Tribunal Criminal Tribunal for the Former Yugoslavia

Page 33153

1 Tuesday, 9 November 2004

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.06 a.m.


6 MR. KAY: Your Honour.

7 JUDGE ROBINSON: The purpose of the hearing today is to deal with

8 your application for withdrawal.

9 MR. KAY: Yes.

10 JUDGE ROBINSON: Before you commence, it occurs to the Chamber

11 that there is a preliminary issue that has to be addressed. What I'm

12 saying is that before you go to the merits, there is a jurisdictional

13 issue that has to be addressed, and it arises in this way: That Article

14 19 of the directive on assignment, on its face at any rate, gives the

15 power of withdrawal to the Registrar. From a refusal of a request to

16 withdraw, Article 19 provides that the aggrieved party may seek the

17 President's review of the decision.

18 In the past, Trial Chambers have reviewed decisions of the

19 Registrar to withdraw, and that has been commented on by the Appeals

20 Chamber in several cases, notably in Blagojevic, in which reference was

21 made to an earlier decision in Delalic and the dictum that it is not

22 ordinarily appropriate for a Chamber to consider motions and matters that

23 are within the primary competence of the Registrar. And importantly, in

24 Blagojevic, the Appeals Chamber reviewed its earlier position on this

25 matter and said that where a power is specifically conferred on the

Page 33154

1 Registrar and the President, then that is a procedure that should be

2 followed and Trial Chambers should respect that. They should not normally

3 usurp the power of the Registrar and the -- and the President in this

4 matter.

5 So I bring this to your attention because I think, first, the

6 Trial Chamber will have to be persuaded that it has a proper power in this

7 matter to deal with the request for withdrawal.

8 MR. KAY: Yes. We were aware of this, and we wrote to the

9 Registrar in the first instance in a letter dated the 26th of October,

10 2004. We addressed that specifically to him because we were aware of the

11 route under the regulations. And a copy of that letter, out of courtesy,

12 was sent to the Trial Chamber, amongst other parties, those who had been

13 involved, if you like, in various aspects of the decision-making process.

14 We had a meeting with the Deputy Registrar, who was dealing with

15 this matter on behalf of the Registrar, and we told him it was addressed

16 to the Registrar, and he was of the view that as it had been a Trial

17 Chamber decision, that this matter should be referred back to the Trial

18 Chamber because the Trial Chamber had been involved in the decision-making

19 process in the assignment of counsel in the first place.

20 At the time I had stressed that I didn't want to play yo-yo

21 between various parts of this institution, and as I understand it, the

22 Judges' Chamber was consulted about the matter, and it was determined

23 between the Registrar and the Judges' Chambers that the best place for

24 this matter to be referred to would be the Trial Chamber, the Registrar

25 having acted under the order of the Trial Chamber.

Page 33155

1 JUDGE ROBINSON: I'm not myself aware of any part played by the

2 Chamber --

3 MR. KAY: Well --

4 JUDGE ROBINSON: -- in this matter. But carry on, Mr. Kay.

5 MR. KAY: There were discussions as to who would take

6 responsibility for this particular matter, because it was a matter that

7 was going to be obviously of great importance, it was going to have great

8 impact, not only in relation to our particular case, but obviously for the

9 wider implications in other cases. There are other cases where this has

10 been a matter of concern.

11 In those circumstances, we could only follow what guidance the

12 Registrar gave us, because we were the ones who handed it to the Registry

13 in the first place, and from the Registry it was then moved to the Trial

14 Chamber.

15 It's a matter for Your Honours whether you think you have

16 jurisdiction or not, but the decision-making process of the Registry was

17 that it would be their view that it went back to the Trial Chamber, the

18 Registrar having acted under that order.

19 JUDGE ROBINSON: Be that as it may, Mr. Kay, the matter is now

20 here and we have to settle that preliminary question. So so much for how

21 it got here. It is here now, and we have to deal with this preliminary

22 issue, because the Chamber wants to satisfy itself, if it is to hear the

23 application, that it has a proper jurisprudential basis to hear it.

24 MR. KAY: The order of the Trial Chamber appointing assigned

25 counsel puts jurisdiction, I would have thought, with the Trial Chamber.

Page 33156

1 Generally these orders come about as a result of an assignment made by the

2 Registrar and a Trial Chamber is not involved. In the ordinary run of

3 appointments in a case, it is the Registrar who, having, with an accused,

4 selected counsel, assigns them and deals with the matter entirely and the

5 first involvement of a Trial Chamber is notification of the Registrar's

6 appointment.

7 JUDGE ROBINSON: Blagojevic seemed to operate on a distinction

8 between a decision by the Registrar which is wholly administrative and in

9 which a Trial Chamber should not interfere, that's an administrative

10 matter, and a decision by the Registrar which could affect the fairness of

11 the trial. And Blagojevic says that in such a case the Trial Chamber

12 would be entitled to act if it goes to the fairness of the trial.

13 Fairness is not defined, and it's a difficult matter to grasp this

14 distinction between an administrative decision on the question of

15 assignment, which remains wholly at the level of being administrative, and

16 one which has an impact on the fairness of the trial.

17 MR. KAY: In this case, the Trial Chamber gave the Registrar until

18 1.00 p.m. on the 3rd of September to deal with the issue of assignment of

19 counsel and thereafter issued their order on modalities. The Registrar's

20 view was that he was performing his function as a result of the will of

21 the Trial Chamber exercising its powers within the course of the trial

22 itself and that he had not been involved in part of the administration or

23 processing of the matter in the usual way.

24 This matter, as it arises during the course of the trial, could be

25 said to come before the Trial Chamber as a result of the litigation rather

Page 33157

1 than the administration of justice, arising, as it did, as a result of

2 legal argument before the Trial Chamber on the 1st of September and 2nd of

3 September of this year and thereafter having been subject to an appeal,

4 and the Appeals Chamber having made a decision referring the matter back

5 to the Trial Chamber.

6 Our concern was that we took the right route and we had this

7 matter dealt with in a way that was appropriate, and our clear

8 understanding of the decision by the Registry was that this was a matter

9 with which Your Honours should deal with as the Trial Chamber, it having

10 been part of the litigation and trial process rather than in the ordinary

11 course of events an appointment arising by the Registrar engaging in the

12 usual function to assign counsel and thereafter, as a result of his

13 decision and something that he had done, the process that had been called

14 into question was his judgement on the matter.

15 JUDGE ROBINSON: It's clear that ultimately it's a matter for the

16 Registrar. I think Article 19 makes that clear. I mean, we may deal with

17 it and we may come to a particular view and the Registrar would then

18 follow it, but ultimately it is, under Article 19, a matter for the

19 Registrar.

20 MR. KAY: Would it be appropriate for the Trial Chamber to hear

21 from the Registrar on the issue? Because this is a matter that may have

22 repercussions elsewhere.

23 JUDGE BONOMY: Mr. Kay, why was it you wrote to the Registrar in

24 the first instance and didn't apply to the Trial Chamber if your view is

25 the one you're expressing at the moment?

Page 33158












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Page 33159

1 MR. KAY: Because the Registrar had assigned us as counsel and

2 issued an appropriate certificate which we then responded to as a result

3 of the issues that had arisen, which is why we directed it to the

4 Registrar. And we were advised that this matter was to be moved from the

5 Registrar to the Trial Chamber, you having directed the Registrar to

6 perform his function in a particular way.

7 JUDGE BONOMY: It may be that you haven't actually considered the

8 jurisprudence of the Tribunal in detail on this and had assumed that we

9 were going to deal with it today. Is that the situation?

10 MR. KAY: We had considered it, and we had discussed it with

11 counsel in Blagojevic, who --

12 JUDGE BONOMY: So are you able to draw our attention then to the

13 jurisprudential basis on which we should deal with this matter.

14 MR. KAY: Only on the basis that I have referred already, that we

15 are dealing with an order from this Trial Chamber which therefore, in our

16 submission, does put -- make it something that the Trial Chamber has to

17 review. But if the Trial Chamber doesn't want that, and I was trying to

18 avoid -- as I put it to the Deputy Registrar myself, I did not want to

19 play yo-yo on this issue in this building and that he had to understand

20 that we wanted to make this application as we felt it was right and

21 proper.

22 The Registrar himself referred this matter to Your Honours rather

23 than us. We have not -- what has come before the Court is our letter to

24 the Registrar, which we made a public document. The Registrar has moved

25 it to the Trial Chamber. All we have done since this letter of the 26th

Page 33160

1 of October is file a motion yesterday which expands the basis of the legal

2 argument that we felt might be helpful in the decision-making process as

3 it refers to a wider scope of law than that contained within our original

4 letter. So the Registrar is the one who's brought it here.

5 JUDGE BONOMY: Mr. Kay, the Registrar referred the request to the

6 Trial Chamber for its consideration, and he did that considering that in

7 the present circumstances, the request raises issues that are specific to

8 the context of the case and that consideration of the matters therein may

9 be more appropriately addressed by the Trial Chamber in view of its order.

10 Now, there's quite a lot of law in this Tribunal alone on the

11 distinction between the administrative exercise that the Registrar is

12 carrying out and the potential for the Trial Chamber dealing with the

13 issue of withdrawal where an issue, for example, of fairness arises. It's

14 even possible to interpret that as suggesting that there are two lines,

15 two alternative lines that one might follow in that situation, or

16 alternatively, it might be argued that the Trial Chamber has a judicial

17 review role in relation to a decision taken administratively, first of all

18 by the Registrar and then by the President, although that might of itself

19 seem odd.

20 Now, there may even be contradictions in that jurisprudence. But

21 bearing in mind that the Registrar remitted the matter on the basis that

22 issues specific to the context of the case arose, in his view, and that

23 there are cases in which that is the basis on which Trial Chambers have

24 actually dealt with such applications, I would have expected you to be

25 able to address us on the law to help us to try to reconcile any

Page 33161

1 inconsistencies, apparent inconsistencies there might be in the

2 jurisprudence.

3 Now, can I take it that you're not in a position to do that just

4 now?

5 MR. KAY: Well, I don't see any inconsistencies, to be frank, Your

6 Honour, because Your Honour has just been reading out that which I have

7 said, that it arises during the litigation and as a result of an order of

8 the Trial Chamber.

9 There are plainly occasions when something obviously arises as a

10 result of the administrative process, and that goes down the particular

11 route that it does, and cases may wrongly come to a Trial Chamber that

12 should be dealt with at the Registrar level and through the procedure that

13 the Rules provide for when it is referred to the President, but in

14 relation to this particular issue, the arguments of the Registrar that it

15 is a function of the trial process that he was caused to put into effect,

16 i.e., the decision-making of the Trial Chamber, then we -- we have

17 followed that route or, rather, I don't see we have followed that route

18 because I just put it to the Registrar. The Registrar has followed that

19 particular route, and I have made his reasoning clear on it.

20 I don't think we can say any more on that matter. Either the

21 Court is willing to accept jurisdiction because it arises during the trial

22 itself, or we have to go back and advise the Registrar to refer the matter

23 to the President and await the decision of the President.

24 JUDGE ROBINSON: No. The Registrar, if the matter went back to

25 him, would himself make a decision. And if you are aggrieved by it you

Page 33162

1 would then go to the President. That's the procedure.

2 MR. KAY: But if he doesn't make a decision, then we go to the

3 President. That's what I was --


5 MR. KAY: I get a distinct feeling here of no decision-making on

6 it, which I was trying to avoid, and it was in our interests.

7 JUDGE ROBINSON: The Chamber hasn't made up its mind on this.

8 We're hearing --

9 MR. KAY: Oh, I appreciate -- I appreciate that.

10 JUDGE ROBINSON: Mr. Kay, if you --

11 MR. KAY: Sorry. The issue that we discussed with counsel in

12 Blagojevic was on exactly these terms, about the differences between the

13 particular cases, his having been a concern that after 360 hours of

14 conference that he'd spent with an accused, the stage of the trial that

15 they were at, that the accused was then seeking to alter his position with

16 him; an entirely different set-up.

17 JUDGE ROBINSON: And you notice, Mr. Kay, Blagojevic dealt with

18 the question whether the Trial Chamber properly reviewed a decision by the

19 Registrar to refuse withdrawal. Here we're being asked to deal with the

20 issue ab initio. It's not a question of review. The Registrar hasn't

21 made any decision yet.

22 MR. KAY: I suppose one solution is -- I mean, is for this Trial

23 Chamber to order the Registrar to make a decision on the issue. That is

24 something, if the Trial Chamber feel it appropriate and that this is not

25 an issue that goes, in the Blagojevic sense, to the fairness of the trial.

Page 33163

1 But --

2 JUDGE BONOMY: Mr. Kay, let's assume the Registrar makes a

3 decision and it's appealed to the President and you're unhappy with the

4 outcome. Would you then consider that because an issue of fairness might

5 arise in relation to the question of the assignment of counsel that you

6 then might have a second bite at it and might ask the Trial Chamber to

7 look at it because it has some other additional function to ensure the

8 integrity of the trial process that somehow or other goes beyond the

9 Registrar's function in an administrative sense so that we might here in

10 this case have a multitude of processes dealing with this issue?

11 MR. KAY: It's -- it's difficult to deal with that matter --

12 JUDGE BONOMY: That's why I asked you the question about the

13 jurisprudence. You must know whether you've got one route to deal with

14 this matter or more than one route to deal with it.

15 MR. KAY: Well, the route that I'm on is the route that I was --

16 that I was put by the Registrar, and he is someone I must respect and has

17 a role to play within these proceedings. And I can say that his arguments

18 could be considered persuasive, because this does go to the

19 appropriateness of a Trial Chamber order and the issues that arise from

20 that order, which has been part of a chain of litigation since 2001 until

21 today's date involving the same issues. And the Registrar, if he suddenly

22 made an order withdrawing counsel, might feel that Your Honours in the

23 Trial Chamber were wondering what he was up to and why you hadn't been

24 consulted or why you hadn't had a role to play, because it does go to the

25 issue of the fairness of the proceedings and the way the proceedings are

Page 33164












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Page 33165

1 to take place. It is something that in the Blagojevic decision, at

2 paragraph 7, "The only inherent power that a Trial Chamber has is to

3 ensure that the trial of an accused is fair. It cannot be appropriate for

4 itself a power which is conferred elsewhere."

5 JUDGE ROBINSON: "Appropriate for itself."

6 MR. KAY: Yes. "It cannot appropriate for itself a power which is

7 conferred elsewhere."

8 Well, the issue here was sent to the Registrar by the Trial

9 Chamber, and that is why, the Registrar says, this is a Trial Chamber

10 matter. I was acting under the instruction of the Trial Chamber, and in

11 respecting their decision, he wasn't in a position to challenge the Trial

12 Chamber's order when he made the assignment. He was acting under your

13 order. And in a sense, he is saying, "Well, I'm not going to appropriate

14 a power for myself that is conferred to the Trial Chamber."

15 If you were to read that in terms of the Registrar's function, he

16 is saying precisely that which it is saying that a Trial Chamber cannot

17 do. He is saying the Registrar cannot appropriate for itself a power

18 which is conferred elsewhere, and that power came from the Trial Chamber's

19 order.

20 And then Blagojevic goes on to deal with the administrative issue

21 that arose within that case, which was a very different issue to that

22 which arises in this trial.

23 JUDGE BONOMY: Do you read Blagojevic as saying that the Trial

24 Chamber did the right thing or the wrong thing? Procedurally. I

25 appreciate they dealt with the merits, but on procedure, did that case say

Page 33166

1 the Trial Chamber was right or wrong?

2 MR. KAY: I'm saying that it was right. And in many respects, the

3 issues that are raised by this application to withdraw, if not acted upon

4 by the Trial Chamber, are going to leave the Registrar in the same

5 position.

6 Our issue is one of clear ethical reasons founded within the Code

7 of Conduct that is replicated in other codes of conduct, international

8 codes of conduct. If we withdraw and then the Registrar appoints someone

9 else on the same issue, that new counsel may take the same ethical point.

10 He may choose not to. And if he chooses not to, we are putting this Court

11 on notice that there is a fundamental flaw in these proceedings, which is

12 why we are taking the matter as it has arisen.

13 The danger is that if this point is not taken and is somehow

14 washed over, that when this trial is gone back and considered, someone

15 will be saying to a counsel, "Well, you were there, why didn't you do

16 anything about the Codes of Conduct?" And everyone will be saying, "Well,

17 it's his responsibility, the counsel's responsibility to take issues of

18 the Code of Conduct, no one else." And that is why in many respects, one

19 suspects, that the Registrar has referred this matter, as being a trial

20 issue, back to the Trial Chamber.

21 If this Court was to order the Registrar to deal with the matter,

22 he may act upon and make a decision and then he himself come back to this

23 Trial Chamber to make representations on any orders made.

24 JUDGE KWON: So, Mr. Kay --

25 MR. KAY: Yes.

Page 33167

1 JUDGE KWON: -- my impression is that what you are challenging now

2 here is the assignment of counsel itself rather than the assignment of you

3 specifically. So that is why you are saying that it is for the Trial

4 Chamber to decide upon the matter. Am I correct in understanding that?

5 MR. KAY: Yes. My basis for the application comes from the

6 position that we find ourselves in. And I am pointing out that this is

7 not an issue that is solely confined to my position and deals, for

8 instance, with instructions that might be embarrassing and an application

9 to withdraw but deals with the overall position of an assignment not

10 accepted by an accused which has repercussions, if we withdraw, upon any

11 other counsel coming into the case and what is to be expected of assigned

12 counsel.

13 JUDGE KWON: So --

14 MR. KAY: Assigned -- sorry.


16 MR. KAY: I was going to say you can have assigned counsel and

17 that can be fine in principle. What is expected of that assigned counsel

18 may well cause the problems with the Code of Conduct and the ethics of the

19 counsel assigned for the Defence in the trial. So in a sense it is to

20 deal with our position that we have been put in, the application to

21 withdraw, but it is also raising what is expected of assigned counsel.

22 JUDGE KWON: So were we to follow your reasoning, then it would be

23 impossible for a Trial Chamber to assign a counsel upon the accused who is

24 unwilling to cooperate with him.

25 MR. KAY: You'd have to consider what you wanted that assigned

Page 33168

1 counsel to do. And if it was to act in a way that guessed the

2 instructions, that caused him to believe what instructions were to be,

3 then you run into the ethical issues and breaches of the Codes of Conduct.

4 If you wanted an assigned counsel to act rather in a way that the

5 amici curiae in this case used to act, then you wouldn't have a problem.

6 And it's not the fact of the assigned counsel. You can assign a counsel,

7 but it's the jobs that are to be set for him or her to do.

8 JUDGE BONOMY: Mr. Kay, can you explain to me now the differences

9 between the role you would now be expected to play in light of the Appeals

10 Chamber's decision and the role that you did play as an amicus?

11 MR. KAY: We issued our request to the Registrar as soon as we had

12 finished the Appeals Chamber hearing to demonstrate our independence in

13 this issue and that we were considering it within the terms of the Codes

14 of Conduct. At that stage, we were acting under the modalities order made

15 by the Trial Chamber, which we attempted to put into operation, and we

16 attempted to see if it would work with the accused.

17 Our position is, in our submission, that it failed for us to be

18 able to perform those functions, and so we had to point out to the

19 Registrar that it was -- that it had reached a stage where it was causing

20 us to be in conflict with the Code of Conduct. We had also sought advice

21 from our own Bar counsel in England, first of all on the issue of

22 assignment - there was no problem - secondly, on the order of modalities.

23 And there we were advised, well, you've got to see if it works and you may

24 reach a stage where you have to say this cannot happen and you have to

25 withdraw.

Page 33169

1 The Appeals Chamber, having made the decision that it had which

2 overturned the order on modalities --

3 [Trial Chamber confers]


5 MR. KAY: Yes. The Appeals Chamber overturned the order on

6 modalities, left the assignment of counsel. By that stage we had applied

7 under our existing remit, which was as assigned counsel acting under the

8 order of modalities. What has changed now is that the order of modalities

9 is up to review as a result of the decision by the Appeals Chamber. At

10 that stage -- at this stage there is no fresh order. We're still subject

11 to the old order, and that is why our application to withdraw is founded

12 upon that order.

13 It's not only founded upon that order, but it is as a result of

14 what happened during those two months until the Appeals Chamber decision,

15 from the 3rd of September until the 1st of November. Because during that

16 time we found once what was a cordial relationship when we were amici

17 curiae with the accused, and we were able to perform a worthwhile function

18 with an informal degree of cooperation, we have found that in the last two

19 months, that position in relation to us and the accused has completely

20 been destroyed. I have not welcomed being called a prosecutor when I am

21 representing a person as assigned counsel, nor have I welcomed criticism

22 that I haven't put the case properly when I've got no instructions and I'm

23 trying to do my best.

24 It has shown that, as assigned counsel, our relationship with this

25 accused has run into the sand and has completely deteriorated to the

Page 33170












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Page 33171

1 extent that we do not have what existed before.

2 JUDGE BONOMY: That really wasn't the question I asked, or at

3 least it wasn't an answer to the question, with respect, Mr. Kay. The

4 question was what's the difference between the position you would now be

5 in following the order or the terms of paragraph 19, that's the

6 disposition of the Appeals Chamber's determination, and your position as

7 amicus?

8 MR. KAY: I'm sorry, Your Honour. I was trying to explain that

9 the position now is that we have no basis for a relationship. There was

10 an amici curiae who --

11 JUDGE BONOMY: Let's leave that aside. I've read all that already

12 in your written submission. But so far as the practicalities are

13 concerned, in other words, the role that you would be expected to play in

14 court, what is the difference?

15 MR. KAY: For us personally or on the overall issue of whether an

16 amici or an assigned counsel? For us personally or in the abstract?

17 JUDGE BONOMY: You made a submission that there would be no

18 difficulty for counsel taking on the role of amicus that you had before.

19 MR. KAY: Yes.

20 JUDGE BONOMY: Which involved cross-examination following upon --

21 or examination of witnesses following upon the cross-examination by

22 Mr. Milosevic. Now, what is the difference now in practical terms,

23 assuming we follow the set-up laid out in paragraph 19 of the disposition?

24 MR. KAY: For an assigned counsel in general other than me.

25 JUDGE BONOMY: Yes, in general.

Page 33172

1 MR. KAY: Oh, there wouldn't be any problem, but there must be an

2 issue which has to be considered very carefully. The accused calls

3 evidence in chief, and it was something that was never resolved when we

4 were amicus, as to what was to happen in the Defence phase of the case in

5 the questioning of the accused's witnesses, because that would be

6 considered to be cross-examination if not evidence in chief from him.

7 And I can tell the Court I'd struggled for six weeks over this

8 issue in the back of my mind over how it -- not knowing that we would end

9 up as assigned counsel, but as amici curiae, how Ms. Higgins and I would

10 have dealt with that issue.

11 JUDGE BONOMY: So to that extent the matter has improved. That

12 issue has been resolved because your interests are clearly those of

13 Mr. Milosevic to pursue what -- the lines that would emerge from his own

14 examination and to amplify these insofar as you considered it appropriate.

15 MR. KAY: The trouble is if he wanted you to do that. He didn't

16 really have -- and I can say, have any objection, as amici curiae, us

17 questioning witnesses, and sometimes he would encourage it, and he'd say,

18 "Mr. Kay, remember the NATO bombing," in an informal way, and we'd note

19 that down and follow it through.

20 The difficulty, if you don't have that relationship --

21 JUDGE BONOMY: I've got that point, Mr. Kay.

22 MR. KAY: Yes.

23 JUDGE BONOMY: I just want to be clear, absolutely clear in my

24 mind whether the modalities that the Appeals Chamber have guided us to

25 follow put you in a position where you're more or less in the role of an

Page 33173

1 amicus. Do you accept that that's the position?

2 MR. KAY: No, I don't accept their decision did. And paragraph

3 19, it was a matter of concern to me. Paragraph 20: "The Appeals Chamber

4 stresses the following point: Practice, if all goes well, the trial

5 should continue much as it did when Milosevic was healthy, playing the

6 principal role in the courtroom during the hearings and the difference may

7 well be imperceptible. If Milosevic's health problems re-surface with

8 sufficient gravity, however, the presence of assigned counsel will enable

9 the trial to continue even if Milosevic is temporarily unable to

10 participate. The precise point at which that reshuffling trial roles

11 should occur will be up to the Trial Chamber."

12 And this causes, again, the ethical issues.

13 JUDGE BONOMY: I can see -- I can entirely understand that, but

14 that's a problem that may or may not arise.

15 MR. KAY: Yes.

16 JUDGE BONOMY: That's a hurdle we have to deal with if we come to

17 it.

18 MR. KAY: I don't disagree with that.

19 JUDGE BONOMY: And I fully appreciate your concern about that.

20 But subject to that, do you see that for counsel in general the role that

21 the Appeals Chamber have indicated that counsel should play is broadly

22 similar to the role of the amicus?

23 MR. KAY: Yes, the issue is over questioning and --

24 JUDGE BONOMY: But to that extent it's assisted because it has

25 removed the dilemma you had before.

Page 33174

1 MR. KAY: Submissions Issues on the law, filings on the law that

2 he doesn't make that are in his interests may be possible.

3 The -- there may be some things that he wouldn't want to challenge

4 as a matter of law, I don't know, but you have to work it out. In our

5 role as amici curiae, we gradually worked things out as to how we were

6 able to best cover the accused's interests, as we saw it, and certain

7 issues we put firmly before the Trial Chamber, like the filing over

8 whether we made a submission under Rule 98 bis, so that Mr. Milosevic had

9 an opportunity, if he wanted, to make a representation about it.

10 It's the instructions and acting without them that is the problem

11 in the case.

12 JUDGE ROBINSON: Mr. Kay, if you have nothing more on the

13 preliminary issue of jurisdiction, I'll ask the Prosecutor if he has

14 anything to assist us.

15 [Trial Chamber confers]


17 MR. NICE: On the preliminary issue, I didn't come prepared to

18 deal with that. I'd need some further time to deal with it. The matter

19 was substantially ex parte so we received some but not all of the

20 documentation.

21 The only points I can make without further careful consideration

22 to guide you are these: That it might be possible to construe the

23 reaction of the Registrar as a refusal, but that of course would then lead

24 to a referral to the President.

25 The second point is it's obviously sensible, in a way, that this

Page 33175

1 Chamber should deal with the issue, it having caused the assignment of

2 counsel in the first place following argument about imposition, and I

3 suppose it would be possible procedurally for there to be argument before

4 this Chamber as if Mr. Kay had brought his application first here, as it

5 might have been sensible to do, in order that an opinion of the Trial

6 Chamber could be available to the Registrar for his deliberation. But

7 again, I haven't considered that as a general procedural device and would

8 seek some time before doing so.

9 JUDGE ROBINSON: That concerns me a little, because the Trial

10 Chamber is not in the business of providing opinions.

11 MR. NICE: Well, if it can't do that we'll have to look at the

12 matter much more formally. But as I say, I wasn't alerted. My

13 responsibility entirely to the need to deal with this as a preliminary

14 issue, and I'd prefer some time to deal with it.

15 Other matters that have been raised, to some extent they really

16 trespass onto the territory of the substantive argument, if it is ever

17 held before this Trial Chamber, but other matters that arise from what

18 Mr. Kay said this morning, for him to say that there is a fundamental flaw

19 in these proceedings is to go a very long way and is arguably an unhelpful

20 observation to be made at this stage.

21 What we know is that there was argument at an earlier stage by

22 Mr. Kay about whether counsel should be assigned or not and that that

23 argument proceeded on the basis, as indeed the Chamber instructed

24 arguments should proceed --

25 JUDGE ROBINSON: I'll stop you there, Mr. Nice. Not dealing with

Page 33176












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Page 33177

1 whether there is a substantial flaw, but if he's right that a question of

2 a substantial flaw arises, then that may go to the issue of fairness.

3 MR. NICE: Yes. I don't dispute that.


5 MR. NICE: But going back -- absolutely. But going back to where

6 I was, the earlier argument proceeded on the basis, as the Chamber

7 instructed it should, that there would be no cooperation by the accused.

8 And indeed the submissions of Mr. Kay before he ever accepted the

9 assignment and thus the change in his terms of engagement forecast

10 specifically that witnesses would not cooperate with him. Indeed I was

11 concerned to see that in a public filing for fear that it might encourage

12 witnesses to non-cooperation.

13 Further, in the very document that he provided you at court on the

14 2nd of September, his proposed model to which in large part the Chamber

15 indicated it had turned for assistance, Mr. Kay said at paragraph 5: "In

16 the event of the failure of the accused or any persons acting on his

17 behalf cooperating with assigned counsel in the production and calling of

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

19 assigned counsel may cause those witnesses or any other witnesses deemed

20 by him to be relevant in the case."

21 He went on at paragraph 6: "In the event of witnesses identified

22 by the accused to be called in this case not cooperating with assigned

23 counsel, that counsel may seek orders from the Trial Chamber to compel

24 their attendance or cooperation if deemed necessary."

25 And I --

Page 33178

1 JUDGE ROBINSON: Mr. Nice, that's going into --

2 MR. NICE: Yes, it's going into the merits.

3 JUDGE ROBINSON: And we are going to address that if we come to

4 it, but I'd like us to be tidy in this process.

5 MR. NICE: I'm happy to do that. It's just that to some degree

6 we'd ventured into these issues at the questioning of the Bench.


8 MR. NICE: And if we want to stay narrowly within the confines of

9 the procedural issue, I'd seek a little time to state our position so that

10 we can be of maximum assistance to the court in something that, as I

11 repeat, is essentially ex parte and which I don't have complete

12 information. For example, I don't think we've seen the letters, but I

13 might be wrong, passing to and from the Registrar. I have got a copy of

14 the referral by the Registrar. That's the document of the 27th of October

15 of this year or, rather, the Deputy Registrar, and I'll be corrected as to

16 our possession or sight of the letters, but in any event I'd like them

17 before offering you further assistance.

18 JUDGE ROBINSON: Thank you, Mr. Nice.

19 [Trial Chamber confers]

20 JUDGE ROBINSON: Mr. Milosevic, you've heard the matter that we're

21 discussing, and if you have anything to say on it, bearing in mind that

22 I'm confining discussion at this stage to the preliminary issue as to

23 whether the Chamber has jurisdiction to deal with Mr. Kay's motion. I am

24 not dealing with the merits of that application now, just the

25 jurisdictional question.

Page 33179

1 Do you have anything to say on that issue?

2 THE ACCUSED: [Interpretation] Mr. Robinson, as far as I

3 understood, with your decision you put Mr. Kay in the situation he's in in

4 the first place, so it's logical to assume that you do have the

5 jurisdiction to resolve the situation you created yourself.

6 JUDGE ROBINSON: That's a very pragmatic approach. I hear it.

7 Mr. Nice, how -- you said you might -- you would want some time.

8 How much time?

9 MR. NICE: Well, within this morning. I don't -- I don't think

10 very long, but --

11 THE INTERPRETER: Microphone, please.

12 MR. NICE: -- quite sure that I -- I want to be quite sure I give

13 you the maximum assistance I can.

14 JUDGE ROBINSON: Forty-five minutes?

15 MR. NICE: Yes, I should hope so.

16 JUDGE ROBINSON: We will give you an hour.

17 MR. NICE: Thank you very much.

18 JUDGE ROBINSON: Yes, 11.00.

19 MR. NICE: I'm grateful to Judge Bonomy.

20 JUDGE ROBINSON: We will adjourn until 11.00.

21 --- Recess taken at 10.02 a.m.

22 --- On resuming at 11.07 a.m.

23 JUDGE ROBINSON: Yes, Mr. Nice.

24 MR. NICE: Your Honours, I'm grateful for having had not just 45

25 minutes but an hour, because with the considerable assistance of

Page 33180

1 Ms. Graham, who has done a lot of the research into this topic, I have to

2 tell you we'd reached three-quarters of the way to our conclusion by 45

3 minutes and we needed the full hour to get the final result.

4 Our conclusion, which will need some minutes fully to explain, but

5 our conclusion is that what should have happened is that Mr. Kay should

6 have made an application under Rule 73 for further exercise of your powers

7 under Rule 54 to annul your earlier decision.

8 The whole process of reasoning on this application of his is

9 disturbed by the fact that the letter was sent between argument before the

10 Appeals Chamber and their decision. And it may be -- when you've heard

11 how we would invite you to approach the problem, it may be that it is

12 easier to reach a resolution of this problem by considering what would

13 have been the position had that application, the subject of the letter,

14 not been launched until after the conclusion of the Appeals Chamber had

15 been delivered. I will return to that because it may not be immediately

16 obvious why we make that point, but I ask you to have it in the back of

17 your minds.

18 It's necessary to go right back to the beginning and to look at

19 the powers that the Court has to assign counsel, and immediately to have

20 either in the back or the forefront of your minds, I don't know which,

21 that although the word "assignment" is used in the regulatory documents of

22 this Tribunal and is ordinarily construed as assignment on a voluntary

23 basis of counsel to willing accused, it has been construed as including

24 assignment of counsel to an unwilling accused which has been sometimes

25 described as imposition of counsel, something not specifically covered in

Page 33181

1 the Statute, Rules, or regulations.

2 Assignment of counsel under the Statute, Rules, and directive

3 appears to be something for which there is a comprehensive structure. On

4 examination, that structure is, in fact, incomplete, for it does not cover

5 specifically and cannot cover in practice that segment of assignment of

6 counsel where it is assignment of counsel to an unwilling accused. This

7 problem falls within that segment of the assignment of counsel for which

8 there is not a fully articulated set of Rules, regulations, and

9 directives.

10 Articles 20 and 21, in particular, of the Statute give rise to the

11 right to assign counsel, and it may or not be fairly inferred that at that

12 stage this particular circumstance was not envisaged. The Rules of

13 Practice and Procedure deal with the assignment of counsel, and again it

14 may be reasonably inferred that at the time of their creation, this

15 particular type of problem was not envisaged, likewise with the directive.

16 Assignment of counsel on an unwilling accused, sometimes described

17 as imposition of counsel, has been achieved at this Tribunal in two cases;

18 Seselj, and in the Milosevic case. In the time that you helpfully made

19 available to me, I've tried to review our -- several pleadings over a

20 number of years where we have dealt with imposition of counsel, i.e.,

21 assignment of counsel on an unwilling accused, and I think our pleadings

22 have always relied upon Article 21 without articulating the precise

23 regulatory mechanism by which the rights and powers given in Article 21

24 could be exercised so as to lead to such assignment or imposition of

25 counsel.

Page 33182












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Page 33183

1 Had we -- I may be wrong, it may be lurking in one of the earlier

2 pleadings, but I haven't been able to review them all in detail. However,

3 had we been asked to explain the precise mechanism by which such

4 assignment or imposition would have been achieved, we would have said that

5 it would be achieved by an application under Rule 73, the general Rule for

6 applications, with the Chamber exercising its powers under Rule 54. And

7 it is interesting to observe that in the Seselj case, the other case where

8 counsel was imposed, it is specific that the imposition was under Rule 54.

9 In one case or the other, and in any other such case where counsel

10 may be assigned to an unwilling accused, the question arises what happens

11 next if a problem arises? And we have the answer in part in Seselj,

12 because in Seselj a problem did arise between the accused and counsel

13 assigned to him, unwilling though he was. And that problem was dealt

14 with, and completely, by the Registrar. But the problem was radically

15 different from the problem that we have here, because the problem there

16 was that counsel wished to be relieved of his role for various reasons and

17 he applied to the Registrar with the eventual result that there was

18 substitution of him by another counsel in accordance with the directive.

19 If I can just take a minute out to go back to my earlier point.

20 The structure, the overall structure for dealing with assignment of

21 counsel is incomplete because it doesn't deal - Statute, Rules,

22 regulations, directives, whatever - with assignment of counsel on an

23 unwilling accused, but wherever the structure, including the directive,

24 can deal with the problem, then obviously it should deal with the problem.

25 And that was emphasised in Blagojevic, where the Appeals Chamber made the

Page 33184

1 point that the Trial Chamber's real power in something that could be dealt

2 with by the Registrar is simply to stay proceedings.

3 So we have two helpful bits of material from Seselj, as would have

4 been inferred from our applications for imposition of counsel and as could

5 have been articulated by me if I'd been asked and as has been made clear

6 in Seselj. Imposition or assignment on an unwilling accused takes place

7 by exercise of Rule 54, powers under Rule 54; thereafter, everything

8 remaining with the Registrar under the directive insofar as it is

9 possible.

10 So we then move to the present position and ask the question: Is

11 this something that it is possible for the Registrar to deal with on

12 detailed analysis under the directive, or is this part of the overall

13 limited number of assignment-of-counsel problems that fall outside the

14 fully articulated regime? And that's why I say we should look at the

15 position as it would have been had Mr. Kay not served this letter at what

16 for other reasons may be thought to have been an entirely inappropriate

17 moment but waiting until there had been a decision of the Appeals Chamber.

18 Let's examine what that would have shown us. It would have shown

19 the Appeals Chamber saying assignment of counsel is indeed justified even

20 if it is against the will of the accused concerned. And then what do we

21 know Mr. Kay is trying to achieve? Is he doing something broadly parallel

22 to what first counsel assigned to Seselj was doing, which was to seek a

23 substitution of counsel, something that could stay with the Registrar?

24 No, he is not. He has made it clear in his letter. And I understand I do

25 have all the correspondence; I said earlier I wasn't sure. He's not

Page 33185

1 seeking the change of --

2 Your Honours, just give me a minute.

3 He made it clear in his letter and made it absolutely crystal

4 clear today by his observation that there is a fundamental flaw in these

5 proceedings that he is challenging the appropriateness or justification of

6 assignment against the will of this accused at all. That question is a

7 question that was originally asked and answered by effectively an

8 application -- well, it wasn't an application by us because we were

9 invited to make submissions, but effectively an application by us under

10 Rule 73 for your exercise of your powers under 54, Rule 54, and would

11 either constitute by Mr. Kay a second appeal, almost, because he would be

12 asking the Appeals Chamber to say, "Well, you've said you can have counsel

13 assigned, but we're saying no, you can't have counsel assigned because

14 there's a fundamental flaw," or he would be asking the Trial Chamber, by

15 route of Rule 73 and exercise of powers under 54, to annul its earlier

16 decision to impose or assign counsel to an unwilling accused at all.

17 Now, if that analysis, and I'm sorry to have taken some minutes of

18 your time, is correct and logical, it means that the decision, the subject

19 matter of the letter, should indeed be with this Chamber, and that, of

20 course, accords with a certain feel of logic and indeed with the accused's

21 own and on this occasion admirably succinct contribution, but in that way

22 the matter can be before this Chamber.

23 Technically to reconstruct the documentation as an application for

24 you to annul your earlier decision on the assignment of counsel should

25 not, I hope, be beyond the ability of the Chamber to deal with, for what

Page 33186

1 we have is a letter sent, as I say, inappropriately early, and the

2 Registrar indicating by his -- or the Deputy Registrar indicating by his

3 order that the matter is more appropriately dealt with by you. And in

4 combination, those documents could be taken by the Chamber, or perhaps

5 with Mr. Kay being required to make a further submission in writing, could

6 be taken by you as an application to annul your earlier order.

7 Nothing else to say save this: That if you were to be against

8 this interpretation and proposed solution, the only alternative would be

9 to say that this application should fall within the overall competence of

10 the Registrar, but for the reasons I've advanced, the Registrar might find

11 it impossible to deal with, because unlike the question of finding another

12 counsel, which is something he was able to do in the Seselj case, he would

13 be being asked to make a decision based on the whole conduct of a trial

14 and all the evidence in the trial, which are things not known to him, and

15 so it might be revealing the incompleteness of the overall code dealing

16 with assignment of counsel by requiring the impossible of the Registrar.

17 I don't know if I can assist further.

18 JUDGE ROBINSON: Thank you very much. It's quite helpful.

19 Mr. Kay.

20 MR. KAY: Yes. Your Honours, the submission you've just heard

21 plainly hasn't read carefully our letter, and I appreciate Mr. Nice had

22 not seen it before today, although it was copied to them on the day that

23 it was issued.

24 The reason for writing this letter to the Registrar on the 26th of

25 October, after the Appeals Chamber hearing, was that the issue of the

Page 33187

1 assignment of counsel was an entirely distinct issue from that which we

2 were forced to deal with personally as assigned counsel. These two

3 matters are not in any way connected.

4 The appeal on behalf of the accused that we took dealt with the

5 assignment issue and the modalities. And in fact, I point out to the

6 Court Prosecution actually objected to us appealing the modality, saying

7 that it was an entirely separate matter, although plainly the Appeals

8 Chamber didn't find any jot of sense in that application.

9 When we got to the Appeals Chamber hearing, we knew that by the

10 time we'd got to witness number 5 that our position had become

11 increasingly untenable. And during the hearing, when I was in a position

12 to have to explain the breakdown in relations between assigned counsel and

13 the accused and what had happened and referred that to the Appeals

14 Chamber, it was decided the moment that we walked out of this court that

15 we had to logically express that in a proper way to the Registrar, who has

16 a power under Article 19 of the directive on assignment of Defence counsel

17 to deal with the issue.

18 So this was not any attempt to appeal the issue of assignment at

19 all. It was a professional step taken in consultation with our Bar. We'd

20 referred the matter as well to the Association of Defence Counsel, who I

21 may say today have told us that their disciplinary committee, who have had

22 a review of this entire matter, totally support our position and

23 understand it, and I believe are issuing a draft statement later on today.

24 But we felt that professionally we had reached the stage at the

25 culmination of that Appeals Chamber hearing where we had argued ourselves

Page 33188












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Page 33189

1 into an untenable position, and, therefore, this matter had to go back to

2 the Registrar whose directive had appointed us in the first place. He

3 referred it, quite properly, under his own motion to the Trial Chamber,

4 and yesterday we put in a formal and expanded motion on this issue which

5 is a development from the 26th of October.

6 It quite plainly is a fair trial issue. I was asked about the

7 jurisprudence earlier on. The lines of decisions dealing with this

8 particular problem are all entirely consistent, and it's been pointed out

9 to me that Your Honours Judges Robinson and Kwon were in the case of

10 Knezevic where again you ruled that matters relating to the assignment of

11 counsel for an accused affect the conduct of a trial, the Chamber has a

12 statutory obligation to ensure the fair and expeditious conduct of the

13 proceeding.

14 JUDGE ROBINSON: That was before Blagojevic, though.

15 MR. KAY: But it's precisely where we are.

16 JUDGE BONOMY: Are you saying it's consistent with Blagojevic?

17 MR. KAY: It is a matter to do with the fairness of the trial.

18 JUDGE BONOMY: Mr. Kay, you've just made reference to the

19 Association of Defence Counsel. At the moment I haven't the remotest idea

20 of what possible relevance something said to you by an association could

21 have in the submissions that you're making before us. Could you help me

22 on that, please.

23 MR. KAY: Certainly. The ADC is a body that was established

24 through the Registry of this court as a way of assisting in the

25 development of Defence counsel, their terms and conditions, their

Page 33190

1 education, matters concerning their involvement in cases, and are the

2 official body by which members of the Bar join if they're in the conduct

3 of a case here. And they have a disciplinary committee. The executive

4 committee appoint a disciplinary committee on an issue.

5 They were naturally referred to by us as we were taking something

6 that was a matter of professional conduct, and it is of concern to them

7 the position that we find us in, because we feel in many respects we are

8 standing for a position of integrity to make it clear to the Court what

9 can and cannot be done by assigned counsel.

10 So there are two issues. There is the assignment issue, which we

11 dealt with, and there arose and came about after two months our

12 professional position, which we naturally would seek to consult others

13 associated with the issue to take their advice.

14 JUDGE BONOMY: It seems to me very odd to make a submission about

15 something an association thinks orally in the context of a hearing such as

16 this and expect us to give any weight to it when we haven't the remotest

17 idea of what were the factors considered by them and without anything

18 presented in writing. So I for one, for my part, make it clear to you

19 here and now that that will play no part in my determination of this.

20 MR. KAY: Well, if I'll just explain to Your Honour. They were

21 provided all the materials that Your Honour was provided, and asked to

22 review the issue and the professional course of conduct that we were

23 embarked upon and whether, in their view, they disapproved or approved.

24 And for us, it is an important issue, as it would be to consult our own

25 Bar on the issue.

Page 33191

1 These two matters concerning the assignment are not linked, and

2 that is not our position. As I have said and made clear, it may well be

3 possible for the Court to assign counsel giving them particular roles and

4 responsibilities in relation to the conduct of this trial. We now come

5 before the Court with experience having tried to implement in good faith

6 to enable this Defence case to happen, but we ran up against obstacles

7 that have caused us to consider our professional position. And in our

8 view, the Registrar rightly referred this matter to the Trial Chamber, it

9 having come about as an issue relating to the conduct of this trial and

10 its overall fairness.

11 If the Registrar had taken a decision I'm -- that said,

12 "Ms. Higgins and Mr. Kay, you may withdraw," I'm sure this Trial Chamber

13 would have suddenly been wondering what was going on. If that decision

14 had been made in the absence, I'm sure the Registrar would have been

15 invited, I'll use the word rather than hauled up, to explain himself.

16 To us, it is quite plain where this issue arises and that we

17 properly arose it or sent it to and gave it to the person who had

18 appointed us in the first place. And that, we submit, is the issue in

19 relation to jurisdiction.

20 Thank you.

21 JUDGE ROBINSON: Thank you, Mr. Kay.

22 [Trial Chamber confers]

23 JUDGE ROBINSON: The Trial Chamber will adjourn to consider this

24 matter. We will adjourn until half past twelve.

25 --- Recess taken at 11.37 a.m.

Page 33192

1 --- On resuming at 12.28 p.m.

2 JUDGE ROBINSON: At the beginning of the hearing this morning, the

3 Chamber asked for submissions on the question of jurisdiction to hear the

4 application filed by Mr. Kay for withdrawal. All the parties expressed

5 the view that the Chamber had jurisdiction to hear the application. The

6 Chamber is grateful for those submissions.

7 The Chamber has considered the Statute, the Rules, and the

8 jurisprudence of the Tribunal and has concluded that it does have

9 jurisdiction to hear the application.

10 We will hear from Mr. Kay first.

11 MR. KAY: Thank you, Your Honour.

12 The Court knows that this issue arose as a result of a letter to

13 the Registrar filed by us on the 26th of October, 2004, and as that letter

14 said, followed the hearing of the Appeals Chamber on the 21st of October

15 on the issue of assignment of counsel to the accused, and we requested a

16 withdrawal of our position by the Registrar under Article 19 of the

17 directive. That letter set out in basic terms a history of the matter, a

18 background, and provided the Registrar with the basic details of the

19 developments in the proceedings.

20 As the Court will know from that letter, we cited within it the

21 Court's Code of Conduct and referred to Article 8 of the Code and other

22 provisions of the Code and set out a -- within a binder the various

23 materials that we had put together that were relevant to the letter. I

24 know that that was copied for the Trial Chamber, because what we did was

25 set together the regulations that were appropriate as well as references

Page 33193

1 within the transcripts where issues arose concerning our conduct of the

2 defence and statements made by Mr. Milosevic. I'd just like to check to

3 ensure that that did get through from the Registry to the Trial Chamber.

4 Good.

5 JUDGE ROBINSON: Yes, Mr. Kay, it did get through.

6 MR. KAY: Thank you.

7 JUDGE ROBINSON: Thank you.

8 MR. KAY: Because that is the basic working file --

9 JUDGE BONOMY: What I have is a document that's entitled "Assigned

10 Counsel's Motion for Withdrawal with Annex A."

11 MR. KAY: That was filed yesterday, the 8th of --

12 JUDGE BONOMY: Is that not what we should be working on?

13 MR. KAY: -- of November. I'm just checking what materials you

14 have, because with that Annex A we put the regulations, but we obviously

15 didn't put the transcripts and other materials. It's the big file that we

16 prepared for all the parties.


18 MR. NICE: We haven't got that. We have Annex A, Table of

19 Contents 1 to 10, and I think nothing else.

20 MR. KAY: There is the letter of the 26th of October, which the

21 Prosecution should have. I don't know whether you would have had all the

22 materials that went with it, because at that stage it was for the

23 Registrar and the interested parties.

24 [Trial Chamber and legal officer confer]

25 JUDGE ROBINSON: The only disadvantage is that the Prosecutor

Page 33194

1 doesn't have the material.

2 MR. KAY: Yes.

3 JUDGE ROBINSON: But I think the Prosecutor is well-versed in the

4 case law of this, so --

5 MR. KAY: I was going to say it's all footnoted.


7 MR. KAY: As the Court knows from the letter to the motion we

8 filed yesterday, everything is footnoted and referenced, and you're able

9 to pick up all these details.

10 JUDGE ROBINSON: Mr. Nice, if you find yourself embarrassed in any

11 way, then you can bring it to our attention.

12 MR. KAY: And as I obviously know from Judge Bonomy's observation,

13 you have the filing of the 8th of November, which was an expanded basis of

14 the original letter, because having known that it had been referred to the

15 Trial Chamber, we decided it was -- it was prudent to put a proper motion

16 before the Court as well as expand the issues relating to the ethical

17 issues that have arisen.

18 As the Court knows, the order was issued on the 2nd of September,

19 2004, for assigned counsel to be appointed, and on the 3rd of September,

20 2004, the Deputy Registrar appointed us, and later on that day the Trial

21 Chamber issued the order on the modalities to be followed by

22 court-assigned counsel.

23 Thereafter, on the 7th and 8th of September, we called the first

24 of five witnesses in the accused's trial, working from a witness list that

25 had been filed under Rule 65 ter, which is where an accused gives notice

Page 33195

1 to the Trial Chamber and the Prosecution details of those witnesses that

2 are not protected. And during the run-up to the presentation of the

3 Defence case, during the period of several adjournments from May until

4 August, the accused had filed five schedules of witnesses, detailing

5 witnesses to be called by him at the start of the commencement of his

6 trial. They amounted, in all, to 50 identified witnesses.

7 The first witness we called, Ms. Avramov, was on the accused's

8 list of witnesses, was in The Hague, and had been seen by the accused

9 prior to being seen by us and a proof taken from her. She was asked if

10 the accused had said to her whether or not she should be a witness called

11 by assigned counsel, and she stated that the accused had left it to her

12 whether or not to give evidence. And we looked at that as being perhaps

13 an indication of some form of cooperation in the conduct of the Defence

14 that perhaps could be worked upon to enable a Defence case to proceed

15 involving us.

16 The witness gave evidence, and prior to her giving that testimony,

17 I had asked the Court whether the accused could question her first, and

18 the Trial Chamber decided that the order on modalities was clear, that

19 that should be a function carried out by me first with the accused

20 following. And I had made the application because I felt it was in the

21 best interests of attempting to get a Defence case running smoothly if the

22 accused could be given the lead hand in the calling of the evidence and

23 dealing with issues of strategy.

24 That was not accepted, so I called that witness, and the accused,

25 at the end of my examination, refused to take part in the questioning

Page 33196

1 himself and criticised the way I'd presented the case. And meanwhile, we

2 had set about an appeal against the issue of the assignment of counsel in

3 the first place, and the Trial Chamber had issued its certificate for

4 appeal.

5 We then called a second witness and the procedure followed that as

6 before. This witness was Mr. Jatras. We saw him after he had been seen

7 by the accused. We asked him whether he had been told not to cooperate

8 with us. He said that had not been the case, the accused had left the

9 matter up to him. And so we called that witness, and again at the end of

10 it, the accused refused to exercise his right of questioning and

11 criticised assigned counsel.

12 This matter was repeated with the next three witnesses; Mr. Keith,

13 Mr. Hutsch, and Ms. Kanelli.

14 During this time we had made ourselves available to the accused at

15 any time for him to meet with us and cooperate. There was one occasion

16 when we telephoned the UN Detention Centre and indeed attended the

17 detention centre that afternoon to be available if he wished to see us,

18 and it was quite clear he did not.

19 We set about the task of being involved in putting into some sort

20 of order the Defence's case, and I proceeded to go through the Rule 65 ter

21 filing of some 1.631 witnesses in an attempt to try and understand the

22 strategy and the issues to be presented as well as divide the witnesses

23 into groups for the indictment - Kosovo, Croatia and Bosnia - in

24 accordance with a direction of the Trial Chamber that the Defence case

25 should be presented in an orderly matter, concentrating on each section of

Page 33197

1 the indictment separately, obviously understanding that there would be

2 crossover witnesses.

3 It was quite clear that that task of attempting to have a clear

4 Defence that could fit into the time allocated of 150 days for the Defence

5 case was going to be impossible from the base witness list of over 1.600,

6 and we decided to divide the case into three, allocating what we could

7 think of as being a 50-day strategy for each section of the indictment.

8 To do that, we requested from the legal associate to the accused,

9 Mr. Tomanovic, his assistance, which he gave on the instructions of the

10 accused, which was the -- a list of 140 priority witnesses for the Kosovo

11 phase of the case. And the Trial Chamber will be familiar with that

12 document, as it has been reproduced several times since the end of 28th of

13 September when we have filed each week an update of the developments in

14 the Defence case to keep the Trial Chamber informed as to how our role was

15 progressing as assigned counsel.

16 The provision of that list on the 20th of September in a way gave

17 us some hope that bridges could be built here and a Defence case could

18 perhaps be presented in a mutual fashion between the accused and us.

19 Drawing on my experience as amicus curiae, where the accused rejected us

20 right at the start of the trial proceedings but we were able to build up a

21 cordial but informal relationship during the conduct of the Prosecution

22 case, we had hope that we might be able to assist the Court in getting the

23 Defence case presented in a way that was in the best interests of the

24 accused.

25 Meanwhile, our filings were made appealing our appointment to the

Page 33198

1 Appeals Chamber, and we responded to motions by the Prosecution, and we

2 embarked on a -- on an exercise of trying to contact as many witnesses as

3 possible to see if they would cooperate with us and maybe we could get to

4 a position which would enable us to, if we were lucky, have the accused

5 cooperate with us as well. It was quite clear that there was a wholesale

6 reject, in fact, by witnesses of us performing our function and that we

7 were building up to a situation where our functioning as counsel, assigned

8 counsel for the Defence, was becoming impossible.

9 During our case preparations, much research was undertaken on the

10 identity of witnesses, the means of contacting them, the putting into

11 shape a strategy for the Kosovo section of the indictment based on the 140

12 priority witnesses identified to us, and all the while hoping that in some

13 way we could assist the Court by fulfilling our function.

14 The fourth and fifth witnesses were called, and by that stage we

15 had really run aground and run out of immediately available witnesses.

16 Furthermore, one witness whom we had available, a man called Mr. Hensch,

17 the Court will remember this, was nearby in the jurisdiction, to the

18 jurisdiction, and we were going to call him as a witness but we received

19 an instruction not to do so, which came from the accused.

20 The fifth witness who was called, Ms. Kanelli, at the end of my

21 examination of her, the accused asked a single question, which I don't

22 think anyone else understood, but the witness appeared to understand, as

23 to whether the case had properly been dealt with by me. "Has everything

24 been covered," I think was the phrase that was used, that was discussed,

25 and she said no. I saw her afterwards, and she apologised for what had

Page 33199

1 taken place. I knew that we were then running into areas of conflict that

2 was making my particular task impossible.

3 Meanwhile, the Appeals Chamber had indicated an early and

4 expedited hearing of this matter, including an opportunity for the accused

5 to orally make his representations to the Tribunal, and that proceeding

6 took place. And I had to refer to the conflict that assigned counsel was

7 in with this accused, and those are detailed in the transcripts that have

8 been supplied, as well as the terms of what was said.

9 During the course of those five witness, we'd been called on two

10 occasions. The prosecution, our professionalism had been criticised, and

11 we were, in respect of what would have been hoped to have been achieved by

12 assigned counsel, which includes a number of duties such as to

13 communicate, discuss a case, we were in a position where we had crossed

14 the rubicon and there was no going back. The relationship between us and

15 the accused had completely foundered and was not in any way in the future,

16 in our view, going to be restored to a place that it had been at prior to

17 the assignment.

18 As a result of that, we made our filing after the Appeals Chamber

19 hearing. We viewed this as being a distinct issue from that of the

20 assignment, and it dealt with our personal position and what we had

21 found.

22 JUDGE ROBINSON: Mr. Kay, you must have anticipated

23 non-cooperation or the possibility of non-cooperation and non-instruction

24 from the accused. It couldn't have come as a surprise to you. So I take

25 it, then, it is -- is it the reality of the non-cooperation and the lack

Page 33200

1 of instructions that has created the problem? It seems to me that you

2 can't say that this was not envisaged.

3 MR. KAY: We had predicted it, as the Court has been referred to

4 in the filings. And the Prosecution take exception to us, when we were

5 amicus, notifying in our filings as far as possible what we could foresee

6 happening.

7 We had drawn the Court in legal argument, the Court's attention to

8 the provisions of the Code of Conduct. I remember having a discussion

9 with Judge Bonomy about it as it being something that we had to pay regard

10 to. But the position was then that you never know in a criminal case what

11 is going to happen. You can't always say it will never work. It may have

12 worked. And we tried, in a spirit of cooperation. All services within

13 this Court were directed in that direction. Everyone was anxiously

14 looking to see if there was to be a cooperation and whether we could make

15 something work.

16 JUDGE ROBINSON: Are you saying, then, that you accepted the

17 assignment on the basis that there would be cooperation, although it was

18 clearly envisaged that there would be lack of cooperation and lack of

19 instructions?

20 MR. KAY: Yes. It was done in good faith both ways. It was done

21 in -- there was great pressure on us to accept the assignment. The Court

22 will remember a deadline by 1.00 on the 3rd of September.

23 We felt with our history, knowledge of the case, a sense of

24 professional duty and obligation to fulfil that role. If we had not

25 attempted to do it, the Court would have been faced with bringing in a new

Page 33201

1 assigned counsel who may not have viewed the case from our perspective,

2 having been involved in it right from the beginning, who may not have

3 taken an appeal against the assignment in the first place. We felt that

4 we were in the position to act in the accused's best interests to try and

5 make the Defence case work. And we were aware that it might -- it might

6 not succeed, but we were hopeful.

7 JUDGE ROBINSON: But there was nothing in the assignment to you

8 and your acceptance of it which would have indicated this hypothesis that

9 you accepted the assignment on the basis that you would be able to have a

10 good working relationship with the accused. It was clearly envisaged that

11 there would be -- that there might be lack of cooperation and lack of

12 instructions. I mean, in fact the order which I made at the end indicated

13 that the modalities order would be made broadly, following the very

14 outline that you yourself had presented, paragraphs 4, 5, and 6 of which

15 all anticipated the possibility of lack of cooperation, lack of

16 instructions.

17 MR. KAY: I will tell the Trial Chamber what the problem was: You

18 made me go first. And if you had permitted the accused to go first, I

19 think I could have made this work. And it came as a complete shock to us

20 when you reversed what we thought and what we had argued for, was that he

21 would go first.

22 JUDGE ROBINSON: That's the essential problem.

23 MR. KAY: That has caused the foundering.

24 JUDGE ROBINSON: Well, then thankfully we have a system in the

25 Tribunal which respects the rule of law. You appealed that, and that has

Page 33202

1 now been corrected.

2 MR. KAY: Yes. On the 7th of September, the Trial Chamber will

3 remember I stood up and asked for the accused to go first. We were very

4 fearful of that order on modalities, and I reopened the issue again. I

5 argued, on the 7th of September, against that which had been ordered. And

6 it may well have been then that we could have got it to work.

7 We've now moved on such a distance that problems have arisen which

8 has caused an issue between us and the accused on a professional basis.

9 And then when you examine it -- sorry, My Lord.

10 JUDGE ROBINSON: You just said that the essential problem was the

11 sequence.

12 MR. KAY: Yes.

13 JUDGE ROBINSON: And that has now been corrected.

14 MR. KAY: Sometimes --

15 JUDGE ROBINSON: So what now then is the basis for your

16 application?

17 MR. KAY: I don't know whether you -- did you want me to go -- I

18 mean, our basis is the position that we've had to face in a breakdown of

19 the relations with the accused that I feel, having been accused of

20 unprofessional conduct. The accused has filed a complaint against me with

21 the Dutch Bar, citing the jurisdiction relating to --

22 JUDGE ROBINSON: The accused has also accused me of taking

23 instructions.

24 MR. KAY: It's very different for Your Honour. I am here in a

25 position where there's trust. To view our positions in a -- in the same

Page 33203

1 way is -- is, in my submission, wrong. We are here in a particular

2 capacity, and in attempting to fulfil a role, there is a great issue of

3 trust and confidence. Sometimes you can get a bad order, and I'll put it

4 like that, but you can still make it work. We've all had experiences of

5 this, Judges making orders, and you work within it and you can make it

6 work.

7 We felt that we could still have a go at making it work, but when

8 the Court refused to allow him to go first, when the Court refused my

9 application, I think on the 15th of September, to stay the proceedings

10 until the Appeals Chamber had heard the matter, that was a last ditch

11 attempt by us to try and stop eroding any further the relationship and the

12 position that we were in. But as I said, things have developed and moved

13 on from there. And although we attempted and we hoped that we could make

14 things work, we were presented with a -- with a modality that undermined

15 us. It may well have been that the accused, having gone through the whole

16 process of the hearings concerning whether he was assigned counsel or had

17 stand-by counsel, whether he represented himself, having gone through that

18 whole process, we may have been in a position to influence the structure

19 of his case, help those helping him.

20 We had seen ourselves as providing at that stage something that

21 could have been a valuable service in assisting in the presentation of the

22 Defence case, but it would have required the accused being in the driving

23 seat and being able to deal with his witnesses in his manner and then us

24 maybe assisting in questioning but using our tact and discretion in the

25 performance of our role in his best interests, to help him with his

Page 33204

1 defence case.

2 JUDGE BONOMY: Mr. Kay, what do you mean by paragraph 5 of the

3 document you presented to us, which said: "In the event of the failure of

4 the accused or any persons acting on his behalf cooperating with assigned

5 counsel in the production and calling of witnesses identified by the

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

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

8 case"?

9 MR. KAY: That was at a stage when we were very much at the Last

10 Gasp Saloon concerning the rights of this accused to represent himself.

11 And if you notice in paragraph 3 --

12 JUDGE BONOMY: No. The question is what did you mean by that

13 paragraph?

14 MR. KAY: There could have been circumstances in which the Court

15 might have said there were conditions that we could have called witnesses

16 on his behalf. We had discussed this in the hearing. I remember

17 suggesting allow him to represent himself, it's his decision. If he's

18 ill, allow a stand-by counsel to call witnesses on his behalf.

19 At that stage, it may have been that that kind of order could have

20 worked.

21 JUDGE BONOMY: But that particular paragraph, Mr. Kay, envisages

22 the most extreme failure in cooperation. And you produced it.

23 MR. KAY: It depends how it would have arisen. I was asked at the

24 last minute to draft modalities that I had been arguing against in the

25 first place. So I was very much influenced by the conditions of the

Page 33205

1 argument that the Trial Chamber was advancing on these issues. I couldn't

2 have written my own document, which would have been, "Let him conduct his

3 case and assigned counsel does nothing." It wouldn't have been accepted.

4 We weren't in that territory on the 3rd and 2nd of September.

5 JUDGE BONOMY: I'm afraid I'm not understanding the submission

6 you're making at all.

7 MR. KAY: Oh, I'm sorry.

8 JUDGE BONOMY: This is what you indicate was one means of

9 implementing the assignation or the assignment of counsel, and you have

10 envisaged in producing this document that counsel might get no cooperation

11 from the accused or those who work with him. And you must in these

12 circumstances have known that the appointment could involve a requirement

13 on you to ask questions initially, examine witnesses, and indeed examine

14 witnesses that you'd called yourself, witnesses that were not even

15 included in the initial 1.631 witnesses.

16 MR. KAY: We had raised the issue that he should call his

17 witnesses first. This Court was looking at it very much as a carrot and

18 stick operation. I remember His Honour Judge Kwon asking the question,

19 "What about stand-by counsel, Mr. Milosevic?" Putting that forward as a

20 way of perhaps encouraging a stand-by position. We did not know what Your

21 Honours were going to decide on the matter. But on that matter, we had

22 wanted the accused to present his evidence first. That is why we made the

23 application. You refused that application. We felt that that would have

24 been a way of making this case work. Who knows what would have built up

25 over the six months or three months between us and him. And we approached

Page 33206

1 that in good faith, and we were hoping that we might be able to help him

2 in his best interests in the presentation of his case. At the -- what we

3 have tried to do doesn't work, and we are telling you that that is now in

4 breach of the Code.

5 So it's not a question of blaming people here. It's a question of

6 recognising that which has happened and which causes the Court and us

7 difficulty. It's not an issue here of blame. We were attempting to make

8 this case work, the Trial Chamber wanted it to work, and we put ourselves

9 in a position to try and put a proper effect into that order.

10 We had discussed the issue of instructions in argument before.

11 The Trial Chamber knew our position in relation -- we'd raised all these

12 issues as to instructions, dealing with witnesses, all those difficulties,

13 the Code of Conduct. We had alerted the Trial Chamber to that.

14 The order on modalities that was eventually drafted put us in the

15 driving seat instead of him, and it put us in the position of having to

16 get the witnesses instead of him. If he had been going first and

17 producing the witnesses and dealing with the issues of law as they arose,

18 as our paragraph 2 gave him full responsibility, it may well have been

19 possible, but it wasn't followed, for us to have been able to continue

20 this case and develop and build a relationship, which often happens in a

21 criminal trial. That's what we were hoping to do.

22 We have been now forced to recognise the position, with

23 non-cooperation of witnesses, the accused's position over the matter,

24 which has been trenchantly put, as well as in our argument on his behalf,

25 which, if you like, lit the blue-touch paper when we were in the Appeals

Page 33207

1 Chamber and we had to say what we said, that we didn't represent him, we

2 didn't put his Defence case, it wasn't our Defence, it was his Defence,

3 and that he should have his right restored to him.

4 The problem now is that us being in the position we're in after

5 that two-month period, we are in professional difficulty that is open to

6 criticism.

7 JUDGE ROBINSON: I'm not sure that I agree on that. Where an

8 accused person unilaterally takes action that destroys the trust between

9 himself and his counsel through lack of cooperation and otherwise, I am

10 not sure, Mr. Kay, that the jurisprudence is that there is any breach of

11 the code in those circumstances.

12 If you read Blagojevic, there are paragraphs in it in which the

13 Appeals Chamber affirmed certain dicta from the Trial Chamber which

14 clearly suggests that there is no breach in those circumstances.

15 MR. KAY: If we look at the law on the subject and see what

16 conflict we're in, our submission is we are in a very difficulty -- great

17 difficulty.

18 I appreciate, and I think I'm right in saying this, that the Trial

19 Chamber is going to be looking at the modalities again, that the issue

20 concerning the case strategy and the running of the case is going to be

21 back with the accused in accordance with the ruling in paragraph 20 by the

22 Appeals Chamber.

23 We now, if you consider our position under Article 10, have to

24 preserve our own integrity and that of the legal profession as a whole.

25 We are now forced to be the subject of a complaint to a Bar council which

Page 33208

1 has claimed jurisdiction over the matter, which is a matter of great

2 concern to us; criticism by the accused over our role in the case, the

3 description of being a prosecutor, none of which happened when we were

4 amicus curiae.

5 JUDGE BONOMY: But, Mr. Kay, you're rather assuming that there's

6 any substance to the complaint. I mean, the complaint is -- from -- is it

7 from an attorney here representing Mr. Milosevic?

8 MR. KAY: Yes.

9 JUDGE BONOMY: And he says he's acting on behalf of Mr. Milosevic.

10 MR. KAY: Yes.

11 JUDGE BONOMY: Does he say he's acting in this case on behalf of

12 Mr. Milosevic?

13 MR. KAY: He has power of attorney.

14 JUDGE BONOMY: For this case?

15 MR. KAY: For this case. He filed the complaint against the

16 amicus curiae Wladimiroff, and Mr. Wladimiroff was subject to the

17 proceedings, disciplinary proceedings, under the Dutch Bar. So the Trial

18 Chamber on that occasion, given that issue and that conflict, said justice

19 must seen to be done. And that's the territory we're in now.

20 JUDGE BONOMY: Let me be clear first of all. Are you saying that

21 a Dutch attorney --

22 MR. KAY: Yes.

23 JUDGE BONOMY: -- has a power of attorney to act for Mr. Milosevic

24 in the present trial?

25 MR. KAY: In this -- sorry. There's a misunderstanding. To

Page 33209

1 appear in this --


3 MR. KAY: -- these proceedings. I doubt it. I don't know, I've

4 never seen that.

5 JUDGE BONOMY: Where is the difficulty that is caused by the fact

6 that a complaint is made? We're all often subject to complaints, whether

7 formal or informal, about things that are done. Appeals are taken against

8 Judges' decisions. That's a form of complaint. The routine method of

9 dealing with a dissatisfaction over a representative, either a counsel or

10 solicitor, is to make a complaint. That doesn't mean to say there's any

11 substance in it, that it's right. So why is that at all relevant to what

12 we are considering?

13 MR. KAY: Because your relationship as a Judge is very different

14 with the accused. You are in a position of control. We have a duty of

15 loyalty. We have a duty to communicate. We have a duty to understand the

16 objectives of Defence. It is a close fiduciary duty, and it is very

17 important that that be recognised.

18 JUDGE BONOMY: And is the complaint -- sorry. Is the complaint

19 about the way in which the -- these trial proceedings are being conducted

20 by you?

21 MR. KAY: Yes. I received a communication yesterday - it's dated

22 the 3rd of November - from the Dutch Bar, referring to the Appeals Chamber

23 hearing and the decision made by the Appeals Chamber on the 1st of

24 November and responding that the person writing the letter could see no

25 further ground in the complaint but giving the opportunity to the

Page 33210

1 particular attorney to make representations further on the matter. So

2 thus far, thus good on that issue.

3 JUDGE BONOMY: And what jurisdiction do the Dutch Bar have over

4 you?

5 MR. KAY: The jurisdiction is a European jurisdiction, that under

6 the European legislation, visiting lawyers from fellow Member States of

7 the European Union practising within the Dutch courts are subject to the

8 Dutch disciplinary code.

9 If you look at the host agreement, Article 19, paragraph 3, there

10 appears to be an exception relating to disciplinary proceedings against

11 counsel as not being exempt from the host agreement. And that is why the

12 dean of The Hague Bar - it's not someone I know practising in these Courts

13 - but the dean of The Hague Bar stated originally in correspondence -- or

14 accepted jurisdiction of the matter, citing as well the example of

15 Mr. Wladimiroff and how they accepted jurisdiction in relation to that

16 matter against him. Now, it may be that there is a lacuna here.

17 JUDGE BONOMY: But he -- he would be a member of the Bar here.

18 MR. KAY: Yes. But the point is --

19 JUDGE BONOMY: Is that not the difference?

20 MR. KAY: But we are subject to the European regulations, that

21 lawyers visiting -- I don't believe it's founded at all, Your Honour, and

22 that's not the -- I'm not saying it is founded, and it's not actually the

23 point. The point is -- and I'm going to fight that tooth and nail when we

24 get time to turn our attention to it.

25 JUDGE BONOMY: But we have to ask ourselves the question, Mr. Kay,

Page 33211

1 who's running this Court? What you're suggesting is that any mischievous

2 complaint that might be made might be a reason for disrupting the

3 proceedings.

4 MR. KAY: No. What we have here is a -- a history, something that

5 has developed over the last eight weeks, and I am -- I'm not covering

6 things up. I'm being transparent, and I don't think that we should be

7 criticised for this. I think that the Trial Chamber should be pleased,

8 and the Prosecution, that we have raised ethical issues on the role of

9 assigned counsel and our personal positions that enable them to consider

10 judicially what is right and appropriate. And the arguments I advance are

11 as a result of reflection of our position, consideration of justice being

12 seen to be done, and the Court being able to understand and recognise our

13 position.

14 The Court must realise the proceedings -- of course you realise,

15 that came out wrong.

16 What happens in here is -- goes around the world and is observed

17 very, very closely and attentively, and people ask the question, "Well,

18 what did you do? Why did you do that?" We constantly get matters and

19 issues referred to us. And if we were less than transparent about this

20 matter, it would not reflect well on this Tribunal. And what we have set

21 out here is a history of our period as assigned counsel, the several

22 matters that arose and occurred that we feel, having considered them, that

23 if this accused wanted to use assigned counsel for any particular reason,

24 if he wanted to, if in six months or one year he wanted to, we feel that

25 the matters that we have raised, it could be said, would have militated

Page 33212

1 against that position.

2 The more neutral role that we had as amicus curiae did not cause

3 that conflict, because our role was one of assistance to the Trial

4 Chamber, assistance to the accused, and it did not have the same fiduciary

5 duty that the client/attorney relationship has.

6 Judge Kwon, sorry.

7 JUDGE KWON: Let me put to you a very simple and pragmatic

8 question at this stage. Before that, I have to mention for the record

9 that I don't remember I mentioned the stand-by counsel to Mr. Milosevic.

10 What I said, as I remember, was that I recommended him to invite his

11 associate to come into the courtroom.

12 And my question is whether the relation -- your relation with the

13 accused, is that not the kind of one that can be restored now we have the

14 Appeals Chamber decision and setting aside the issue of paragraph 20,

15 whether your relation can be restored or not? Can I hear from you on that

16 matter.

17 MR. KAY: It's going to be you'll have to ask him that, because we

18 would always seek to make our services and expertise available. That's

19 what we've been doing for the last three years. And in many respects, our

20 concern for our position now is that our previous status, if you like, or

21 the way we were regarded has been undermined.

22 JUDGE KWON: Then is it your position that if Mr. Milosevic does

23 not object to you, your existence or your role, then you are ready to

24 withdraw your motion for withdrawal?

25 MR. KAY: Well, we would have to be acting explicitly on his word,

Page 33213

1 then, and that would be something that he would have to engage in. I

2 think Your Honour's got to a very sharp point on the issue.

3 We are having to present this half in the abstract because we've

4 got no instructions, we've got no information. We have just seen that we

5 are subject to criticism that make it difficult for us to perform the

6 role.

7 If -- if they were to be restored, it would have to be through the

8 conduct of Mr. Milosevic. And I think it would be wrong for me to stand

9 here and say I think I can work on this and make it restored, because the

10 evidence now I've been able to assess and receive the experiences that we

11 feel this matter should be considered in the way that it is being raised.

12 But, yes, if restoration was able to take place, then obviously

13 that would, so to speak, be a cleaning of the slate. You can often have

14 that with a client in a case. There may be criticism over something, but

15 then you deal with that. But this has been a different form of criticism.

16 It has been one of attack rather than criticism. It has been one of

17 alleging professional misconduct, not calling evidence that should have

18 been called, which we have not appreciated, and one has to consider one's

19 professional reputation in this matter.

20 Pointed out to me, because I was going through the summary of the

21 breaches that have been alleged, that we set these out in the last

22 paragraph, 56, of our motion filed yesterday. Very different from the

23 Blagojevic situation which we cited earlier.

24 Some of these go to the role of assigned counsel, and in many

25 respects would reflect on any future modalities. It is the professional

Page 33214

1 criticism that can be the base point, if you like, of the whole issue.

2 I don't want to stand here for an accused and seek to represent

3 him and his interests if he's going to think I'm unprofessional, if I'm no

4 good at my job, he doesn't want my expertise or anyone associated with me,

5 and he doesn't want the benefit of our advice. And to think that you may

6 turn to me and ask me for advice and representation on matters, not as an

7 amicus here, which is distinct, but in the position as an assigned

8 counsel. And my own standing is the subject of dispute by the accused.

9 JUDGE BONOMY: So does it boil down to paragraph 4, or point

10 number 4?

11 MR. KAY: Yes. After you take out the modalities issue, I think

12 Your Honour Judge Bonomy has that right as the base point. Once you take

13 out the modalities issues --

14 JUDGE BONOMY: Mr. Kay, looking at 3, it may be that I have, on

15 this one area, some advantage over others here in having had to read

16 everything that's happened in this case fairly recently, and it seems to

17 me that there's loads of indications in the way in which the case has been

18 conducted by Mr. Milosevic about the lines that ought to be pursued by any

19 counsel representing him and his -- and presenting his Defence. I quite

20 accept that there may be doubt about the relevance here of many of the

21 things that are raised, but it's clear that there are many which are

22 directly relevant and relate to subjects on which it would be important

23 for evidence to be led, and they're identifiable by anyone reading the

24 documents.

25 So I have difficulty accepting that as an example, that's point 3,

Page 33215

1 that counsel would be able to identify how to go about the best

2 presentation of the case.

3 MR. KAY: To protect the accused's best interests. What we've

4 learnt is, in our research and experience, that he views the case probably

5 very differently from the way that we would view it, and he is the

6 guardian of his best interests.

7 In a way, we're getting back to how assigned counsel should work

8 and the problems over instructions.

9 JUDGE BONOMY: His best interest can plainly be assessed

10 objectively in the situation in which you find yourself. It's not a

11 subjective matter when counsel has been assigned to a -- rely exclusively

12 on what the accused perceives as his best interests.

13 MR. KAY: It -- it goes to this: I mean, counsel owes a duty of

14 loyalty to the client. If we go to our Article 14. Counsel owes a duty

15 of loyalty to a client. If he's going in one direction, you want to go in

16 another, you have no choice.

17 If our plight is considered, counsel shall advise and represent a

18 client until counsel's representation is terminated; when representing a

19 client, counsel shall abide by the client's decisions concerning the

20 objectives of representation.

21 We discussed this in oral argument on the 2nd of September.

22 Consultation with the client about the means by which those objectives are

23 to be pursued, seek or accept only those instructions which emanate from

24 the client.

25 There is nothing here that entitles you, once you've reached a

Page 33216

1 certain position, to start to do your own case. That is the trouble that

2 we have fallen into. We can --

3 JUDGE ROBINSON: Mr. Kay, Article 8(B) of the code.

4 MR. KAY: Yes.

5 JUDGE ROBINSON: Article 8(B).

6 MR. KAY: Yes.

7 JUDGE ROBINSON: Which says that counsel shall consult with a

8 client about the means by which those objectives are to be pursued but is

9 not bound by the client's decision.

10 MR. KAY: Yes.

11 JUDGE ROBINSON: Moreover, what I said to you earlier ought to be

12 considered. Every single one of the grounds set out in paragraph 56

13 results from the refusal of the accused to communicate with you or to

14 instruct you, and you have to consider what the jurisprudence is in those

15 circumstances. You haven't addressed that, and I'd like the Prosecution

16 to address that arising out of Blagojevic. It is not clear at all to me

17 that the jurisprudence of this Tribunal is that in those circumstances

18 there is any breach of the code. So it's not appropriate simply to cite

19 provisions in the code without reference to case law which is

20 interpretative of those provisions.

21 Another issue that worries me, Mr. Kay, about the position you're

22 taking is that the Appeals Chamber has now made an order in two parts. In

23 the first part, it affirms the right to assign counsel to the accused.

24 The second part, it reversed the modalities.

25 If it is right to assign counsel and counsel has been assigned and

Page 33217

1 the accused refuses to cooperate with that assigned counsel, isn't the

2 effect of your submission then that no counsel can effectively be assigned

3 to the accused once he refuses to cooperate, so that the Appeals Chamber's

4 decision in its first part would simply not be implementable.

5 MR. KAY: Yes. The problem is that you've got to abide by the

6 client's decisions, and if his decision is not to instruct you and you do

7 nothing in his case --

8 JUDGE ROBINSON: That is not the case law, as I have been trying

9 to tell you. Mr. Kay, it is not the case law. You are reading the code

10 and the provisions in vacuum. They don't exist in a vacuum, as you well

11 know. You have to read them and interpret them against the background of

12 the cases.

13 MR. KAY: Blagojevic was a very different case, Your Honours, than

14 this. Entirely different case on the facts. I don't think a single

15 commentator, legal commentator, would put these cases on the same platform

16 as to how they arose.

17 JUDGE BONOMY: Is it not correct, though, to say, Mr. Kay, that in

18 Blagojevic counsel was regularly subjected to criticism?

19 MR. KAY: The defendant filed a motion to have his lawyers

20 withdrawn and replaced, alleging deficiencies in the quality of legal

21 assistance they provided to him. No factual support was found for those

22 allegations, and indeed they had had 350 hours of consultation between

23 counsel and the accused, and he raised the issue at a late stage, after

24 that period of consultation.

25 He based his motion on a personal preference over who was to

Page 33218

1 represent him, and the Registrar could see no purpose in allowing that

2 facility, the accused having had a relationship with the attorney, the

3 issue arising in a late stage, and then him saying he wanted another

4 counsel instead of the team that had been assigned to him and who had

5 worked on his case and presented it.

6 We're not saying you can't assign counsel, as I've -- as I've

7 said. It's what you ask them to do, which is a separate matter, really,

8 from what we're dealing with at the moment, which was the issue of our

9 application to withdraw. That's rather more the modalities.

10 JUDGE BONOMY: Is it really a question of what you ask counsel to

11 do? Is it not a question of what the accused decides to do, the way

12 you're putting it? Even if the order had been made in the form that you

13 sought or that you now say it would have been more appropriate, what

14 happens if it's not implemented?

15 MR. KAY: If the counsel just doesn't follow the Trial Chamber's

16 modalities.

17 JUDGE BONOMY: No. If the accused decides he's not going first if

18 somebody's following him second.

19 MR. KAY: Yes. If the accused decides because he has that

20 particular role in the case and he wishes to represent himself, his

21 instructions in relation to the witness and the objectives of the case

22 must be paramount. And that again is going back to the arguments that we

23 were making on the whole issue of the assignment of counsel.

24 JUDGE BONOMY: But that simply means that it's up to the accused

25 to decide whether he has counsel or not, and the Court is powerless

Page 33219

1 against his extreme actions to impose counsel.

2 MR. KAY: Well, we've -- you can assign counsel, but it's what you

3 ask them to do, and if they're in conflict with the Code of Conduct, which

4 is not the same position that we have here as in the Blagojevic case where

5 it is quite clear now where we stand, at the start of the Defence case,

6 over who is going to be in possession of the objectives of the case.

7 If we have a Code of Conduct for Defence counsel which has been

8 worked out with the Judges and all parties, what is the point if it is

9 going to be, at the convenience, almost, of the Court, overwritten. This

10 Code of Conduct actually tells us to stand firm in relation to these

11 issues, which is exactly what we're -- we are doing, because in making us

12 his assigned counsel, we have a duty of loyalty to him. If he expresses,

13 "I don't want you to do anything," that is an instruction that you have to

14 follow, because that is what the Code of Conduct requires of you. That is

15 what all the international Codes of Conduct require you to follow.

16 And we have cited not only the Code of Conduct of this Tribunal,

17 also the Code of Conduct from the English Bar, the various papers deriving

18 from international bodies, such as the IBA. And I was actually on the

19 working party for the draft Code of Conduct for counsel for the ICC filed

20 -- created by the IBA.

21 All these duties of counsel -- it's no one else, it's just

22 counsel, all these duties require counsel to follow the accused in the

23 case in his objectives and what he wants done. And if that is what he

24 wants done, that is his responsibility. All of the international

25 provisions state that quite clearly, and this Tribunal has to pay regard

Page 33220

1 to what also is out there, what also --

2 JUDGE ROBINSON: No. I'm going to tell you what the Tribunal has

3 to pay regard to, and I think this is the fundamental flaw in your

4 argument. All of those codes which are national codes are subject to our

5 Statute and to customary international law. The fundamental duty of the

6 Chamber is to ensure a fair trial, and every single provision in all of

7 those codes is subject to that provision. That is the fundamental

8 weakness in your argument. They are trumped by the duty and the

9 obligation of the Trial Chamber to ensure a fair trial.

10 MR. KAY: With respect, Your Honour, they're not trumped by that.

11 They are part of the fairness of the trial, because they govern and

12 regulate the rights between the accused -- not between the accused and the

13 Judges but between the accused and counsel.

14 JUDGE ROBINSON: They are to be interpreted and applied subject to

15 the customary international law obligation of a trial court to ensure a

16 fair trial. They are to be interpreted in that context. That is a

17 contextual interpretation that is called for. So don't cite them as

18 though they exist in a vacuum. They do not exist in a vacuum.

19 MR. KAY: They exist, Your Honour, as in any court anywhere, as

20 the duties of counsel. Any court anywhere has to provide for a fair

21 trial.

22 JUDGE ROBINSON: Mr. Kay, I'll tell you why I think you're wrong.

23 You're wrong because it is competent for a Trial Chamber to assign

24 counsel. You're wrong if you say that if you acknowledge that competence

25 but then go on to say that it is not implementable because an accused

Page 33221

1 person is going to take a particular position not to instruct or

2 communicate with his counsel, then you nullify that competence if that is

3 correct. In that case, that makes total nonsense of what the Appeals

4 Chamber has said, which is that it is competent to assign counsel.

5 We can assign counsel and follow every single directive of the

6 Appeals Chamber, and the accused or an accused can still withhold

7 communication with his counsel. What then is the position? What then is

8 -- this is what I'm asking you. What then is the position?

9 MR. KAY: And I'll answer it, Your Honour. This is the -- this is

10 the position: This is the extreme end of the scale. Legal aid counsel

11 are all assigned counsel throughout every jurisdiction. In our own

12 jurisdictions, when we get a murder brief, whatever court, we are assigned

13 as counsel. It generally works; 99.9 per cent of the time it works.

14 We are at the extreme end of the scale here, which does not

15 nullify the principle of assigned counsel. That can still remain, and the

16 Court may choose to implement that form of assignment, but it is what they

17 do which is at issue.

18 You are wanting a lawyer to come in here and do things that the

19 accused doesn't want the lawyer assigned to him to do, and every code,

20 which is customary international law, says that is wrong and that we

21 should stand against that.

22 JUDGE ROBINSON: Mr. Kay, we now have a ruling of the Appeals

23 Chamber which the Trial Chamber is obliged to follow and implement, and

24 the Appeals Chamber has said the accused is to examine his witnesses

25 first. He is to brief his witnesses. He is to prepare them. He is to

Page 33222

1 make submissions on law. He is to make a closing address. It puts him at

2 exactly the same position where he was before. But they also said that

3 there is a right to assign counsel. The two things have to coalesce. The

4 two things must run on parallel lines.

5 MR. KAY: I haven't disagreed with that. And the Appeals Chamber

6 say that, "If Milosevic's health problems re-surface with sufficient

7 gravity, however, the presence of assigned counsel will enable the trial

8 to continue even if Milosevic is temporarily unable to participate."

9 They haven't considered the Code of Conduct. They don't refer to

10 the Code of Conduct. The argument before them was of the assignment in

11 principle, which the accused wanted to be taken in principle. That is why

12 these two issues are distinct.

13 We were arguing against the fact of the assignment. That we took.

14 Your order of the 3rd of September. The Appeals Chamber was not

15 considering the issue of how it was going to work in the future. That is

16 something that is an obiter dicta concerning how they might see it

17 working. They haven't referred to the Code of Conduct. We weren't

18 arguing at the Appeals Chamber point what had happened from the 3rd of

19 September onwards. The Prosecution didn't want us to have included within

20 the ambit of the appeal the issue of the modalities.

21 JUDGE BONOMY: You did include it, though. You did include it.

22 MR. KAY: I did include it, but they argued against it. That is

23 how narrow --

24 JUDGE BONOMY: Yes, but it was the basis upon which the appeal was

25 successful.

Page 33223

1 MR. KAY: That is how narrow --

2 JUDGE BONOMY: It's the basis on which your appeal was successful,

3 was it not?

4 MR. KAY: The workings of it --

5 JUDGE BONOMY: Is there not an answer to that question?

6 MR. KAY: Well, yes.

7 JUDGE BONOMY: Thank you.

8 MR. KAY: But... That's the danger of approaching things this

9 way. It's a yes, but. It wasn't on offer and discussed before the

10 Appeals Chamber on the 3rd of September because it wasn't part of the

11 appeal. We didn't refer to all the issues.

12 JUDGE ROBINSON: So all of the Appeals Chamber's conclusions on

13 that part of the appeal are obiter?

14 MR. KAY: The whole issue is up for grabs again in front of a

15 Trial Chamber in many respects, because it's referred back to you.

16 "Reversed in part, the case is remanded for further proceedings not

17 inconsistent with this decision," which refers to the issue of the

18 modalities. But you would be able to say, "Well, we won't proceed now

19 with assigned counsel. We'll take some other route in this case." You're

20 not bound to follow that. You could make another order here in dealing

21 with the future conduct of the trial. That is open to you. What was

22 appealed and what the interlocutory decision concerned was that particular

23 decision on the 3rd of September.

24 The Trial Chamber is able, as what it says, "The precise point at

25 which reshuffling of trial roles should occur will be up to the Trial

Page 33224

1 Chamber." The whole thing -- the whole thing is open to review.

2 JUDGE ROBINSON: When you say the whole thing, that surely is an

3 exaggeration, because they have said clearly what the accused should be

4 allowed to do. He is to go first. He is to be able to prepare his

5 witnesses. He is to be able to make legal submissions. He is to be able

6 to make a closing address. Those were the essential issues relating to

7 modalities.

8 MR. KAY: They have kept your decision to assign counsel, but you

9 could -- you could say, "Well, we prefer a stand-by counsel, actually,

10 having considered this. We think that that is more appropriate."

11 They have affirmed your decision on the 3rd of September to have

12 an assigned counsel but overturned the modalities. But --

13 JUDGE BONOMY: Mr. Kay, they plainly haven't done that. The words

14 of paragraph 19 start: "In light of the foregoing discussion, the Appeals

15 Chamber affirms the Trial Chamber's imposition of Defence counsel," not

16 their right to impose Defence counsel, "but reverses its order on

17 modalities."

18 MR. KAY: Yes, but you are able -- you have been affirmed in the

19 order that you have made, which was under contest between the parties, but

20 you don't have to stay with that order if you don't want to. If you felt

21 it was more appropriate to move back to having an amicus, you could do so.

22 JUDGE BONOMY: But we can't. There are two sides to this case.

23 There's a Prosecution as well as a Defence. We can't just unilaterally

24 decide to do something when a decision we've already made has been

25 affirmed by the Appeals Chamber.

Page 33225

1 MR. KAY: Well, in our submission, you are entitled to review, as

2 you can review at any stage, decisions that you have -- you have taken.

3 The Prosecution constantly in this case sought to review decisions. Judge

4 Robinson has mentioned it frequently in the last three years.

5 We hesitate to proceed in that way, but if it was felt to have a

6 far better chance of succeeding in producing a fair trial, surely no one

7 will stand by and criticise you for implementing something that might have

8 a more fair application to the proceedings.


10 MR. KAY: You wouldn't be arguing with me for a start.

11 JUDGE ROBINSON: Mr. Kay, I understand we have to adjourn now. We

12 will resume tomorrow morning at 9.00 a.m. Thank you.

13 --- Whereupon the hearing adjourned at 1.51 p.m.,

14 to be reconvened on Wednesday, the 10th day

15 of November, 2004, at 9.00 a.m.