15 Defence to be effectively and properly put.

16 JUDGE ROBINSON: Mr. Kay, he's back in the driving seat now. He

17 has been put back in the driving seat now. Doesn't that resolve many of

18 the problems that you have raised?

19 MR. KAY: Again we've got the two distinct issues, which is my

20 ethical position that I feel today as well as what this Court may do if it

21 continues with assigned counsel and the Code of Conduct. And Your Honour

22 has said, well, you feel the Code of Conduct isn't the answer to this and

23 it doesn't deal with this situation. I'd like in fact to refer you to the

24 regulations --

25 JUDGE BONOMY: Could I just briefly intervene before you do that?

Page 33247

1 It's on the same subject, but can you remind me before you do so where in

2 your pleadings, your filing, you refer to conflict of interest as being

3 the issue.

4 MR. KAY: In which pleading, My Lord?

5 JUDGE BONOMY: In the filings you've submitted to us in relation

6 to your motion to withdraw. Where do you identify it as an issue of

7 conflict of interest?

8 MR. KAY: I think we cite all the regulations that --

9 JUDGE BONOMY: Yeah, you can throw things at us and leave it to us

10 to sort it out or you can focus the issue.

11 MR. KAY: It's page 14 --

12 JUDGE BONOMY: Page 14, thank you.

13 MR. KAY: -- paragraph 38. And again, this is something that -- I

14 cite Article 14 of the Code of Conduct, and counsel owes a duty of loyalty

15 to a client. Counsel also has a duty to the Tribunal to act with

16 independence in the interests of justice and shall put those interests

17 before his own interests or those of any other person, organisation, or

18 state, which may well be an issue that we're having here.

19 JUDGE BONOMY: Thank you. That clarifies the point. Thank you,

20 Mr. Kay.

21 MR. KAY: Yes. And I raise there that the loyalty to a client who

22 doesn't want to have assigned counsel causes a clear conflict of

23 interest.

24 There's no relationship between us. There isn't the fiduciary

25 relationship that you get between attorney and client. We can't advise

Page 33248

1 him if he wants advice. We can't consult with him. And at the end of the

2 day, we have tried to make this work, working from the basis of our

3 original submission, but as I said yesterday, it foundered in the sand,

4 and what may have been --

5 JUDGE BONOMY: We've heard this several times already. I

6 understand the point.

7 JUDGE KWON: Mr. Kay.

8 MR. KAY: Judge Kwon.

9 JUDGE KWON: You yourself said earlier than just now that all

10 problems stems from the extreme form of modalities which was quashed by

11 the Appeals Chamber. So as Presiding Judge pointed out, please

12 concentrate on the new regime, which is guided by the Appeals Chamber

13 decision.

14 MR. KAY: Yes. He is back in the driving seat, which was the

15 phrase that was used, and that's probably the most appropriate phrase to

16 use in these circumstances.

17 Our point is it is what has occurred over the previous eight weeks

18 which has caused this conflict and this ethical issue. And it is very

19 much a case where we have been publicly criticised, impugned, and that has

20 caused, we feel, a position where our relationship, if anyone was to view

21 it, they would say, well, this is not the healthy basis for an assignment

22 that should exist, because you've had this conflict between him and you.

23 It -- that conflict, it cannot be made right by a revised order of

24 modalities. That is what we are saying to the Court. We are concerned

25 about our professional position.

Page 33249












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 33250

1 JUDGE BONOMY: But it does mean in the end, Mr. Kay, that you can

2 never assign counsel to an intransigent client.

3 MR. KAY: It's what they do as assigned counsel that may well be

4 the issue. And it may come down to that, but it's what they do and how

5 they build.

6 Often you'll get an accused and you're meeting him for the first

7 time and he doesn't want you and you're a replacement counsel, and you

8 perhaps get more than five minutes, you get ten minutes, 15 minutes, 20

9 minutes, and you work on it, and you may build that kind of relationship

10 that can then make it work. It's not an exact science, and it's sometimes

11 why some of us are Defence counsel, as we are quite good at handling

12 people.

13 You do get the extreme case, and that is where we are now, we

14 feel.

15 JUDGE ROBINSON: Mr. Kay, I'd like to say two things. First, is

16 there not an element of prematurity in your application? You have more

17 than once stressed, as Judge Kwon just said, that the basis of the problem

18 was the modalities order. That has now been changed, effectively, by the

19 Appeals Chamber. You have no way of knowing with any certainty the kind

20 of relationship that will be produced by that change as between yourself

21 and the accused. So there may be an element of prematurity in your

22 application.

23 The second point I wanted to make has to do with the regime

24 relating to the assignment of counsel against the will of an accused, and

25 which I say is not dealt with explicitly in the code.

Page 33251

1 If your submissions are correct, then it is not possible -- it

2 would not be possible, as Judge Bonomy just said, to assign counsel

3 against an intransigent client. But if it is lawful, as the Appeals

4 Chamber has clearly indicated, and competent to assign counsel, then there

5 must be a way of implementing such an assignment. It cannot be that such

6 an assignment can only be implemented if the accused cooperates and

7 communicates with counsel.

8 Quite clearly the Appeals Chamber envisaged some activity on the

9 part of assigned counsel, because they go on in their judgement to deal

10 with the situation where the accused is ill and assigned counsel taking

11 over the case during his temporary absence from court.

12 Now, if the Appeals Chamber envisaged that, that clearly implies

13 activity on the part of assigned counsel, and an activity which may very

14 well have to go on and take place without instructions and without

15 communication from counsel, because there may be none. But the Appeals

16 Chamber clearly envisaged that, during his absence, assigned counsel would

17 continue the case.

18 And so it comes back to the question that the issues that are

19 raised by your application, I have to say, go beyond your personal

20 interest and affect the entire administration of justice in this case,

21 because I cannot accept -- I find it difficult to accept that you have a

22 situation in which it is competent for a Court to do something but it is

23 not legally possible to implement a decision which is totally in

24 conformity with the application of that competence. And I believe the law

25 now is, and the codes probably should be brought up to be in conformity

Page 33252

1 with that, the law now is that it is competent in certain situations to

2 assign counsel. The Appeals Chamber affirmed that part of the decision

3 and clearly envisaged a role beyond one of mere passivity by counsel.

4 And so the difficulty, I think, that the Chamber faces in

5 accepting your submissions and your application is that it may in effect

6 mean that in this case counsel cannot be assigned unless the accused

7 cooperates with counsel or communicates with counsel or unless there is

8 envisaged for counsel a role which doesn't go beyond one of mere

9 passivity.

10 MR. KAY: Sometimes the winds of what happened elsewhere should

11 blow into a court and a justice system to provide fresh air on an issue,

12 and in my jurisdiction this would be handled, quite simply, by the fact

13 that if you didn't want counsel, you didn't get it; you'd represent

14 yourself. And that's how -- there would be no question in an adversarial

15 system, which is party driven, of doing what we are doing here.

16 JUDGE ROBINSON: Let me say something about that because I too

17 have struggled with the nature of the system which we have here. And you

18 have said it is adversarial, and I come from the adversarial model and am

19 firmly grounded in it, but I've had to undergo a restructuring of my

20 thinking in relation to how the Tribunal operates. It is true, I think,

21 that in principle the system for presentation of evidence is adversarial,

22 but it is not entirely adversarial. Many elements from the civil law

23 tradition have been introduced into the system, and so if you approach it

24 that way, you are going to end up with the wrong conclusions. And I've

25 had to teach myself that.

Page 33253

1 You well know the position that I've taken, for example, in the

2 Prosecution's case on cross-examination. It is informed by the

3 adversarial system out of which I come, that it is the case is the case

4 for the accused, and he knows his case best, and therefore, he must be

5 allowed to cross-examine. That is what has informed my entire position

6 and why I dissented consistently on that question.

7 But it is not true to say that the system that we have here is

8 wholly adversarial. If you want a correct description of it, you'd have

9 to say it is primarily or essentially adversarial. So that when you say

10 that the case is the accused's, even that has to be -- even that has to be

11 changed, in my view. The case is the accused's in some respects, but in

12 other respects, because we have introduced strong elements from the civil

13 law tradition, the case is also the case -- the case also belongs to the

14 Court. It is also Court driven, judicially driven, in some respects.

15 So it is not correct, in my view, to say that the system is

16 adversarial. The correct description would be that it is primarily or

17 essentially adversarial. And it is in those elements, it is in those

18 areas where it is not adversarial that I think we have -- we have the

19 problems for lawyers who come from the common law adversarial model.

20 MR. KAY: The problem I have is actually reflected in the Dutch

21 Code of Conduct, the same issue, and it's not confined to the common law

22 ethical dilemma.

23 The President in the Appeals Chamber hearing asked me what I would

24 suggest, and I was very conscious. I've been practising in this Court

25 since 1996, in the International Tribunals. And I said, Well, it's his

Page 33254

1 case, his responsibility, let him do it and he takes responsibility for

2 it. If the Court wishes to deal with any Defence issues on the indictment

3 that he has not covered, not been adequately presented, they can call

4 evidence through their own counsel. And that would be, in my view, the

5 way that this Tribunal could function as a hybrid on this particular

6 issue.

7 But the part of the -- the dimension of the case that we are

8 dealing with is adversarial, in fact, when it is the accused's case.

9 There are devices and means that you could introduce the judicially driven

10 system as a valid component which exist under the Rules.

11 JUDGE ROBINSON: Well, let me intervene there. In those

12 jurisdictions where -- and this includes the jurisdiction of the accused,

13 where it is mandatory to have counsel for certain offences -- and let us

14 be clear about this: If the accused were being tried in his own country,

15 counsel would have been assigned to him against his will from the very

16 beginning. But in those jurisdictions and other jurisdictions which were

17 cited where the law provides that where there is no cooperation or

18 communication from accused, counsel acts in his best interest, in what

19 counsel determines to be his best interest, the concept and the principle

20 underlying that approach is not adversarial, because it overrides the

21 interest of the party, the accused. And we have adopted that approach

22 here. So in that respect, in my view, that is not following the

23 adversarial model, because if you are following the adversarial model,

24 counsel would not be permitted to determine the best interests of the

25 accused. It would be left entirely to the accused.

Page 33255












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 33256

1 So it is envisaged in some jurisdictions that counsel and the

2 Court can, when an accused is intransigent, refuses to cooperate, refuses

3 to communicate, take action in the wider interests of the administration

4 of justice.

5 MR. KAY: In the civil law model that Your Honour referred to,

6 which has been referred to many times by the Prosecution without ever

7 producing the Code of Conduct from the Yugoslavia Bar, there is no

8 obligation to put the case of the accused by the stand-by or court

9 appointed counsel. That's the great difference between the judicially and

10 party driven systems. And what is expected within this system is the

11 putting of the case and the putting of the Defence case by the Defence.

12 And that is where, in fact, the common law code and the code of this

13 Tribunal do apply to this particular situation that we're faced with.

14 The Code of Conduct that we have, we submit, is very clear on the

15 issue of what assigned as well as counsel chosen by the accused can do or

16 not. Maybe if we look at those regulations now it might well assist if we

17 are considering what those duties are and how they are particularly

18 framed, we say, to deal with this issue.

19 The Appeals Chamber, in citing, in paragraph 20, what may happen

20 in the future in relation to this case, was solely dealing with the issue

21 of the fact of the assignment, that issue of law. The issue of the Code

22 of Conduct was not before it and the Judges weren't seized of that matter,

23 because the two issues that have brought us here to raise these matters,

24 as I've said, are distinct.

25 And if we could just go --

Page 33257

1 JUDGE BONOMY: Can you possibly go straight to any provision that

2 is in conflict with the codes of civil law jurisdictions.

3 MR. KAY: No, I'm afraid that would fail me to say what would be

4 in conflict with a civil law code within here. We do have the Dutch code

5 within here, and we have the international code. So it may be that that

6 comes about, but on the cuff, can't do it.

7 JUDGE KWON: But how about a Scottish lawyer who is assigned to

8 defend the accused in sexual offences case against his will?

9 MR. KAY: These are Home Office regulations, as we know,

10 concerning the imposition of counsel. There's a big issue in rape cases

11 where an accused choose to represent himself and cross-examine the rape

12 victim, which has been found offensive.

13 We're not -- in our respectful submission, we are not in this

14 territory with this case. It is not the kind of issue --

15 JUDGE KWON: But the Presiding Judge pointed out that our Code of

16 Conduct or Codes of Conduct you're referring to did not envisage such

17 instances as this when counsel was assigned against the will of the

18 accused, in particular for health reasons.

19 MR. KAY: The Code of Conduct is something that was devised with

20 representations from the Judges, Bar, many outside institutions, to

21 regulate Defence counsel and also protect Defence counsel, and violations

22 of that code we are held responsible for, either at our own Bar or here.

23 JUDGE BONOMY: I think, though, Mr. Kay, Judge Kwon's point is

24 that these -- these changes are taking place in common law jurisdictions.

25 In my own jurisdiction, there seems to be the most extreme change of all

Page 33258

1 in respect that an accused person in a sexual offence case cannot even

2 appear at a preliminary hearing without counsel even should he wish to do

3 so.

4 Now, the Bar code hasn't been amended to deal with that situation,

5 so it must be read against that background. You make the point that there

6 are regulations which provide, to some extent, for the situation, and

7 indeed legislation that may say what the duty of counsel is, but

8 nevertheless the code still applies and has to be read in the context of

9 the legislation. And as Judge Robinson said, that's precisely the job we

10 have to do here; we have to read the code against the legislation that

11 we're dealing with.

12 MR. KAY: Yes. And the problem of taking such an extreme

13 circumstance as the sexual case, which has to do with the victim and the

14 accused and what has taken place or alleged to have taken place, is that

15 we are dealing with a far fuller and rounder indictment, and I don't think

16 any country, any state, would start amending its legislation to take away

17 the right of self-representation in further cases such as this. It would

18 be an extreme measure that probably would not be welcomed.

19 The particular category of sexual offences often does cause

20 difficulty. There's separate provision in the Rules here in relation to

21 cross-examination in sexual cases. They throw up a distinct line that can

22 be distinguished from this particular case.

23 I'd like to direct the Court to the preamble of the code. The

24 bundle that you were provided with has a Registry identification number in

25 the top right-hand corner of 39454, and it's the Code of Professional

Page 33259

1 Conduct for Counsel Appearing Before the International Tribunal, as

2 amended on the 12th of July, 2002. Of course, this accused started the

3 proceedings against him in July of 2001, so his case which has been before

4 the Tribunal has even been in existence during amendments to this code,

5 which obviously is something that is a document that may be amended to

6 cope with different situations. It's been amended subsequent to him

7 representing himself and, indeed, having health issues.

8 The Registrar has considered the Statute of the Tribunal, the

9 Rules, the directives. Considering that counsel shall, and it's

10 mandatory, adhere to a code of professional conduct in the performance of

11 their duties, considering that counsel appearing before the Tribunal come

12 from various jurisdictions and that the interests of justice require all

13 counsel to adhere to the same code of professional conduct, and

14 considering the revision of the code.

15 So this is not something that arrives just from the common law

16 tradition. It is a multi-jurisdictional document which is enabling

17 lawyers from Serbia, UK, America, to be able to perform their function in

18 this court.

19 We go to Article 8, Registry page 39452, which deals with the

20 scope of representation. And it's a scope that was devised to take into

21 account the proceedings within which we all perform. And it says:

22 "Counsel shall advise and represent a client until your representation is

23 terminated. When representing a client, counsel shall abide by the

24 client's decisions concerning the objectives of representation. Consult

25 with the client about the means by which those objectives are to be

Page 33260

1 pursued but not bound by the decision, and seek or accept only those

2 instructions which emanate from the client and which are not given as the

3 result of an inducement from any person, organisation, or state."

4 So it has very much in mind that the function of counsel shall be

5 within those terms of what we would -- we would say are instructions,

6 which are the objectives of representation.

7 JUDGE BONOMY: But it's easy to read that provision in the light

8 of the current circumstances. You could not possibly be said to be in

9 breach of any part of that provision.

10 MR. KAY: It's a bedrock of what happens. If you went back to

11 Article 3 and saw the basic principles, in Article 3, which underwrites

12 the obligations here, client having the right to legal assistance. "As

13 legal practitioners, counsel shall maintain high standards of professional

14 conduct." That is why we're concerned with how we are viewed. "The role

15 of counsel as advocates in the administration of justice requires them to

16 act honestly, independently, fairly, skilfully, diligently, efficiently,

17 and courageously. Counsel have a duty of loyalty to their clients

18 consistent with their duty to the Tribunal to act with independence in the

19 administration of justice."

20 JUDGE ROBINSON: Mr. Kay, I think one thing should be clear: When

21 you mention the obligation to maintain high standards of professional

22 conduct, you're not unprofessional merely because the accused says so.

23 You're not unprofessional merely because the accused describes you as a

24 prosecutor. I'd like that to be quite clear.

25 MR. KAY: I accept that, and I would take issue, perhaps in

Page 33261












12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond













Page 33262

1 different circumstances, to argue that matter out if I'm ever given the

2 opportunity, but so far I am not.

3 Article 4, just below there, says: "If there is any inconsistency

4 between this code and any other codes of practice and ethics governing

5 counsel, the terms of this code prevail in respect of counsel's conduct

6 before the Tribunal."

7 This is very much the defining document over what we are -- should

8 -- to do.

9 I've dealt with Article 8. Article 10. Competence, integrity,

10 and independence. The court can see those. They also include loyalty.

11 Render open and honest advice, never be influenced in the matter of

12 representation. Importantly, preserve their own integrity and that of the

13 legal profession as a whole. And the Court is right, this does have wider

14 ramifications. "Never permit their independence, integrity, and standards

15 to be compromised by external pressures." And that is why I'm saying, in

16 resistance to the Court, I do not want to compromise us and violate the

17 Code of Conduct. And we have the duties of diligence and conflicts of

18 interest.

19 Article 14, again, we've cited that already: "Counsel owes a duty

20 of loyalty to a client. Counsel shall exercise all care to ensure no

21 conflict of interest arises."

22 That is that code which requires us to abide by his objectives of

23 representation. Well, what are they? They are: I don't want you calling

24 my witnesses, I don't want to talk to you, I don't want you participating

25 in my case. That's part of the objectives of representation of this

Page 33263

1 accused. I am faced with that background, you see. And that's been made

2 clear. We've been able to try these things out and see where it got us

3 from the 3rd of September until the Appeals Chamber decision, and we've

4 been able to see that our function could not work.

5 I have set out, because it's important to us, at 39436 from my own

6 Bar what is applicable to all barristers and what is important as well,

7 because if there is a conflict between this code and my Bar code, then I

8 have to follow this code, but if this code is silent, I have to pay regard

9 to my Bar code because I have a liability back home to anything I may do

10 in whatever court wherever.

11 "A barrister must have regard and must not engage in conduct,

12 whether in pursuit of his profession or otherwise, which is, in 3, likely

13 to diminish public confidence in the legal profession or the

14 administration of justice or otherwise bring the legal profession into

15 disrepute."

16 I have argued for this man about the retention of his rights and

17 said quite firmly at the Appeals Chamber that I do not have possession of

18 his Defence case. I am concerned, as I have made clear, that anyone

19 looking at this in the future would turn around and say, "Well, you had

20 said that about his Defence. How could anyone ever accept what you said

21 as being accurate? There is a conflict of interest."

22 JUDGE BONOMY: Going back to Article 14.

23 MR. KAY: Yes.

24 JUDGE BONOMY: It does seem in context that it's not dealing with

25 the issue of a conflict between client and counsel but the situation where

Page 33264

1 counsel has a conflict of interest because of other matters. Is that not

2 so?

3 MR. KAY: It's -- the whole -- all issues of conflict of interest

4 are within the same article, involving liability, representing

5 co-defendants, financial interests. Every single form of conflict is

6 under the one heading. And the conflict of interest concerns counsel

7 rather than an accused. It's written from our perspective, which is why

8 it would say counsel shall exercise all care to ensure that no conflict of

9 interest arises, and that may be with him and the client, with him and the

10 Prosecution, with him and whatever.

11 JUDGE BONOMY: And again, you couldn't be said to be in breach of

12 that.

13 MR. KAY: Well, there is in that, in putting forward the

14 objectives of his representation, it could arise because I've said I don't

15 have his Defence and I don't know his Defence and I've not been given it,

16 that there is a conflict of interest if this Court required me to commit

17 such an act and put that forward. Clear conflict of interest, we submit,

18 under Article 14.

19 We have a duty of loyalty to the client. Our client says, "Don't

20 want you. Out of my case."

21 JUDGE BONOMY: You see, we dealt with that, Mr. Kay, as best we

22 could in the modalities order in which we provided that you were to act

23 throughout in the best interests of the accused. So we specifically did

24 exactly what the statutory provisions in common law jurisdictions do where

25 the right to represent oneself is removed. We covered counsel's situation

Page 33265

1 by stating clearly what you do is act in what you perceive to be the best

2 interests of the client.

3 MR. KAY: But you've made me his counsel, and as making me his

4 counsel, I owe a duty to him, not to you. My loyalty is to him. That is

5 explicit.

6 JUDGE BONOMY: But your duty is to do your best not to create a

7 conflict of interest and to act in his best interests, and no one can say

8 you've been doing other than that.

9 MR. KAY: Well, it may well be -- well, we have reached the stage

10 where there are imputations about our character. There is a conflict over

11 the conduct of his case. There is this essential conflict. And I owe a

12 loyalty to him, because he says, "I don't want you. I don't want you

13 doing anything." And my loyalty has to be to him on that issue. I can't

14 -- now, we have tried to make this work. It didn't succeed. I can't now

15 go any further with this issue, him having expressly made his intentions

16 and wishes clear, me having expressed it in the Appeals Chamber. I have

17 acted in his best interests and out of loyalty to him to appeal the ruling

18 and attempt to get his rights back, and that has been something -- an

19 obligation about which we had a consistency.

20 But my loyalty now comes from totally there. I cannot be in any

21 way removed from that, and that is the difficulty with assigned counsel.

22 JUDGE BONOMY: Let me give you an example, Mr. Kay, of what might

23 happen hereafter. Let's assume a witness called by Mr. Milosevic is

24 examined at great length and a number of relevant points of evidence are

25 given by the witness and a great deal of irrelevant evidence is given by

Page 33266

1 the witness. Let's picture that possibility for the moment.

2 And in the course of that, because concentration -- his

3 concentration is misguidedly upon irrelevant issues, you spot something

4 significant and simple that he's missed. You know about it because you've

5 been involved in the case from day one and you've got the broadest

6 possible experience of it. What would you do when it came your turn to

7 participate in the trial after he had completed his examination?

8 MR. KAY: And if I was assigned counsel rather than amicus or

9 anything else.


11 MR. KAY: Yes. As assigned counsel, I'd have to ask his

12 instructions to make the point.

13 JUDGE BONOMY: And -- precisely.

14 MR. KAY: And if he said no, that's it.

15 JUDGE BONOMY: You would have instructions. Let's assume he said,

16 "Please yourself," which he may do.

17 MR. KAY: That might be ambiguous. I would take that as an

18 ambiguous issue that I might be able to run with. I'd have to consider

19 it, but --

20 JUDGE BONOMY: Your duty is to act in his best interests. It's

21 been spelled out. So you would need to consider it against that

22 background, but you wouldn't be hamstrung.

23 MR. KAY: If he told me no, I don't know his -- I don't know why

24 he hasn't asked it, and it may be that it's a damaging -- it comes about

25 that it's a damaging question. And if it is and I've then damaged his

Page 33267

1 case because I don't have his instructions at all and I just go ahead and

2 ask it with the best of intentions and well motivated and without his

3 instructions and I get the wrong answer, I've damaged his case. I am in

4 breach. I haven't been loyal to him.

5 It's very different from the amici position where we were not put

6 in this fiduciary position.

7 JUDGE BONOMY: Mr. Kay, for my part, I have to say that I consider

8 you to be completely wrong in your assessment of the consequences of the

9 situation as you've pictured it. The provision is quite clear in the

10 modalities order that you would be acting in accordance with it in the

11 best interests of the client as you saw them.

12 MR. KAY: The problem is in assuming that you know the case. And

13 when you question a witness and discuss a Defence with a client, you seek

14 to avoid damaging answers, and so you -- you tell them, "Look, I'm worried

15 about this, and if it goes wrong, what do we do?" And the client may say,

16 "Don't ask that question. I'll tell you why. There's another witness

17 here." But that's because you're in a position where you're

18 communicating, you're discussing the case, you have a fiduciary

19 relationship, and it can work. It does work. But if you don't have those

20 instructions and you ask that question, well motivated and not with any

21 malicious intent, thinking you're acting in the best interests - and

22 that's the problem, thinking that you're acting in the best interests -

23 and it goes wrong, the defendant could appeal and say, "I gave no

24 instructions for that question to be asked, it was a damaging question, my

25 counsel was negligent, incompetent, and I want a retrial."

Page 33268

1 We get this very often now. All high-profile cases are subject to

2 that kind of scrutiny. In the last ten years, this has been a growth

3 industry against Defence counsel in criminal cases at all Bars, and it's

4 why we are very concerned about some of these issues today. We cannot be

5 as robust as Defence counsel perhaps were -- well, I know they were, 20 or

6 30 years ago. The appeal system and scrutiny and the concern for

7 accused's rights which has had such a powerful effect on all justice

8 systems require Defence counsel to be very, very careful in their conduct

9 and behaviour.

10 I was -- I hope I dealt with this issue. I was just referring the

11 Court to my own code at -- it's half past ten.

12 JUDGE ROBINSON: Yes. Thank you. Well, we'll take a break for 20

13 minutes.

14 --- Recess taken at 10.30 a.m.

15 --- On resuming at 10.58 a.m.

16 JUDGE ROBINSON: Yes, Mr. Kay.

17 MR. KAY: Thank you, Your Honour. Just before the short

18 adjournment, we were looking at the English Code of Conduct, and I was on

19 page 39435, top right-hand corner of the Registry bundle. And it's

20 regulation 307 at the foot of the page.

21 "A barrister must not: (a) permit his absolute independence,

22 integrity and freedom from external pressures to be compromised; (b) do

23 anything ... in such circumstances as may lead to any inference that his

24 independence may be compromised."

25 And then (c): "Compromise his professional standards in order to

Page 33269

1 please his client, the Court, or a third party."

2 And perhaps the Court can understand now why we are in this

3 territory that we are.

4 The Code of Conduct at 609, if you turn to top right-hand corner

5 39428. Regulation 609. "Subject to paragraph 610 a barrister may

6 withdraw from a case where he is satisfied that: (a) his instructions

7 have been withdrawn; (b) his professional conduct is being impugned; (c)

8 advice which he has given ... has not been heeded; and (d) there is some

9 other substantial reason for so doing."

10 Again, it is from that particular perspective as well that we are

11 viewing the professional issues that have arisen.

12 At Registry page 39422, we set out the Dutch Code of Conduct,

13 headed "Relationship With The Client. The interest of the client rather

14 than any self-interest of advocates shall determine the manner in which

15 advocates are required to handle cases."

16 It's 39422. And it's the reverse numbering system for filing that

17 requires mental gymnastics, but 39422. Right at the top there, Your

18 Honour, at Rule 5 in the Dutch Code of Conduct: "Interest of the client

19 rather than any self-interest of advocates shall determine the manner in

20 which advocates are required to handle cases."

21 Rule 9: "Advocates shall assume full responsibility for the

22 handling of a case. Advocates may not evade this responsibility by

23 invoking the instruction received from their client. They shall not

24 however, perform any acts against the apparent wishes of the client."

25 And in 2: "If a difference of opinion exists between an advocate

Page 33270

1 and his client concerning the way in which the case should be handled, and

2 this dispute cannot be resolved by mutual consultation, the advocate shall

3 withdraw."

4 Next area which is of relevance is the Code of Conduct for Lawyers

5 in the European Union.

6 JUDGE BONOMY: Remind me, Mr. Kay, before moving on to that,

7 whether the Dutch system is one in which there are any rules obliging or

8 requiring a representation in criminal proceedings.

9 MR. KAY: No. I'm thinking back to the discussion I had with a

10 Dutch lawyer when this was arising on the 3rd of September, and maybe if

11 we could just have that looked at.

12 JUDGE BONOMY: I can get the answer later. Just carry on for the

13 moment. Thank you.

14 MR. KAY: I'm sorry, I did know the position, but I can't recall

15 the issue.

16 Looking at the -- what I -- what the position would be with a

17 Dutch lawyer is that he would not participate, in the circumstance. That

18 was the summary of the advice that we were given by a member of the Dutch

19 Bar, that he wouldn't even try to have made the modalities work, that they

20 would just withdraw and that would be it.

21 The Code of Conduct for Lawyers in the European Union is at 39408,

22 and it's 39403, at paragraph 2.7 that we consider the client's

23 interest within the European dimension.

24 "Subject to the due observance of all rules of law and

25 professional conduct, a lawyer must always act in the best interest of his

Page 33271

1 client and must put those interests before his own interests or those of

2 fellow members of the legal profession."

3 And the issue we have here is what has been expressed by the

4 accused in relation to us participating, and that is his interest that he

5 is guarding to himself.

6 In the draft code of the International Criminal Court, which is

7 set out at Registry page 39393, independence of counsel is set out at

8 39389. Paragraph 7, subparagraph 2: "Counsel must not (a) permit his or

9 her absolute independence, integrity and freedom to be compromised by

10 external pressure."

11 In (b): "Do anything as may lead to any reasonable inference ...;

12 or (c), compromise his or her professional standards in order to please

13 the client, the Court, or a third party."

14 And the Court will remember that that was reflected in the English

15 Bar code at -- I think it was 609. Which is why we say that the

16 professional Code of Conduct is binding on us and causes us to act in

17 accordance with that rather than any order of modalities that would

18 conflict with it.

19 Loyalty and integrity, paragraph 2: "While maintaining due

20 respect and courtesy towards the court, counsel shall defend the client's

21 interests honourably and fearlessly without regard to counsel's own

22 interests or to any consequences to counsel or other persons."

23 And that was the issue I was saying that he is now my "client,"

24 I'll put in inverted commas, and he has made his position clear and stated

25 it, and that is what I'm following in relation to his apparent

Page 33272

1 instructions on the issue.

2 In 39384, paragraph 20 in section 3, the scope and content of the

3 agreement. At the ICC the concept is that there is an agreement like a

4 contract between counsel and client in relation to conduct of cases.

5 They've put it on very much in a formal basis. And that's what they're

6 referring to here.

7 Subparagraph 1: "The relationship of client and counsel is one of

8 candid exchange and trust, binding counsel to utmost good faith in dealing

9 with the client. In the discharge of that duty to the client, counsel

10 must always act in fairness, honour, candour and fidelity to the client."

11 And although we don't have any position with him, we trust we are

12 being faithful, as far as we can in relation to this matter, as we were in

13 relation to the appeal, to his interests in the way that we present them.

14 At 39373, we have from the Union Internationale des Avocats, the

15 International Charter of Legal Defence Rights, and Article 5, which is at

16 Registry page 39372, deals with: "Every person shall have free and

17 effective choice in selecting his lawyer," is Article 4. Article 5:

18 "The participation of the defending lawyer must be effective. This means

19 that he has the duty to apply adequate competence to this work."

20 Again, this code is very much based on the fiduciary duty. And in

21 39370 at Article 13: "Duties of lawyers arising out of the rights and

22 guarantees of legal representation.

23 The duties of the lawyer in regard to his client consist of advice

24 in (a); (b): "Taking such existing legal measures as are necessary to

25 protect him and his interests; (c) representing and assisting him before

Page 33273

1 the courts or administrative authorities ...

2 "In carrying out his tasks, the lawyer shall at all times act

3 with complete freedom, diligently and courageously, according to the law,

4 respecting his client's wishes and the ethics of his profession without

5 concerning himself with restrictions or pressures to which he might be

6 subjected by the authorities or the public."

7 At the International Bar Association documents set out as a result

8 of the IBA conference in New Delhi, 1982, are various regulations

9 governing judicial independence as well as lawyer independence.

10 If we went to 39365 in the section dealing with lawyers -- if I

11 can just correct that, because this actually arises at 39365 from the

12 Council of Europe. The previous page actually arises from materials I had

13 from the IBA when on their working party concerning the code for the ICC,

14 and that page is an extract of the previous page.

15 At 39365, from the Council of Europe recommendations: "Duties of

16 lawyers towards their client should include: (a) advising them of their

17 legal rights and obligations ..." In (c) "taking legal action to protect,

18 respect, and enforce the rights and interests of their clients; (d)

19 avoiding conflicts of interest; (e) not taking up more work than they can

20 reasonably manage."

21 At page 39363, basic principles on the role of lawyers, coming

22 from the United Nations conference in Cuba in 1990, is a general statement

23 of the standards. Excuse me. And it's paragraph 12, which is Registry

24 page 39361.

25 "Lawyers shall at all times maintain the honour and dignity of

Page 33274

1 their profession as essential agents of the administration of justice."

2 13 sets out duties of lawyers towards their clients, including advice,

3 assistance, "protecting the rights of their clients in promoting the cause

4 of justice, shall seek to uphold human rights and fundamental freedoms

5 recognised by national and international law, and shall at all times act

6 freely and diligently in accordance with the law and recognised standards

7 and ethics of the legal profession.

8 "Lawyers shall always loyally respect the interests of their

9 client."

10 We observe here that in line with all the previous international

11 documentation, running through this is respect for the client, respect for

12 his case, and actually representing him according to the ethics of the

13 profession, and loyally respecting the interests of the client.

14 We've also included the NOTO principles, which were the draft

15 principles on the independence of the legal profession. Article 17 of

16 that, which is at Registry page 39357, deals with the rights and duties of

17 lawyers relative to the independence of the profession.

18 "The duties of a lawyer towards his client include: Advising ...

19 taking legal action to protect him and his interests ... representing him

20 before courts, tribunals, or administrative authorities.

21 "In doing so, the lawyer shall at all times act diligently and

22 fearlessly within the law in accordance with the wishes of his client and

23 subject to the established standards and ethics of the legal profession."

24 And also within the bundle, at 39346, duties and rights of

25 lawyers. "Duties of a lawyer towards his client include: (a) advising

Page 33275

1 the client as to his legal rights and obligations, and as to the working

2 of the legal system ...; (b) assisting the client ... (c) representing him

3 before the courts ..."

4 At 83: "The lawyer in discharging his duty shall at all times act

5 freely, diligently and fearlessly in accordance with the wishes of his

6 client and subject to the established rules, standards, and ethics of his

7 profession without any inhibition or pressure from the authorities or the

8 public."

9 85: "No lawyer shall suffer or be threatened with penal, civil,

10 administrative, economic or other sanctions by reason of his having

11 advised or assisted any client for having represented any client's cause."

12 There were other documents from the International Bar Association

13 which weren't included in that bundle, and it's from the International Bar

14 Association International Code of Ethics of 1998, and Rule 6 states:

15 "Lawyers shall maintain due respect towards the Court, lawyers shall

16 without fear defend the interests of their clients and without regard to

17 any unpleasant consequences to themselves or to any other person."

18 In The Statement of General Principles for Ethics of Lawyers, also

19 an IBA document, at number 2: "Lawyers shall treat the interests of their

20 clients as paramount, subject always to their duties to the court and the

21 interests of justice to observe the law and to maintain ethical

22 standards."

23 At 4: "Lawyers shall not place themselves in a position in which

24 their client's interests conflict with those of themselves, their

25 partners, or another client."

Page 33276

1 And those additional matters arose from the International Bar

2 Association materials of which I had possession. There are copies here.

3 So what we say at this juncture is that there is an overwhelming

4 current here of how lawyers are to perform and behave, and that is that

5 they must follow the wishes of the client, be they assigned counsel or any

6 other form of counsel, because when they are assigned counsel, they're not

7 counsel of the Court, they are counsel to the individual accused and that

8 is where their bond and loyalty lies.

9 There may be different arrangements that can be established for

10 amicus curiae or a counsel of the Court to the Judges where this fiduciary

11 relationship that exists between the accused and legal representation is

12 not compromised, but the whole working and standards required of lawyers

13 in our position is that we follow those codes and we do not commit acts

14 that are in breach of the codes, because that is not the responsibility of

15 the Judges, that is our responsibility for which we could be made liable

16 to, in this instance, the Association of Defence Counsel within this

17 building. They have a disciplinary committee.

18 There was a question yesterday from Judge Bonomy about the ADC.

19 It was actually set up in consultation with the Judges of this building,

20 and within these ethics there is, in fact, a requirement from the United

21 Nations that within all organisations that counsel have an organised body

22 on their behalf operating within the system. So within a state or a court

23 like this, it is seen as important that Defence counsel have a collective

24 body that is able to represent their interests, because they have dealings

25 with the Registry or the executive and the Judges, and their positions

Page 33277

1 have to be considered and respected.

2 JUDGE BONOMY: It wasn't that I was questioning, Mr. Kay. It was

3 the way in which that representation was made or attempted to be made that

4 I questioned.

5 MR. KAY: I understand that the disciplinary committee of the ADC

6 have in fact made a statement. I don't have it in my possession. I

7 believe that is going to the Registrar on the issue, as they see their

8 route being in that particular direction, but their disciplinary committee

9 have reviewed the matter and have typed something that is being forwarded

10 to him on the issue, and it may be that the Judges would like to see that.

11 I'm also liable to my code back in England, the English Bar, where

12 matters arise that are not covered by the ICTY Code of Conduct, which is

13 why I refer you to the paragraphs of particular concern where a client has

14 impugned the character of the counsel, where instructions have been

15 withdrawn, and where there is conflict.

16 We took advice from the Bar -- from the general counsel of the Bar

17 in the early days of this matter, who said that an assignment can take

18 place, that you attempt to work within that assignment, but there may come

19 a stage, which was the words of the QC who had been charged with this

20 particular issue for whom the professional standards committee had given

21 the task to consider the matter, his words were: "There come a stage when

22 you are simply unable to further operate and things have gone too far

23 either in how you operate or your relationship with the accused that

24 require you to take that fateful step of having to withdraw."

25 In our view, because we've referred this whole issue back to the

Page 33278

1 Bar Council Professional Conduct Committee in London and sought an

2 advisory opinion, that is a matter which is of importance to us but should

3 also be of importance to the Court.

4 Judge Kwon. I'm sorry I went on there.

5 JUDGE KWON: No, no problem. Mr. Kay, if you could make an

6 observation on what the accused had said in the appeals hearing on 21st of

7 October. I can't find the Registry number. It appears from the LiveNote

8 page from line 24 of page 41. It is the -- he answered to the question

9 from the President Meron what the best solution was.

10 MR. KAY: I remember. Yes.

11 JUDGE KWON: I quote. He said: "What is the best solution?"

12 "The best and the only solution in my opinion is for you to give me back

13 my rights." And then he referred to the so-called stand-by counsel. I

14 quote again: "Your stand-by counsel is of no interest to me whatsoever.

15 Mr. Kay is to be an amicus curiae. He, as well as his colleague, upon

16 leave of the Trial Chamber, put questions to witnesses when he deemed fit.

17 As far as I'm concerned, I have no objection to such practice at all. As

18 far as I'm concerned, in that capacity he can continue if you think that

19 necessary. He can continue to put questions to witnesses or perform any

20 other tasks."

21 MR. KAY: End of the professional relationship but in a different

22 position. And that goes to the core of it. In fact, the accused's

23 response there has been pragmatic again, if we may observe that; that

24 before there was no relationship and it didn't interfere where he stood in

25 relation to the proceedings. It was entirely different. We did not have

Page 33279

1 a mandate from him, and we never said we did have a mandate from him.

2 That was deliberately never part of the assignment.

3 The trouble is now -- and that can work but it is that we have

4 gone too far since -- since then, in our submission, for us in that role.

5 We've moved a long way from there to here, and as a result of what has

6 arisen and the conflict between us, we feel it's unprofessional, having

7 been subject to the criticism, for us to continue acting in any way in

8 relation to his interests. We would be very concerned about setting

9 ourselves up in such a capacity. A new amicus would be able to handle the

10 issues in the same way as the old amicus did and not have the particular

11 stigma, if you like, that we feel from our position.

12 The quotes I read earlier, Your Honour Judge Kwon was referring to

13 the amicus situation, and on the -- I think it was the 3rd of September

14 transcript we've looked at, and that particular role and whether that

15 perhaps could be the means of progress and developing the situation. And

16 that would have worked, but for us now, we've gone so far to find us --

17 ourselves in this position, subject to criticism, our professionalism

18 impugned, that we don't find it right and honest to hold ourselves out in

19 view of the state of the relations between us and him. And it would be

20 something that we would -- that we find an anathema to the proceedings.

21 We feel quite clearly, and it's our duty to say so, that we would follow

22 the Code of Conduct. That's what should happen. But we do not feel that

23 the state of relations between us and him can go back unless he hired us

24 as counsel, unless he took us on. That's a different matter. That is a

25 way of restoring, as Your Honour Judge Kwon referred to the -- I think it

Page 33280

1 was yesterday you mentioned, Could it be restored? And I said you'll have

2 to ask him that. Of course, if he sought to hire my services, I would be

3 available, as I would. There would be no problem or issue with that,

4 because that would mean that he was giving me, validly, his position of

5 trust. But what we have been through in the last eight weeks, we feel

6 that it's too late to turn the clock back in relation to our position with

7 him.

8 It may be on this ethical issue that - we sought advisory

9 opinions, as the Court knows - that the Court consider appointing an

10 amicus on this issue for an amicus brief on the ethical issue because of

11 the scale of the issue, as His Honour Judge Robinson has rightfully

12 pointed out. We're aware of the scale of this issue and what it means

13 within the Tribunal. There are a large number of concerned Defence

14 counsel who have made themselves known to us over what they've called our

15 honesty in presenting this issue, and it's seen as being a distinct

16 problem that we would recommend, the Court and us could identify a

17 suitably eminent lawyer to provide an advisory amicus curiae brief on the

18 issue.

19 Those are our submissions on the matter. I don't know if I can

20 deal with any other issues.

21 JUDGE ROBINSON: No, Mr. Kay. Thank you very much.

22 Mr. Milosevic, I would understand if you were to see yourself in a

23 kind of splendid isolation from these issues and didn't wish to make any

24 submissions, but if you wish to make submissions, you may do so.

25 THE ACCUSED: [Interpretation] Well, with regard to all these

Page 33281

1 issues, I shall express myself very briefly. Namely, from the very

2 outset, as you know, I have held one and the same position. I have not

3 changed it, nor could I have confused anyone as to my position. It has

4 always been my position that I'm representing myself. And I believe that

5 this position of mine is in no way extravagant. On the contrary, it is

6 based on the minimum of my guaranteed rights, on cogent norms of

7 international law, imperative norms of jus cogens which are absolutely

8 unquestionable.

9 As for this specific case, it is abundantly clear that Mr. Kay

10 could not have had any doubts as to my position that I do not accept

11 counsel. And in spite of that fact, knowing about this very emphatic

12 position of mine, he, under pressure from you and contrary to his own code

13 of ethics, accepted that role despite my emphatic position. Therefore, it

14 is an issue of not only professional criticism but also criticism from the

15 point of view of ethics. That is professionally unacceptable.

16 Second, it is easier for me to quote from your order of 2nd

17 November where you quoted the Appeals Chamber. In paragraph 2 you say:

18 "At the very least, this regime must be based on the automatic assumption

19 that whenever he is physically able to do so, Milosevic will assume the

20 leading role in the presentation of his case, questioning of his

21 witnesses, et cetera, making all the legal submissions that may be

22 necessary, presenting closing argument, et cetera."

23 As to the issue under discussion, it is obvious that you are

24 trying to define a continued role of an assigned counsel, and I continue

25 to oppose it. And you want this stand-by counsel to act when, God forbid,

Page 33282

1 I fall ill and am unable to perform my duties representing myself. That

2 is a way of pressuring me never to be ill.

3 And second, if you wish to entrust somebody else with the

4 presentation of my case in those cases when I'm ill, I wish to remind you

5 of the judgements of the European Court for Human Rights in Colozza versus

6 Italy, from 1985, which reads: "The court reiterates that the right to an

7 accused [In English] to participate in person in the trial is a

8 fundamental element of a fair trial."

9 [Interpretation] Further on, the judgement says in paragraph 27:

10 "[In English] Although this is not expressly mentioned in paragraph 1 of

11 Article 6, the object and purpose of the article taken as a whole show

12 that a person 'charged with a criminal offence' is entitled to take part

13 in the hearing. Moreover, subparagraph (c), (d), and (e) of paragraph 3

14 guarantee to 'everyone charged with a criminal offence' the right 'to

15 defend himself in person,' 'to examine or have examined witnesses...' and

16 it is difficult to see -- and it is difficult to see how he could exercise

17 these rights without being present."

18 [Interpretation] Furthermore, the judgement says: "[In English]

19 An accused may waive the exercise of his right, but to do so his decision

20 not to appear or not to defend himself must be established in an

21 unequivocable manner."

22 [Interpretation] Thus I wish to say once again here for the record

23 and for the information of the public I do not intend to renounce this

24 right that I have. And in the event you take the decision that somebody

25 else should represent me should I fall ill, you would again be violating

Page 33283

1 the imperative norms that you are not authorised to violate.

2 I have understood that you, and especially Mr. Bonomy, have

3 opinions as to somebody else being entitled to judge what my best

4 interests are. I believe it is my exclusive right to decide on these

5 interests.

6 I think, Mr. Bonomy, you mentioned yesterday, as did Mr. Nice,

7 that your rules do not cover the eventuality of assigning counsel to a

8 reluctant client, to a reluctant accused. I don't think this is

9 accidental. They do not cover that rule because that would be contrary to

10 all standards and norms of international law. Invoking the practice of

11 some extreme cases of sexual offences where this right is taken away with

12 a view to protecting the victim is completely inappropriate and completely

13 irrelevant to what is going on here. I therefore believe that you should

14 keep this in mind.

15 Also, Mr. Robinson, you mentioned that the accused, and then you

16 quoted one of the Rules, has no right to destroy the trust between himself

17 and his counsel. I should like to ask you, how can you destroy something

18 that does not exist in the first place?

19 I refused counsel, invoking the minimum of rights guaranteed to

20 me, and therefore, there could have been no trust between me and that

21 counsel since we had never had any contact. And I don't think this

22 observation can stand under any circumstances.

23 Therefore, in view of the decision that has been taken, I intend

24 to call witnesses, question them, decide on their order, examine them. I

25 believe I am able to do that. I expect you to refrain from exerting any

Page 33284

1 pressure on me outside what is normal and realistic, and I expect that I

2 will be able to function quite normally in that situation. And referring

3 to the quotation I made from the judgement of the European Court, I see

4 absolutely no place for any assigned counsel.

5 And since you have given me this opportunity, I would like to say

6 one more thing. Since it has been said here to make fundamental strategic

7 decisions in presenting the case, et cetera, you quoted here the Appeals

8 Chamber decision, I wish to tell you that on the 20th of February this

9 year, so many months ago, I filed with the liaison officer the list of

10 witnesses I insist for you to call. I titled it The List of Hostile

11 Witnesses because I believe those witnesses to be hostile but I still wish

12 to examine them here. And in my conviction, I have every right to do that

13 and that right is very well grounded.

14 Since it's been a very long time since the 20th of February, and

15 there has been a lot of communication since --

16 JUDGE ROBINSON: I have stopped you because that is not germane to

17 the issue that we're discussing now, which is the application made by

18 Mr. Kay. So confine your remarks to that issue.

19 THE ACCUSED: [Interpretation] Very well. Then I shall require

20 that you give me an opportunity to make this request before we finish

21 today's hearing, because it concerns preparation, procedural issues, and

22 issues concerning my Defence.

23 JUDGE ROBINSON: Yes, Judge Bonomy.

24 JUDGE BONOMY: Mr. Milosevic, could you possibly clarify one thing

25 for me. Are you saying that at no stage in the trial there has been any

Page 33285

1 sort of working relationship between you and Mr. Kay?

2 THE ACCUSED: [Interpretation] Of course there hasn't. I never met

3 with Mr. Kay, unless you consider being in this same courtroom a meeting.

4 But it's true when Mr. Kay says that sometimes during my cross-examination

5 I sometimes refer to well-put questions by Mr. Kay or by Mr. Tapuskovic,

6 who took turns examining witnesses after my cross-examination under your

7 decision and with your leave. But I never gave any instructions to

8 Mr. Kay, or to Mr. Tapuskovic, for that matter -- or, rather, let me

9 correct myself. I did meet with Mr. Tapuskovic after he left his position

10 and, as a courteous man, before departing, he came to see me in prison and

11 to say good-bye. That is the only time I met with an amicus curiae. But

12 that was a courtesy call. He had completed his term of office and came to

13 see me before leaving for Belgrade. Otherwise, I never met with Mr. Kay

14 or with Mr. Tapuskovic.

15 JUDGE BONOMY: Thank you.

16 JUDGE KWON: But your associates did meet, did have communications

17 with Mr. Kay, did they not?

18 THE ACCUSED: [Interpretation] Everyone who is part of this process

19 meets in that Defence room at one time or another, consult, talk. I do

20 not wish to get into that. None of my associates ever had any

21 instructions to meet with Mr. Kay, not even when Mr. Kay says -- and I

22 didn't think it would be necessary to comment or correct him when he said

23 that, but there was a part of his discussion when he said that he had

24 received a list of witnesses that I had provided. He got it from the

25 liaison officer, not from my associates. My associates and I communicated

Page 33286

1 with the liaison officer appointed by the Registry as a neutral organ.

2 And I have told you here, when you asked me if I had any objections or

3 something to that effect, I don't remember the exact question, I said that

4 I absolutely don't mind Mr. Kay using something -- some material that I

5 had provided to the liaison officer.

6 JUDGE ROBINSON: Thank you, Mr. Milosevic.

7 Mr. Nice.

8 MR. NICE: Certainly this application has to be set in a broader

9 context, because we have to plan, I suppose, for the future of the trial

10 generally. That may mean taking stock of where we genuinely are.

11 Before I come to that and with the recent observations of the

12 accused in mind, perhaps a couple of things before I forget them.

13 I rather agree with him about one thing, but he expresses

14 differently from the way I would express it. He says you can't destroy

15 something that never existed. That's the nature of his relationship with

16 Mr. Kay. Mr. Kay went on for a long time using the word "client." I

17 checked the easiest on-line dictionary I could find, and a client is a

18 person who seeks the advice of a lawyer, though the accused has never

19 sought the advice of Mr. Kay, so to this extent Mr. Kay and the accused

20 are ad idem. There was never the relationship of client, and that is not

21 what we're investigating in investigating Mr. Kay's right of successful

22 application for exercise of discretion to be withdrawn from this case.

23 Hearing the accused make his representations and bearing in mind

24 just how far this Court has gone to assist him, others would say to

25 indulge him, we do come to the question of who runs this Court, and I

Page 33287

1 suspect that resolution of this issue involving Mr. Kay will have that in

2 mind. It may just be helpful to remember how far we've gone.

3 Three amicus were assigned to help him, to make arguments when he

4 disdained to do so. A pro se legal officer was provided, and he rather

5 explains the position that she, the admirable Ms. Anoya, has filled,

6 because again he disdains to cooperate with the Court, disdains to make

7 formal applications, declines to communicate in the way of a reasonable

8 human being. He's given an avenue to obtain that which he wishes which

9 enables him to maintain his spurious independence of this process. He is

10 engaged in this process, but he declines to do so in a proper way.

11 Now, it may be, looking back and looking forward, that we've

12 reached the time in these proceedings where as well as indulging the

13 accused to the extent that is appropriate, or at least accommodating him,

14 the time has come for the Court to be properly concerned about its

15 authority, its apparent authority, maintaining its authority and dignity

16 in light of and despite everything that is done by the accused to

17 interfere with it.

18 And before I turn to the substance of my arguments with those

19 general observations in mind, can we look to the future under the regime

20 imposed by the Appeals Chamber and on the basis that Mr. Kay is not

21 released from his present duties.

22 Your Honour Judge Bonomy raised one possible factual situation.

23 Can I suggest two others? The most likely and the one to which the

24 accused himself referred is that there comes a time when, because he has

25 taken on far too much work, an unreasonable amount of work to defend

Page 33288

1 himself in a case of this scale given his health condition, he falls ill.

2 Until that stage, he has produced witnesses, has withdrawn the signal to

3 witnesses that witnesses should not attend, so there's been a flow of

4 witnesses.

5 The Chamber is lulled into thinking that --

6 THE ACCUSED: [Interpretation] I have an objection.

7 JUDGE ROBINSON: Yes. I'm sorry. Mr. Nice, I'm not sure that we

8 have any evidence that the accused has given a signal to witnesses not to

9 attend, and I suspect that is what he's objecting to. So you might

10 consider withdrawing that comment.

11 MR. NICE: Your Honour, well, I've referred to it on previous

12 occasions, and I had in mind the question that was asked of the accused by

13 His Honour Judge Bonomy in direct terms on an earlier hearing whether he

14 wanted the witnesses to attend. He declined to gave a straight yes to a

15 simple question and gave a coded answer that may easily have been relied

16 upon by witnesses, and I made this quite clear in the Appeals Chamber, as

17 guiding them that they should engage in the obstructive course of conduct

18 that they collectively then pursued. So I don't withdraw that, and even

19 if the particular positive concept engendered by the word "signal" may not

20 reflect the more subtle and manipulative way the accused dealt with the

21 problem, there's nothing to say that he wouldn't take a more positive line

22 in the future.

23 And so one can envisage this circumstance: The trial proceeds,

24 because the accused has got his own way, for a period of time

25 satisfactorily, or apparently satisfactorily, and Mr. Kay doing whatever

Page 33289

1 is left for him to do. There then comes the need for Mr. Kay to fulfil a

2 larger role. The accused, at the drop of a hat, because he has no

3 interest in these proceedings other than the way they serve his interest,

4 will stop the witnesses coming and we'll be back exactly where we are.

5 Another alternative, and one that I've referred to before and have

6 no problem with repeating, the accused has said to you - I haven't a

7 complete note of what it was - but that he's going to call witnesses

8 himself, and he's going to examine them himself. We have yet to see him

9 do that. We have yet to see whether his approach to calling witnesses

10 will satisfy the proper requirements of this Court that its dignity should

11 be preserved. The Court will have in mind that I've asked the question:

12 How can a court allow an accused representing himself to call or seek to

13 call witnesses, in his terminology it may be, to tell this "illegal" Court

14 what they know? So supposing his approach is unacceptable to the Court.

15 He would then immediately interfere with the process in some way as to

16 make it impossible for Mr. Kay to take over.

17 And a third possibility arising from the second, and indeed

18 stimulated by -- my being stimulated to think of it by the very last

19 points that the accused made. What are we going to do about the witnesses

20 who he wants to have called but thinks that you should call or arrange to

21 call for him to be cross-examined? Is he going to demand some special

22 regime? Will he then ask for Mr. Kay to be involved to get perhaps

23 witnesses who would decline to come for the accused personally but might

24 come if they were going to be approached in a more polite way by retained

25 counsel?

Page 33290

1 These are all a number of problems that are going to arise in the

2 future, or may arise, and we should have them in mind now in deciding

3 what's the best way, in our respectful submission, to move forward.

4 Our conclusions will be that there is absolutely no ground in law

5 whereby the Court is obliged to grant Mr. Kay's application. The

6 application may be refused. There may be practical, pragmatic reasons for

7 taking a different course. That will be entirely for the Chamber. I may

8 have something to say about them a little later.

9 The letter Mr. Kay sent was unfortunate both as to its content and

10 more particularly as to its date. On examination, it is absolutely clear

11 that there is nothing in that letter that was not available before the

12 Appeals Chamber's decision -- I beg your pardon, before the Appeals

13 Chamber's hearing. We can now only contemplate how things may or may not

14 have been different had that letter been sent in advance of the hearing or

15 delayed until after the delivery of the decision.

16 What is clear, as raised as a possibility by His Honour Judge

17 Bonomy, is that the only additional factor beyond what was already

18 available to Mr. Kay and Ms. Higgins before the Appeals Chamber hearing is

19 the public criticism and other complaints made against them. Their

20 professionalism has been impugned, he says. He does not want to stand

21 here if the accused thinks he is unprofessional.

22 So what? Criticism - and I've been sitting here beside the

23 Prosecutor for most of this hearing - criticism, public criticism goes

24 with the jobs we do. She, and even I, and the Judges, including the late

25 Judge May, have all been subject to criticism. That doesn't stop us doing

Page 33291

1 our work.

2 As to complaints, I reminded myself, I'd almost forgotten about

3 it, that the Prosecutor and I and various other members of the team were

4 once the subject of charges to Serbia alleging we were trying to do damage

5 to or possibly kill, I can't remember, the accused. It didn't worry us,

6 didn't stop us, because we're working within this legal framework and we

7 identify our duties and we respond to those.

8 Cases like this are not opportunities to have favourable

9 publicity. Indeed, one should probably simply forget all about publicity

10 for it doesn't do you any good one way or another.

11 And on examination, it seems to us, if we may respectfully so say,

12 that Mr. Kay and Ms. Higgins are attempting now to undo a contract into

13 which they entered fully aware of all the potential problems they would

14 face for, and I don't think I need go to chapter and verse on this very

15 much, the original order of the Trial Chamber, all the filings of the

16 Prosecution, the response of the then-amici and their model proposal, make

17 it absolutely plain that complete non-cooperation of the accused was what

18 had to be dealt with in the assignment of counsel. And it was with that

19 knowledge that they entered into the agreement with the Registrar that

20 they did, and unless I see a document going to show the contrary, it was

21 in no sense a contingent contract that said if and providing only that the

22 accused cooperates, we will do this, that, or the other thing.

23 And it is a contract that they cannot now undo in the sense of

24 restoring the parties to the position they were formerly in, and for at

25 least three reasons. First, because they have made publicly damning

Page 33292

1 assertions about the ability of any counsel to appear in the role they

2 voluntarily occupy, thus diminishing or extinguishing the pool of counsel

3 who would otherwise have been prepared to accept the charge they

4 undertook.

5 Second, they have successfully appealed from the original position

6 determined by this Chamber in favour of the position that they wanted.

7 And third, they've called witnesses.

8 One is, I'm afraid, reminded -- I beg your pardon. Let me go back

9 one.

10 Things would have been different or could have been different had

11 the application to withdraw been done quietly and privately. Had they

12 said, "We're very sorry, but in the circumstances, we just don't feel

13 we're up to this job. We can't do it." That didn't happen. And one is

14 inevitably reminded of Aesop's fabled dog in the manger.

15 The order of the Court, and we've looked at it but it's probably

16 worth reminding ourselves of it, made it absolutely plain that assigned

17 counsel were not entering into the relationship of client and lawyer with

18 the accused. On this I agree with the accused. They were being required

19 to represent him independently of what he might want, providing only, of

20 course, that they did everything they could, and I'm sure they did, to

21 obtain from him by communication instructions of one kind -- one thing or

22 another.

23 Let's just remind ourselves of the order. "To represent the

24 accused by preparing and examining those witnesses Court assigned counsel

25 deem it appropriate to call; to make all submissions on fact and law that

Page 33293

1 they deem it appropriate to make; to seek from the Trial Chamber such

2 orders as they consider necessary to enable them to present the accused's

3 case properly, including the issuance of subpoenas; to discuss with the

4 accused the conduct of the case; to endeavour to obtain his instructions

5 thereon, and to take account views expressed by the accused while

6 retaining the right to determine what course to follow."

7 Mr. Kay has referred to the absence of consultation. Using the

8 word "consultation," the reality is that Mr. Kay has consulted. I'm sure

9 he has, because he's gone and he's tried to speak to the accused. And

10 it's the unilateral act of the accused in not consulting that has led to

11 the problem. I'm sure they have attempted to discuss with the accused the

12 conduct of the case. They have endeavoured to obtain his instructions and

13 to take account of his views.

14 The order goes on, "to act throughout in the best interests of the

15 accused." What does that mean? The best interests of the accused in a

16 forensic setting are the best interests of the accused judged from a

17 forensic point of view. They are not his best publicity interests. They

18 are not his best propaganda interests. And it is perfectly possible for

19 counsel, if they find themselves again in the driving seat because of the

20 ill health of this accused, to calculate what his best interests are

21 forensically. It may well be that in the conduct of his case the accused

22 hasn't been pursuing his forensic best interests, but Mr. Kay and

23 Ms. Higgins would have no trouble in identifying.

24 Indeed, it's worth reminding ourselves that in his long speeches

25 to this Tribunal - I'll just find the passage - the accused has actually,

Page 33294

1 somewhat surprisingly, been quite careful to articulate what his forensic

2 or legal Defence is. I'll see if I can find the relevant piece of paper.

3 For within the passages of rhetoric that have nothing to do with the real

4 subject matter of this case, one can find neatly encapsulated what his

5 Defence is.

6 And I'm reading from his latest speech, the one given at the

7 beginning of his Defence. So that, for example, he says this: "The Serb

8 side had three objectives that can be seen when the entire political

9 situation is analysed. The first one was to preserve the Yugoslav

10 Federation, and then if it is possible to obtain that objective, to attain

11 their own right to self-determination like the right enjoyed by other

12 peoples in Yugoslavia. So in the case that objective is impossible too,

13 then finding ways and means through negotiations to ensure an equitable

14 position for Serbs in Bosnia-Herzegovina."

15 Later on he said of Kosovo: "When speaking of Kosovo, there is

16 not a single shred of evidence that any crime was committed. Not only on

17 anyone's orders, but also with any kind of previous knowledge of the

18 generals in command. Not a single one of them had any knowledge."

19 Later on still, he goes on to explain at length his Defence that

20 crimes, if and when they were committed, were subject to sanction. And

21 there are other passages in his speeches which would constitute perfectly

22 adequate instructions to assigned counsel to know what to look for and

23 what to present if they found themselves back in the driving seat.

24 But, and I return to the order of this Court, item 2 of the order

25 said: "The accused may, with the leave of the Trial Chamber, continue to

Page 33295

1 participate actively in the conduct of his case, including, where

2 appropriate, examining witnesses following examination by Court assigned

3 counsel." That one phrase has been reversed, and then the accused has the

4 right to make a reasonable request to the Trial Chamber to consider

5 allowing him to appoint counsel.

6 That order, which of course existed before Mr. Kay and Ms. Higgins

7 agreed to take the role of counsel described as assigned, makes it clear

8 that in real and practical terms, they were the servants of the Court,

9 although their duty was to identify the best interests of the accused and

10 to represent them. And that is by no means a unique position for lawyers,

11 common in civil system jurisdictions, known now in common law systems in

12 particular with sexual offender crimes -- sexual offender cases.

13 I was asked, I think, in the Appeals Chamber, when we were still

14 contemplating the previous regime before the reversal of the order of

15 questioning, at a time when, for reasons that I've already touched on, all

16 witnesses were refusing to come, what would happen if there wasn't a

17 change? My answer, I can't take you immediately to the passage of the

18 transcript, was that Mr. Kay and Ms. Higgins would do their best. They

19 would call what witnesses they could, and if there were almost none or no

20 witnesses, this would plainly have been at the engineering or as a result

21 of the non-cooperation of the accused, and he would have only himself to

22 blame.

23 The position that Mr. Kay and Ms. Higgins now face if they are not

24 allowed to withdraw from this case is that there may come times when they

25 will be required to conduct the case in an active way. If at that stage

Page 33296

1 because some obstruction is placed by witnesses or others and in their

2 doing more than their best, they will do their best, and they will never

3 be capable of being criticised for that.

4 Criminal cases are complete, potentially, at the end of the

5 Prosecution case. There is no need to have Defence evidence if by

6 whatever means an accused either makes that impossible or chooses not to

7 have any.

8 The law. Blagojevic has already been summarised by His Honour

9 Judge Bonomy. In the Appeals Chamber, the paragraphs upon which we would

10 particularly rely include, at the foot of paragraph 27, we're dealing with

11 the factual circumstances of Blagojevic itself -- perhaps I should

12 actually read the whole of the paragraph although I'm conscious of the

13 time already taken. Paragraph 27:

14 "The Appeals Chamber rejects the argument of the Appellant that

15 the record showing the many hours counsel has spent with the Appellant at

16 the Detention Unit 'does not disclose anything about what was discussed'

17 or 'disclose whether Mr. Blagojevic was given any opportunity to really

18 cooperate with and influence Mr. Karnavas about how to proceed.' The

19 Appellant had made no complaints, prior to his being notified that the

20 Registrar would not consent to a withdrawal of co-counsel, about the work

21 of his counsel, and the reliance by the Trial Chamber upon those records

22 as showing that the parties were working as a team on the Appellant's

23 Defence --"

24 THE INTERPRETER: Slow down, please, when reading. Please slow

25 down.

Page 33297

1 JUDGE KWON: Mr. Nice, you are being asked to slow down.

2 MR. NICE: I'm very sorry. I thought I'd slowed down but it's

3 difficult to get the speed right when reading. I'll put on the headphones

4 so that I can be shouted at more conveniently.

5 "The Appeals Chamber rejects the argument of the Appellant that

6 his 'subjective' views about his -- how his trial should proceed may

7 override the professional obligation of counsel to act in the best

8 interests of the Appellant. Counsel has an obligation to consult with the

9 Appellant, but he is not bound by the Appellant's view as to what are the

10 best means to achieve the objects of the Appellant's defence."

11 And if assigned counsel in this case find themselves back in the

12 driving seat, that principle of law from the Appeals Chamber of this Court

13 applies with full force.

14 Paragraph 31: "The Appeals Chamber rejects the assertion of the

15 Appellant that the Trial Chamber gave insufficient weight to the

16 allegation of the Appellant that he had had no contact with his Defence

17 team since..." a particular date. "The Trial Chamber considered the

18 circumstances surrounding the alleged breakdown in communication and found

19 that the breakdown was a result of the Appellant's refusal to communicate

20 with counsel and that counsel was still maintaining his professional

21 obligations to the Appellant. Indeed, the Appellant does not challenge

22 this finding. The Appeals Chamber agrees with the Trial Chamber's finding

23 that the breakdown in communication was the result of the actions of the

24 Appellant and that this action was undertaken by the Appellant 'solely to

25 use as a ground to have counsel replaced.' The Appeals Chamber further

Page 33298

1 agrees with the Trial Chamber that such an action as a form of protest is

2 impermissible."

3 May I return us from the very particular and distorted feel that

4 this trial sometimes has because of the extent to which this accused has

5 already been accommodated to the position we should have been in between

6 the order of the Trial Chamber and the decision of the Appeals Chamber.

7 We were in the position where an order made by the Trial Chamber, the

8 original order, was of effect and should have been respected by everyone,

9 including this accused. Therefore, he was if not under any binding legal

10 duty actively to cooperate with Mr. Kay, he was certainly under a duty to

11 this lawful Court not to obstruct him. The Court will decide from the

12 record whether, in fact, he did, and it may conclude that what he did,

13 leading to Mr. Kay and Ms. Higgins' current feelings of distress and

14 anxiety, was as impermissible and as carefully calculated as that which is

15 referred to in paragraph 31 of the Blagojevic Appeals Chamber decision.

16 I move on to paragraph 50: "The Appeals Chamber rejects the

17 assertion of the Appellant that the Trial Chamber erred in accepting the

18 submission of the Registrar 'that any lack of confidence or trust that

19 [the Appellant] may have had in his counsel could never be regarded as

20 more important than the harm done to his fair trial...'

21 "In the impugned decision, the Trial Chamber referred to this

22 submission made by the Registrar but did not base its decision upon it.

23 The decision of the Registrar to refuse the Appellant's request that new

24 counsel be assigned and the Trial Chamber's confirmation of that decision,

25 were based on the fact that neither found that there was any 'objective'

Page 33299

1 basis for the Appellant's request that he be assigned new counsel. As

2 there was no basis for the counsel to be withdrawn, an unnecessary

3 replacement of counsel would infringe upon the right of the Appellant to

4 be defended by counsel thoroughly familiar with the case against him and

5 who had already dedicated many hundreds of hours to his defence. The

6 Trial Chamber therefore held that the retention of the Appellant's

7 assigned counsel would not only protect his right to be tried fairly but

8 also his right to be tried expeditiously."

9 In this case, and unless the accused is entirely recovered or

10 unless the accused's health was not -- ill health was not what it seems,

11 it is almost inevitable that there will come periods of time, especially

12 if the accused seeks to prepare all the witnesses himself, when further

13 disruption of a scale requiring the employment of assigned counsel will

14 arise. Everything that was said in that paragraph, paragraph 50 of

15 Blagojevic, which is matters of principle not related to that fact, would

16 apply with full force here.

17 And finally from Blagojevic, paragraph -- well, the end of

18 paragraph 51 but on the following page, page 24, their endorsement of the

19 Trial Chamber's observation in quotation marks -- this is the Trial

20 Chamber speaking: "'An accused does not have the right unilaterally to

21 destroy the trust between himself and his counsel. Similarly, an accused

22 does not have the right to claim a breakdown in communication through

23 unilateral actions, included refusals to meet with or receive documents

24 from his counsel, in the hope that such actions will result in the

25 withdrawal of his counsel by the Registrar.'"

Page 33300

1 And one can see various parallels between the facts set out there

2 and the facts of this case.

3 JUDGE ROBINSON: Mr. Nice, we're coming to the time for the

4 adjournment.

5 MR. NICE: On the law I shall take you very briefly to one passage

6 in -- in Barayagwiza, and then I shall be done with the law but I have

7 some further observations to make of a practical nature.

8 JUDGE ROBINSON: Also, would you attend to the submissions made on

9 the codes, the submissions that --

10 MR. NICE: I shall certainly deal with that.

11 JUDGE ROBINSON: The submissions on the inconsistency with the

12 codes.

13 MR. NICE: I will deal with that.

14 JUDGE ROBINSON: We're adjourned for 20 minutes.

15 --- Recess taken at 12.24 p.m.

16 --- On resuming at 12.55 p.m.

17 JUDGE ROBINSON: Yes, Mr. Nice.

18 MR. NICE: Before I turn to the next case, there's one more

19 passage in Blagojevic that perhaps I ought to refer to. Reminding the

20 Court, given that my learned friend Mr. Kay says it's not relevant, that

21 Blagojevic was indeed itself an application for withdrawal of counsel

22 under Article 19 of the directive. So it's absolutely on point.

23 And it's paragraph 53 of the decision, which deals with the terms

24 for termination or request of withdrawal of representation. "Under

25 Article 9(B) of the Code of Professional Conduct," which it sets out,

Page 33301

1 saying that "such termination or withdrawal can be accomplished if,

2 without material adverse effects on the interests of the client or if,"

3 and then there are four subparagraphs. (i) we can disregard; (ii): "The

4 client insists on pursuing an objective that counsel considers repugnant

5 or imprudent; (iii) the client fails to substantially fulfil an obligation

6 to counsel regarding counsel's services and has been given reasonable

7 warning that counsel will terminate or request withdrawal of his

8 representation unless the obligation is fulfilled; or (iv) other good

9 cause for termination or withdrawal exist."

10 And at paragraph 54, the Appeals Chamber went on to hold this:

11 "In circumstances such as this where an Appellant unjustifiably resists

12 legal representation from assigned counsel, counsel's professional

13 obligations to continue to represent the accused remain."

14 Well, all the factual circumstances envisaged for the purposes of

15 this discussion, either from the Bench or from me, would leave assigned

16 counsel, if retained, in the position exactly summarised in paragraph 54,

17 because the appellant would effectively be unjustifiably resisting, as he

18 does, explicitly, legal representation, but that would not and does not

19 free assigned counsel from carrying on with his or her duties.

20 The Barayagwiza case from the ICTR, with which you will be

21 familiar, concerned an accused who refused to attend court, and the

22 question was whether that and his instructions to counsel justified their

23 withdrawing. And the answer, no, it didn't. And at paragraph 24 of the

24 judgement of the Trial Chamber, there's this matter succinctly expressed:

25 "In the present case, Mr. Barayagwiza is actually boycotting the United

Page 33302

1 Nations Tribunal. He has chosen both to be absent in the trial and to

2 give no instructions as to how his legal representation should proceed in

3 the trial or as to the specifics of his strategy. In such a situation,

4 his lawyers cannot simply abide by his 'instruction' not to defend him.

5 Such instructions, in the opinion of the Chamber, should rather be seen as

6 an attempt to obstruct judicial proceedings, and in such a situation it

7 cannot reasonably be argued that counsel is under an obligation to follow

8 them and that not to do so would constitute grounds for withdrawal."

9 And the applicability of that persuasive authority is all too

10 clear for the facts of this case, particularly given Mr. Kay's expressed

11 understanding of the scope of his duty now that the order of questioning

12 has been reversed. And I --

13 JUDGE ROBINSON: Before you continue, Barayagwiza that you just

14 quoted from was the Trial Chamber's --

15 MR. NICE: Yes, it was.

16 JUDGE ROBINSON: It went to the Appeals Chamber, didn't it?

17 MR. NICE: I think so, yes.

18 JUDGE ROBINSON: I just wonder whether that part of it was

19 affirmed by the Appeals Chamber.

20 MR. NICE: We'll check. We'll try and check.

21 But I'm particularly struck by my learned friend Mr. Kay's

22 understanding of the scope of his responsibilities as assigned counsel

23 given the reversal of the order of questioning witnesses, for he was

24 express in his explanation that he would only advance a question if

25 instructed to do so. Well -- or in the absence of contrary instructions.

Page 33303

1 I see that my summary may not be perceived as specifically

2 accurate, but certainly it was that he did not regard himself as having

3 free rein to exercise his own judgement and that his first port of call

4 would be the instructions of the accused. And I hope that perhaps

5 satisfies His Honour Judge Bonomy's concern that I hadn't correctly

6 reflected what Mr. Kay had said.

7 MR. KAY: Just on the matter rising, Barayagwiza didn't go to the

8 Appeals Chamber, and the issue was whether, before the Trial Chamber, he'd

9 given sufficiently clear instructions for his counsel to withdraw. He

10 subsequently did. They withdrew. A new assigned counsel came in, and he

11 didn't appeal his position. We have someone on our -- Ms. Higgins was in

12 the related case of these defendants, the media trial at the ICTR.

13 JUDGE ROBINSON: Thank you, Mr. Kay.

14 MR. NICE: I'm grateful for being reminded of that. This

15 particular -- this particular part of the trial and the ruling to which it

16 relates was before the time when there had been explicit instructions

17 given by the accused for the withdrawal of his counsel.

18 Now, Your Honours, we were given that bundle of codes of conduct

19 only a couple of days ago, and our ability to explore them and all

20 associated issues --

21 JUDGE BONOMY: Just before you go on to that, Mr. Nice, there's

22 really nothing unreasonable about the response that Mr. Kay gave that the

23 first port of call would be the accused, and he gave it in the context

24 that he would advise him of the view he had formed about his failure and

25 give him an opportunity to give instructions. That's a perfectly

Page 33304

1 reasonable, and is indeed consistent, absolutely consistent with the terms

2 of the modalities order.

3 MR. NICE: Absolutely right that he should go there as a first

4 port of call. But if, as is pretty obvious if not completely clear from

5 everything that the accused has explained, that he would be given no

6 instructions, then he has to exercise his own judgement, or alternatively,

7 he would not be fulfilling the function required of him. And there's been

8 nothing that the accused has said, one way or another, to suggest that

9 when he falls ill or is otherwise by reason of some rule of the Court

10 unable to conduct the case personally that he will then instruct Mr. Kay

11 or anybody else.

12 When we look at the Codes of Conduct -- I say we. We haven't had

13 a chance to go into them exhaustively. But in any event, they can

14 probably be dealt with satisfactorily in fairly general terms.

15 The concerns that Mr. Kay expresses are that there is a conflict

16 of interest and that there's a breakdown of communication and that he has

17 no instructions. The first point is that the codes, whether of this court

18 or of the Bar Council of England and Wales or of the appropriate body in

19 Scotland do not cover this circumstance, as His Honour Judge Bonomy, I

20 think, made clear.

21 The second point is that conflict of interest is not really what

22 we're concerned with here at all. Conflict of interest is usually

23 independent of the person you're representing, and it's where your duties

24 to the person you are representing are in conflict with some other

25 interest of your own. And so on analysis, it comes down to concern that

Page 33305

1 there's a breakdown in relationships with somebody who Mr. Kay described

2 as his client that troubles him and that he has no instructions, but as

3 we've already seen in my earlier observations and as the accused himself

4 confirms, there is no relationship of client and lawyer here, therefore,

5 the notion of "breakdown," as the accused himself said, is irrelevant.

6 Likewise, there's no reason to expect instructions coming from the accused

7 and the order of the Trial Chamber was fashioned in the expectation that

8 that was either probable or very probable, or I suppose certain.

9 So that the codes really do not apply unless there can be

10 extracted from them some more general overarching principle in breach of

11 which Mr. Kay and Ms. Higgins find themselves by virtue of accepting the

12 role of assigned counsel and as a result of something that has happened

13 since. And the answer to that is that nothing that has happened since has

14 been identified in clear terms and something that has placed them in

15 breach of some overarching principle and indeed the overarching principles

16 have not really been identified in a way that bites on this case.

17 Within the bundle of authorities it may be worth looking at number

18 4 very briefly, the Code of Conduct for Lawyers of the European Union.

19 I'm afraid I don't have the registry page numbers, but I hope this isn't a

20 problem. It's page 5 at the foot, the preamble, which sets out that: "A

21 lawyer's function lays on him a variety of legal and moral obligations

22 (sometimes appearing to be in conflict with each other) towards: The

23 client; the courts and other authorities before whom the lawyer pleads his

24 client's cause or acts on his behalf --" and then skipping the next bullet

25 point, "the public for whom the existence of a free and independent

Page 33306

1 profession, bound together by respect for rules made by the profession

2 itself, is an essential means of safeguarding human rights in face of the

3 power of the state and other interests in society." So that that is a

4 somewhat broad function.

5 We go to page 8, the numbering at the foot, 2.4: "Respect for

6 Rules of Other Bars and Law Societies.

7 "Under the laws of the European Union and the European Economic

8 Area a lawyer from another Member State may be bound to comply with the

9 rules of the Bar or Law Society of the Host Member State. Lawyers have a

10 duty to inform themselves as to the rules which will affect them in the

11 performance of any particular activity."

12 Now, that's worth having in mind that all that has been relied on

13 today was known by -- as to its potential, was known by Mr. Kay before he

14 ever undertook this assignment, and therefore adressing themselves to the

15 relevant codes of conduct to which they have referred today, they ought to

16 have been in a position there and then to take the decision that they

17 could not act and thus to have freed the Chamber to make alternative

18 arrangements. And it is, it may be, the severe restrictions on the

19 Chamber's freedom of manoeuvre today that will be one of the most powerful

20 reasons for retaining Mr. Kay and Ms. Higgins if they decide that that is

21 the course to take.

22 At page 9, 2.7 --

23 JUDGE ROBINSON: Mr. Nice, that pragmatism by itself would not be

24 a sufficient basis to retain Mr. Kay, would it? The fact that the Chamber

25 has -- may have little room within which to manoeuvre.

Page 33307

1 MR. NICE: I'm not sure that pragmatism is necessarily the only

2 way to describe it, nor am I sure that it's irrelevant. The onfolding

3 history of this case is to be set aside, beside the duties of the Chamber

4 to provide a fair and public trial for the accused, which we all accept is

5 a prime responsibility. The second interest to which I've referred today,

6 the authority and dignity of the Court, and as part of the first,

7 sometimes expressed separately, sometimes as part of the first, is the

8 need to present or to conclude the trial in a timely way. If the position

9 is that, contrary to their expressed preferences or desires, these

10 assigned counsel can be required to remain in the case whereas any other

11 assigned counsel, if one or more were decided to be essential, there would

12 be consequences for the time the case would take, and that practical and

13 real consideration could affect the Court's decision. So to that extent I

14 differ from Your Honour's observation.

15 JUDGE ROBINSON: Thank you.

16 MR. NICE: And we may find, if I can find the relevant part of

17 the relevant code, that one these codes, or one of the relevant codes to

18 which we may be referring, requires counsel to act immediately on

19 recognising a problem and not to delay it, but I'll come to that if I can

20 dig it out.

21 I'm told by Ms. Graham that the page numberings I've been giving

22 you for this are wrong. Can I simply take you to paragraph 2.7 of this

23 registry page 39043, as follows: "The Client's Interest. Subject to due

24 observance of all rules of law and professional conduct, a lawyer must

25 always act in the best interests of his client and must put those

Page 33308

1 interests before his own interests or those of fellow members of the legal

2 profession."

3 For the reasons already advanced, there is no difficulty in

4 Mr. Kay advancing the best interests of the person described as a client

5 but who in truth never has been.

6 Number 3 on the same page, "Relations With Clients. Acceptance

7 and Termination of Instructions. A lawyer shall not handle a case for a

8 party except on his instructions. He may, however, act in a case in which

9 he has been instructed by another lawyer who himself acts for the party or

10 where the case has been assigned to him by a competent body."

11 At first sight, that would appear to encompass the position of

12 civil system jurisdictions where assignment of counsel is appropriate. It

13 may be, in fact, it's in this very set of rules that we come to the point

14 about immediate withdrawal. At the foot of this page, 3.2, conflict of

15 interest -- no, I don't think -- I don't think that really helps us very

16 much particularly.

17 Your Honour, I'm advised this morning by those familiar with the

18 system in the former Yugoslavia and in Bosnia-Herzegovina that the laws

19 regulating the lawyers' profession do not mention cooperation --

20 non-cooperation of the accused as a valid reason to withdraw when they are

21 assigned. And as one of Your Honours mentioned at the beginning of this

22 hearing today or yesterday, assignment in the case -- in any case of the

23 kind being dealt with here would happen automatically.

24 I'm further advised that it is in the FRY law that any conflict of

25 interest that requires Defence counsel to withdraw are stipulated in the

Page 33309

1 law, and the accused is not mentioned under the heading of "Conflict of

2 Interest."

3 I'm also told, and I think I mentioned this in the earlier hearing

4 on this very topic but maybe it was in the Appeals Chamber - I think it

5 was in front of this Chamber - that non-cooperation in the former

6 Yugoslavia doesn't happen. It's a different culture. And with the civil

7 system and the imposition of counsel, non-cooperation doesn't happen in

8 practice, thus there is no need to have it reflected in their codes of

9 conduct.

10 We have been able to investigate some parts of the German code as

11 one of the civil codes which may be of value, but I don't have the

12 documents immediately to hand.

13 In Germany, as I understand it and have been advised, an accused

14 has no right to a certain mandatory counsel when one is imposed. And the

15 presiding Judge of a German court will only replace an assigned or imposed

16 counsel where there are concrete facts demonstrating the breakdown of a

17 trustful relationship and where the orderly and expeditious administration

18 of justice is not harmed by such a step.

19 As to the other codes we looked at, they are all effectively

20 premised on the consensual relationship of client and lawyer, and unless

21 I've missed one to which I should pay particular attention, therefore are

22 not appropriate to the facts of this case.

23 And I repeat, had they been appropriate, should and would have

24 driven Mr. Kay and Ms. Higgins to decline to take on this brief when they

25 were asked so to do.

Page 33310

1 A few more points in order to finish comparatively soon. The

2 accused's position in law under the effective order of the Appeals

3 Chamber. There was a discussion yesterday, I think stimulated by His

4 Honour Judge Robinson, premised on the accused now being allowed to

5 prepare all his witnesses. In fact, the order does not expressly say that

6 on analysis. It doesn't cover the preparation of witnesses.

7 I don't know if the Court would like to look at that before moving

8 on. It can be found at the end of the judgement under the disposition,

9 pages 15 and 16. And it says in paragraph 19 of the decision, line 5:

10 "At a minimum, this regime must be rooted in the default presumption

11 that, when he is physically capable of doing so, Milosevic will take the

12 lead in presenting his case - choosing which witnesses to present,

13 questioning those witnesses before Assigned Counsel has an opportunity to

14 do so, arguing any proper motions he desires to present to the Court,

15 giving a closing statement when the Defence rests, and making the basic

16 strategic decisions about the presentation of his Defence. But this

17 presumption is just that: a presumption. Under the current circumstances

18 where Milosevic is sufficiently well to present a vigorous, two-day

19 opening statement, it was an abuse of discretion to curtail his

20 participation in the trial so dramatically on the grounds of poor health.

21 The Appeals Chamber can hardly anticipate, however, the myriad

22 health-related difficulties that may arise in the future, or use this

23 occasion to calibrate an appropriate set of responses to every possible

24 eventuality. It is therefore left to the wise discretion of the Trial

25 Chamber to steer a careful course between allowing Milosevic to exercise

Page 33311

1 his fundamental right of self-representation and safeguarding the

2 Tribunal's basic interest in a reasonably expeditious resolution of the

3 cases before it."

4 I don't think I need read beyond that save to say that it repeated

5 at paragraph 21 that the Trial Chamber may grant orders to enhance the

6 proceedings as and where necessary.

7 It may be that the Appeals Chamber did not deal with the question

8 of preparation of witnesses because of some of the things that the accused

9 himself said to the Appeals Chamber about what he understood to be his

10 entitlements, and that's why I agree, we must look at this issue in a

11 broader context, as both Mr. Kay and the accused, by implication, are

12 saying. For the accused was very carefully reserving his position to

13 drive the Chamber to work him no more than three days a week in all.

14 I'm afraid I don't have -- I have the page numbering of the

15 transcript, it doesn't have the full page numbers. It's page 27 of the

16 transcript. No, not page 27. It's a later passage.

17 Page 40 of the transcript as I have it, he said this: "I warned

18 you, Mr. Meron, the last time that we had a discussion here and when we

19 were talking about me being granted three months for preparation compared

20 to several years that the other side had, I drew your attention

21 specifically to the existing decision of doctors that I can only work for

22 three days a week, and that time is very short. At the time, you said you

23 would review all of these things. There has been no subsequent review of

24 these issues."

25 Ms. Graham tells me that the page numbers are correct. I was

Page 33312

1 expecting much higher page numbering but forgetting that the Appeals

2 Chamber starts at 1.

3 On page 41, line 6, he said: "In connection with that, I would

4 like to say that when the three-day work rule was being respected, these

5 three workdays are not only days spent in court but three workdays in

6 general. This was not taken into account. But there were no problems at

7 the time. I will come back to that later."

8 At the foot of page 47 --

9 JUDGE KWON: If you could give me the date of the appeals hearing.

10 MR. NICE: 21st of October.

11 JUDGE KWON: Okay.

12 MR. NICE: And on page 47 at the foot, line 21: "This is what

13 caused stress, shortage of sleep, and other problems. And this complete

14 disregard for the rule that I was allowed to work for only three days a

15 week drove my tension and blood pressure up. In other words, it was the

16 Trial Chamber who caused it with their decision and the fact that they set

17 unreasonable deadlines."

18 He then referred, on page 49, to something that I had said, saying

19 that, "Even Mr. Nice putting forward his arguments before the Trial

20 Chamber, trying to deny me an extension, said that I was working very

21 efficiently and did not need an extension" of three days a week.

22 At page 51 he referred to being allowed to receive witnesses

23 during the summer vacation on the basis of three days a week. And at page

24 52 he said this, line 7: "I believe that we can keep up the dynamics of

25 three workdays per week with the proviso that weeks off should be taken

Page 33313

1 occasionally so that I can proof witnesses I intend to call. And that

2 would be a perfectly reasonable timetable enabling us to conduct these

3 proceed information a perfectly normal manner..."

4 JUDGE ROBINSON: Mr. Nice, I've heard the submission that you've

5 made, but I do believe it's open to question, the interpretation you have

6 put on paragraph 19 of the Appeals Chamber's ruling.

7 I would not conclude that the mere omission of a reference to the

8 accused's right to proof witnesses means that the Appeals Chamber did not

9 intend to include it as one of the modalities.

10 If you look at paragraph 20, it says that the: "The Appeals

11 Chamber stresses the following point: in practice, if all goes well, the

12 trial should continue much as it did when Milosevic was healthy." And I

13 would take that to mean that all the facets of preparation and presenting

14 his case are returned to him.

15 MR. NICE: I've obviously contemplated this and wondered whether

16 it was omission or not. The following sentence, of course with my

17 emphasis applied to one word, may lead to a contrary conclusion. The

18 emphasis is on the word "lay." "To a lay observer who will see Milosevic

19 playing the principal courtroom role at the hearings, the difference may

20 well be imperceptible."

21 But one way or another, and of course if the Chamber concludes

22 that it should err in favour of the accused in interpretation of something

23 that may be incomplete in its expression of what it intended --

24 JUDGE ROBINSON: Mr. Nice, I'm told that we have to finish --

25 THE INTERPRETER: Microphone, please.

Page 33314

1 JUDGE ROBINSON: I'm told we have to conclude at a quarter to.

2 MR. NICE: I shall be done.

3 One way or another, the Chamber is going to have to grapple, or

4 may have to grapple with a timetable that the accused may tell us now or

5 when it suits him should only be three days a week all in, requiring you

6 to sit as little as one and a half days a week or a day a week. This is

7 something, you see, that the Appeals Chamber did explore, and got very

8 unsatisfactory answers from the accused, and from Mr. Kay a concession

9 that they might have to go down to two and a half days a week or something

10 like that.

11 Now, I mention that because in fashioning the regime for the rest

12 of the case, if assigned counsel is retained but in the position of number

13 two rather than number one, then assigned counsel is available, of course,

14 or could be available to prepare the witnesses and thus to maximise the

15 amount of time that could be available for the accused in court.

16 The problem with this is that this would require, it appears, or

17 might require, the cooperation of the accused. We have no idea if it's

18 forthcoming.

19 JUDGE ROBINSON: What would be the utility of assigned counsel

20 preparing the witnesses if the witnesses are to be examined by the

21 accused?

22 MR. NICE: If the accused declines to explain at all what areas of

23 fact or expertise he wants the witnesses to be proofed on, then nothing

24 can be done. That would be his choice. We're coming back to the fact

25 that this accused is trying to control these proceedings by being obdurate

Page 33315

1 in every way. And we come back to the reality that it was unreality for

2 him to try and conduct a case of this scale on his own without assistance

3 and that he is using that position to have his own way.

4 We're looking specifically at what the assigned counsel may do -

5 at least I am - as I look at what the accused's legal position is. The

6 Chamber's heard what he said about the timetable. It's seen what was said

7 specifically by the Appeals Chamber. And although I quite understand the

8 inquiry was missed out by oversight, but I would respectfully invite the

9 Court just to have in mind or to remind itself of the passages in the

10 transcript where the timetable was gone into at some length before finally

11 deciding on what interpretation to place on that paragraph.

12 Where is the Chamber going to go next? What are the options

13 available to it?

14 Mr. Kay, in his submissions, has repeatedly really suggested that

15 all authority, in a way, has to be given to the accused to determine what

16 happens. I have in mind how he explained that the accused had not

17 obstructed the first five witnesses but how their task was impossible.

18 Respectfully suggest that it's nothing like impossible to perform if they

19 are honourable and respond honourably to the rulings of the Court.

20 I observed what Mr. Kay said to the Chamber about your making him

21 going first and that being a shock to them because you'd reversed what

22 he'd proposed. In courts, it is for the lawyers and all other parties,

23 including the accused, to respond to and respect the legitimate decisions

24 of courts that are made.

25 And at the end of Mr. Kay's submissions, it appeared that if and

Page 33316

1 whenever the accused did something that would obstruct the conduct of the

2 case or would be reflected in the complete absence of a harmonious

3 relationship with Mr. Kay, there was nothing that anyone could do except

4 really hand control back to the accused, and that simply can't be right.

5 How to resolve the problem. As I said at the beginning, it's our

6 submission that there is nothing in law that will oblige this Chamber to

7 release Mr. Kay and Ms. Higgins from their obligations. Of course no one

8 wants to see someone doing something he or she doesn't wish to do, and

9 that expression of wish may itself weigh and weigh significantly with the

10 Chamber. But the Chamber has to decide, in our respectful submission,

11 whether there is a further useful function that assigned counsel can do,

12 either now or at some time in the future if things unfold as they're

13 expected to do.

14 As to now, they could ask supplementary questions of witnesses

15 called by -- well, first of all they could be engaged in the preparation

16 of the witnesses if the accused was prepared to cooperate and be

17 realistic, and that would be a useful function for them to do, and it

18 would be one that could be conducted out of court and would free them from

19 the risk of further public criticism of the kind that they find

20 uncomfortable.

21 I can see no real reason for them now to add to the time taken in

22 these proceedings by asking questions when the accused is in the driving

23 seat and has no need of further questions to be asked, and indeed when the

24 accused has shown himself quite capable of dealing with the forensic

25 process in this court.

Page 33317

1 They could be of value to the Court if and when, for one reason or

2 another, the accused is unable or not permitted to lead evidence himself.

3 The problems then arise either, one, will he take some action of

4 non-cooperation or obstruction that will render it impossible for Mr. Kay

5 to do his job because of the ethical concerns he has had and has

6 expressed, because frankly, if that's the position in which we're going to

7 find ourselves, it's hard to see the value and utility of counsel.

8 Is there a function that they can perform in advancing legal

9 argument? We know that we have Professor McCormack to deal with detailed

10 questions of law, and that to date the accused has been pleased to make it

11 clear that he will never make a procedural application. There comes a

12 time when it is appropriate to ask of a man of his intelligence and

13 understanding of the system why he should be given this additional benefit

14 beyond that of anyone else who would choose to represent themselves of

15 being -- of having applications made for him.

16 For example, were you to impose a new, different, and specific

17 regime on the conduct of the case that he expressed some dissatisfaction

18 with, why should he not, like everyone else, make his application for

19 leave to appeal, if he wants to appeal, and otherwise live with the order

20 you make? Why should he be nursed when he has taken the attitude to this

21 Court that he has by someone in Mr. Kay or Ms. Higgins' position? They,

22 of course, always having to go through the difficult position -- exercise

23 of deciding whether they are serving his best interests, whether they are

24 reflecting his desires, and so on, when he won't communicate with them.

25 JUDGE BONOMY: Well, the result of that action speaks for itself,

Page 33318

1 Mr. Nice. You can hardly criticise counsel appointed by the Court who

2 takes an appeal and is successful in that appeal who plainly observed the

3 best interest of his client quite properly.

4 MR. NICE: He did on that occasion, I accept. But the point

5 remains, Your Honour, how far should a court go with an accused who has

6 behaved in the way that this accused has in doing what he is actually

7 quite capable of doing himself. So that's --

8 JUDGE BONOMY: At the moment you're not really addressing the

9 problem that may arise, which is a problem with health. That's the

10 situation that this is all in place to deal with. And are you suggesting

11 that there is no useful purpose in that regard in retaining the services

12 of Mr. Kay and Ms. Higgins?

13 MR. NICE: In our submission, and as the order originally was to

14 operate, whichever order of calling witnesses obtains, there can indeed be

15 a useful function for counsel, for assigned counsel, in conducting a case

16 when the accused, by reason of ill health, is not able to do it himself.

17 Counsel then has to possibly call witnesses, depending on the period of

18 incapacity, prepare witnesses, and call them. I say summon witnesses,

19 prepare them, and call them.

20 My concern is what has been said today about really insuperable

21 difficulties that Mr. Kay regards as blocking him doing that because he

22 can't obtain instructions. In our submission, his observations there are

23 not on the point because he was never obliged to obtain instructions or

24 expected to. But that is his express position. And if his express

25 position succeeds and finds favour with Your Honours, then it is hard to

Page 33319

1 see what his residual function should be.

2 I remind you that -- respectfully remind you that our

3 understanding of the proposed position and the position as effected by

4 your order is that counsel would be untroubled, if necessary, by the lack

5 of communication with the accused, would be untroubled by his

6 disinclination to cooperate, and would simply call witnesses, or summon

7 witnesses, prepare them and call them. And that if, in the event the

8 witnesses, for whatever reason, declined to come, he wouldn't be saying

9 that he had to withdraw, he'd simply be saying that he'd done his best.

10 But the problem with the present position is, and in light of the approach

11 taken by Mr. Kay and Ms. Higgins yesterday and today, is that if he finds

12 himself in that position again, we can reasonably expect that his present

13 position will be maintained, and he'll say he can't act. That's the

14 problem.

15 And, Your Honour -- Your Honours, the setting the thing in a

16 wider -- giving it a wider setting, we would respectfully invite you to

17 look at the resolution of this problem, decide the longer term objective

18 that the Court set or identified of concluding this case within a

19 reasonable and indeed identified period of time, and would again

20 respectfully invite the Court, at any event, to consider whether fixing a

21 time for the conclusion of this case, perhaps the same time as was

22 originally set, and ensuring that the modalities allow for that to happen

23 is one way of looking at the problem.

24 The accused creates problems for the timetable by not using

25 lawyers, by seeking to do everything himself, and arguably by, if it

Page 33320

1 happens again, working so hard that he makes himself unwell. There has to

2 come a time when that combination of obstructive factors has to be faced,

3 and if it has to be faced by saying to the accused, "You can have only so

4 much of a period of time that is identified as you can use by the system

5 you choose to employ for the presentation of your case," so be it.

6 Because otherwise, this Court is being controlled in nearly all aspects of

7 its conduct of the case not by the -- not by the interests it seeks to

8 serve, proper interests, but by the accused himself.

9 But, Your Honour, our basic position has to be, in answer to His

10 Honour Judge Bonomy, that Mr. Kay and Ms. Higgins should not be allowed to

11 withdraw unless the Court, as a result of everything it's heard yesterday

12 and today, is satisfied that there is no useful function for them to

13 serve.

14 JUDGE ROBINSON: Thank you, Mr. Nice.

15 MR. KAY: Your Honour, I have a substantial reply. I know it

16 would take half an hour, and I know that the Court is booked.

17 JUDGE ROBINSON: I was rather hoping we would be able to finish

18 today so that tomorrow we could start hearing the witnesses.

19 [Trial Chamber confers]

20 JUDGE ROBINSON: Let me ask. Mr. Milosevic, the witness you have

21 for tomorrow, how long do you anticipate his testimony will take?

22 THE ACCUSED: [Interpretation] This is an urgent thing that I

23 wanted to put to you today, Mr. Robinson. Today was supposed to be the

24 day that I proofed that witness. However, with no fault of mine, the day

25 was spent on something else. Therefore, I would like to ask you to permit

Page 33321

1 me to prepare this witness tomorrow and that he testify next week. This

2 is one thing that's quite specific.

3 The second thing is that you are aware of the fact that I have had

4 no contacts with witnesses for two months now. I began to establish these

5 contacts following the decision of the Appeals Chamber restoring me my

6 right to call witnesses and question them. I need one week's time as a

7 transitional period from a situation where I had no contacts whatsoever in

8 order to prepare the first batch of witnesses who are to be called here in

9 accordance with the schedule of three days a week, and this is why I

10 believe that I should be permitted to do so.

11 There is another thing. I can prepare this witness tomorrow whom

12 I was supposed to prepare today and which is not possible for obvious

13 reasons, so I would like to ask you that. And I would also like to have

14 some time in order to re-establish these connections and to prepare a

15 group of witnesses which we can start with and then which we could then

16 continuously hear for the time that has been planned for them.

17 JUDGE ROBINSON: You have two requests. The first is that you be

18 given tomorrow to prepare the witness who should have been testifying

19 tomorrow, and then that witness would testify next week. And then your

20 second request is that you be given a period of one week within which to

21 re-establish your relationships with the witnesses.

22 We'll confer.

23 [Trial Chamber confers]

24 JUDGE ROBINSON: Mr. Milosevic, we were informed that the witness

25 was to be proofed at 3.00 this afternoon. It wasn't our understanding

Page 33322

1 that you were going to spend the entire day proofing him.

2 THE INTERPRETER: Microphone, please, for the accused.

3 THE ACCUSED: [Interpretation] Mr. Robinson, today we have this new

4 matter that we have been dealing with these issues all day today, and I

5 have been here all day. I cannot prepare a witness from 3.00 to 4.45,

6 even if I put everything else aside. It's simply not possible.

7 As you know, Mr. Nice proofed his witnesses up to a week. I

8 cannot prepare a witness within an hour. And I think that my request is

9 reasonable, and I'm not asking you for any privileges, but I'm just asking

10 for a reasonable time in order to do what I need to do. And you can say

11 that you accept that or that you do not accept that. That is up to you.

12 But I believe that what I'm asking is reasonable.

13 JUDGE ROBINSON: And would that witness be available next week if

14 he's proofed tomorrow? Do you know whether he will be available next

15 week?

16 THE ACCUSED: [Interpretation] As far as I know, yes.

17 JUDGE KWON: Mr. Milosevic, the Presiding Judge's question was

18 whether the witness was supposed to be proofed at 3.00 today, whether

19 there was an appointment at 3.00 or not.

20 THE ACCUSED: [Interpretation] I was told a few days ago that I

21 would be able to prepare that witness today, that today would be the day

22 to prepare that witness, but not from 3.00 or anything like that. However

23 today, when they saw that this sitting is taking up the entire session,

24 they said that he could come in at 3.00. But it's too short, if he comes

25 to see me at 3.00, it's not enough time for me to be able to prepare him

Page 33323

1 for his testimony.

2 [Trial Chamber confers]

3 JUDGE ROBINSON: Mr. Milosevic, this is what we'll do: Tomorrow

4 morning we'll resume the hearing of Mr. Kay's application. I expect that

5 will take no more than half an hour to 40 minutes. And the rest of the

6 day you'll have to proof the witness, who would then be ready to testify

7 next week.

8 Are we sitting Monday or Tuesday? Tuesday. Next week Tuesday.

9 Tomorrow we will -- we'll give a ruling on your second request

10 that you be given a week within which to re-establish contact with your

11 list of witnesses.

12 So we're going to adjourn now and resume tomorrow morning at

13 9.00.

14 --- Whereupon the hearing adjourned at 1.51 p.m.

15 to be reconvened on Thursday, the 11th day of

16 November, 2004, at 9.00 a.m.