⁶

Thursday, 30 August 2001

[Open session]

[Status Conference]

[The accused entered court]

--- Upon commencing at 10.08 a.m.

JUDGE MAY: Yes. Let the Registrar call the case.

THE REGISTRAR: Good morning, Your Honours. Case number IT-99-37-PT, the Prosecutor of the Tribunal against Slobodan Milosevic.

JUDGE MAY: The appearances.

MS. DEL PONTE: Your Honours, Carla Del Ponte, appearing for the Prosecution, along with Senior Trial Attorney Dirk Ryneveld, as well as Cristina Romano, Milbert Shin, Daryl Mundis, and Daniel Saxon. Thank you, Your Honour.

JUDGE MAY: Thank you. The purpose of this hearing is to review the status and progress of this case and, as the Rules require, to ensure that there is expeditious preparation for trial, and also to allow the accused the opportunity to raise issues in relation to the case, including any issue in relation to his mental and physical condition. Before dealing with these matters, the Trial Chamber has an announcement to make concerning the conduct of the trial. The Trial Chamber today is inviting the Registrar of the Tribunal to designate an amicus curiae for these proceedings, and I will summarise now the effect of this order.

The position is this: that the accused has not appointed counsel ⁷ to represent him and has informed the Registrar in writing that he has no intention of engaging a lawyer to do so. The accused is entitled to represent himself. However, the Trial Chamber has the duty of ensuring that a trial is fair and that the rights of the accused are fully respected. For these reasons, the Trial Chamber invites the Registrar to designate counsel as amicus curiae to assist the Court in the proper determination of this case.

It must be stressed that the role of designated counsel will not be to represent the accused but to assist the Court by the following: first, making any submissions properly open to the accused by way of preliminary or pre-trial motion or during the trial; second, making objections to evidence and cross-examining witnesses, as appropriate; third, drawing attention to any exculpatory or mitigating evidence; and fourth, acting in any other way which designated counsel considers appropriate in order to secure a fair trial.

This order will be issued today and copies will be available after the hearing.

Turning then to the subject matter of today's hearing, we will hear from the Prosecution first and then the accused. I should add this at the outset: that we've received a document entitled a Preliminary Motion, signed by the accused, a Response by the Prosecution, and now a Notice from the accused purporting to disclaim the motion. We will consider these documents in due course and give a decision about them in writing.

Now, turning to the Prosecution. We would wish to hear about the ⁸ state of readiness for the trial, the number of Prosecution witnesses and a time estimate, and any matters relating to disclosure. Madam Prosecutor, we have in mind that we must fix a timetable for this case, including a date for a pre-trial brief and also a general indication as to the date for trial, but we will also hear any submissions which the Prosecution wish to make.

Yes, Madam Prosecutor.

MS. DEL PONTE: Thank you, Your Honour. Before answering your questions, if you allow, I would present a request, a request that it means that I'm asking that the indictment is read to the accused. I would like that the Trial Chamber consider having the amended indictment read to the accused because at the initial appearance the proceedings were conducted properly and in accordance with the Rules of Procedure and Evidence. Nevertheless, at the time the Trial Chamber exercised its discretion to accept the accused's response as a waiver of the reading of the amended indictment, the Trial Chamber may have not been aware of certain facts which we would now like to bring to your attention. At the time of his arrest, Mr. Milosevic refused service of the copy of the original indictment of him. At no time during his transfer to The Hague did Mr. Milosevic accept, read, or have read to him the indictment upon which he was arrested.

Furthermore, the amended indictment was confirmed on 29 June, and Mr. Milosevic appeared on 3rd of July without counsel. We understand that prior to his initial appearance before this Trial Chamber, the accused again refused to accept service of the amended indictment, nor had it read ⁹ to him by members of the Registry staff.

Therefore, it cannot be said that he was aware of the charges against him at the time of the initial appearance, and in light of that information, the Trial Chamber may consider it appropriate to have the charges read to him in English. We suggest that it be done in English because it is clear that he understands English, but does not avail himself of translation services in the Serbian language by wearing the headphones.

My request, Your Honour, is that we make sure that the accused, Milosevic, knows the facts that are the charges against him.

JUDGE MAY: Madam Prosecutor, let me ask you this: As far as you're concerned, is this indictment in its final form or are you going to apply at some stage to amend it before trial? Because that would affect probably what we decide to do.

MS. DEL PONTE: Yes, Your Honour. As you know, I cannot properly answer yes or no, but I can say that we are working on that because of the mass graves, of the graves found near Belgrade, and that is for us another investigation activity that is pertaining to Kosovo. And so it is possible, Your Honour, Mr. President, that we must come out, we must come out with a third amended indictment.

JUDGE MAY: The sensible course, it seems to us, is to consider the matter of reading the charges when we have the indictment in a finalised form, and we have your application and we'll have it in mind and we'll consider it.

MS. DEL PONTE: Thank you, Your Honour. My only problem is that I ¹⁰ don't want to have Mr. Milosevic in detention without knowing which charges are against him that justifies detention.

JUDGE MAY: He has every opportunity of reading the indictment, of which he has a copy. Meanwhile, we'll consider the problem. Yes. Now, is there anything else you want to raise? Yes.

MS. DEL PONTE: If you allow, Your Honour, I would -- Senior Trial Attorney about the question you put to us, because he is particularly informed about it. Thank you.

JUDGE MAY: Yes. Thank you. Mr. Ryneveld.

MR. RYNEVELD: Thank you, Your Honours. I'd like to address you, actually, on two matters, if I may, the first of which is that Your Honours have specifically given a request to us to answer in terms of our anticipation of when the trial might proceed, how many witnesses, and matters of that nature. I must say that at this particular time, especially in light of what Madam Prosecutor has responded in answer to your request in terms of whether or not this is the final indictment, it would be premature for me to attempt to indicate to the Court exactly when matters of this nature could proceed or the number of witnesses. As Madam Prosecutor has indicated, the matter is still proceeding with an investigation. If we were to proceed with this particular indictment and its amended indictment in its present form, I would anticipate that the matter could not, in any event, proceed until next year. The amount of witnesses have yet to be culled with respect to the vast potential number of witnesses that we have. As you know, when we do our 65 ter analysis and summary, we would be in a much better position to ^{11 BLANK PAGE 12} give the Court an indication as to just how many witnesses they are. This is a vast case, you can appreciate.

Something else that Madam Prosecutor has not raised is, of course, in particular, Your Honour has asked about this particular amended indictment. Madam Prosecutor has made no secret that she is considering issuing indictments with respect to Bosnia and Croatia in the near future, and I anticipate that if that were the case, that there would also be an application for joinder.

All of those matters make it extremely complex in order for me to give you the type of answer that you are now asking. That is about as well as I can do at this particular point in time. There are just too many variables.

JUDGE MAY: Mr. Ryneveld, the Chamber has considered the position, and in the view of the Chamber, this matter should be ready for trial. The indictment was issued over two years ago. This accused has now been in custody for two months, and the matter must be readied for trial. Of course, it's a matter for you what other indictments you wish to bring forward. That can be done. If they're confirmed, of course, and you wish to make an application to join them, we will consider that in due course.

MR. RYNEVELD: Yes.

JUDGE MAY: But "in due course" is not an infinite amount of time. When do you anticipate that you will have the amendments ready for this indictment, in any event?

MR. RYNEVELD: My guess, Your Honour, although I can't -- as you can appreciate -- I see Madam Prosecutor is rising to her feet. Perhaps I ¹³ will allow her to answer that issue.

JUDGE MAY: Yes.

MS. DEL PONTE: Thank you. Thank you, Mr. President. Our preparation activity to come out with an amended indictment of Kosovo and with other two indictments about Croatia and Bosnia, we have a programme of investigation activity, and we think, particularly with both new indictments, the beginning of October. And we are working, but it's not easy, Your Honour, to make such a decision. In the same time, if, if, we are ready with our investigations and we came out with the amended indictment Kosovo, so-called Kosovo, I think we will need some more weeks for this amended indictment Kosovo.

So first we will come out with two new indictments, Croatia and Bosnia, and end of October/beginning of November, we will try to do our best for the amended indictment of Kosovo. So let's say two months, two, two and a half months more.

JUDGE MAY: The programme which we have in mind for this trial, and I emphasise "this trial" -- we will, of course, consider any applications that are made meanwhile, but it's important that this indictment, having been issued, as I say, being two years old now, is tried. The programme we have in mind is that a date for trial should be fixed within the first two months of next year. Working backwards from that date, a Pre-Trial Conference on the 9th of January. That means a date for the Prosecution pre-trial brief on this indictment would be something towards three months' time, the 26th of November. Now, that is the timetable that we have in mind fixing. There ¹⁴ must come a time when the matter is ready for trial and comes to trial, with respect, and that time is coming. So that is the timetable which we have in mind to impose, without hearing -- it may be appropriate that we could deal with the other matters you have in mind at the end of October, on the 29th of October. That may be suitable to deal with any other matters which you want to raise and any matters which the amicus wants to raise by way of any pre-trial motions.

MS. DEL PONTE: Yes, Your Honour. I take notice of that. I think we can manage that. I must confirm that we are trial ready for this indictment, but obviously it is not our -- our work is not finished and so that is what caused our problems. But for this indictment, we are trial ready.

JUDGE MAY: Well, that will be the timetable, and you can work towards it.

MS. DEL PONTE: Yes, Your Honour. Thank you.

[Trial Chamber confers]

JUDGE MAY: Yes.

MR. RYNEVELD: If I may, I indicated, Your Honour --

THE INTERPRETER: Microphone for the counsel.

MR. RYNEVELD: If I may, I indicated that there were two issues. The -- oh, yes. I've just been -- perhaps before I deal with the second issue, Your Honour might just clarify. When you said October 29th for the joinder application, I'm not quite sure exactly what Your Honour had in mind.

JUDGE MAY: Simply that of the next status conference and, if ¹⁵ necessary, the hearing of any motions on that day.

MR. RYNEVELD: Yes. No, I appreciate -- that is your proposal for the next Status Conference date. Yes. All right. That explains that. The second issue, Your Honours, deals, of course, with the Prosecution's concern that the accused is -- continues to be unrepresented, and Your Honour has very clearly indicated what your -- what the Court's proposal is, or what the Court's decision is with respect to dealing with that matter. We had intended to ask the Court to consider the appointment of Defence counsel. The amicus, of course, under Rule 74, and Your Honour has quite correctly pointed out that this is -- the amicus is intended to assist the Court. And the point that I believe I must raise is that, of course, the role of Defence counsel is to assist the accused.

Now, the four points by which the amicus would be assisting the Court quite clearly are intended to assist the Defence, to ensure that the interests of justice are being met. I accept that, but I wonder whether the Court, in addition to appointing an amicus curiae, would also consider whether or not it would be appropriate to assign a Defence counsel for the accused in these proceedings.

The function or the role for each is distinct, and Your Honours have quite carefully pointed out that the role of an amicus is to assist the Court. It is our view, however, that the Court may also wish to consider the appointment of a Defence counsel.

For example, one of the issues that Your Honour has already raised, the confusion with respect to his original document that he filed, ¹⁶ which was the preliminary protective motion wherein he purported to submit paragraph 8 only, we then filed a response. Then on the 27th of August, he filed a document entitled The Registry which may be interpreted as a withdrawal of that earlier motion. These matters, if counsel were assigned to him, these matters would not be as confusing. The second thing is - and I believe this is something that the Court would ask us to address in any event - the Prosecution has now complied with its obligations under Rule 66(A)(i) in that we have disclosed to the accused, in a language which he understands, all of the confirming materials for the -- that supported the amended indictment and all statements, et cetera, under Rule 66(A)(i).

My understanding is that the time for which he has to file any motion under Rule 72 is 30 days. From the 10th of August, time is running, and again that's another situation where we submit it would -- the interests of justice would benefit from the assignment of Defence counsel.

I appreciate that the issue of the preparation of preliminary motions is one of the items enumerated in the Court's proposal as to the role of amicus curiae, and perhaps Your Honours' assignment of an amicus curiae will deal with many of the issues that the Prosecution had anticipated. However, it would still be our recommendation and our request that you consider appointing not only an amicus but a Defence counsel. That is our request.

JUDGE ROBINSON: Mr. Ryneveld, I have heard your submission. However, I do not consider it appropriate for the Chamber to impose ^{17 BLANK PAGE 18} counsel upon the accused. We have to act in accordance with the Statute and our Rules which, in any event, reflect the position under customary international law, which is that the accused has a right to counsel, but he also has a right not to have counsel. He has a right to defend himself, and it is quite clear that he has chosen to defend himself. He has made that abundantly clear.

The strategy that the Chamber has employed of appointing an amicus curiae will take care of the problems that you have outlined, but I stress that it would be wrong for the Chamber to impose counsel on the accused, because that would be in breach of the position under customary international law.

MR. RYNEVELD: Thank you, Your Honours. I appreciate that Your Honours have taken our request into consideration.

JUDGE MAY: Let me add this, Mr. Ryneveld: Yes, that is the view of the Trial Chamber, that it would not be practical to impose counsel on an accused who wishes to represent himself, but the point should be made and so that the accused can hear it, that the amicus is not there to represent him but to assist the Court, the point that you were making. And what the amicus cannot do is put forward a positive Defence case. That would be the role of Defence counsel or the accused. Now, the accused may wish to reflect on that fact when he's considering his position.

Yes. Your next point, Mr. Ryneveld.

MR. RYNEVELD: I just wonder, Your Honours. I've also mentioned the fact that the accused has indicated in writing, and I wonder whether ¹⁹ maybe we could get a copy of his request to represent himself. We didn't have that.

JUDGE MAY: Yes. That can be done.

MR. RYNEVELD: I believe those are the only points that we wish to raise at this particular point. Thank you.

JUDGE MAY: Yes. Thank you.

[Trial Chamber confers]

JUDGE MAY: Turning then to the accused. Mr. Milosevic, are there any issues you wish to raise in connection with your case or with your physical and mental condition?

You know the rules. No speeches at this stage. You'll have the opportunity to defend yourself in due course. But if there are issues you want to raise about the case or about your conditions, then this is your chance to do so.

THE ACCUSED: Well, I would like to know, first of all, can I speak or you are going to turn off my microphone like first time?

JUDGE MAY: Mr. Milosevic, if you follow the rules, you will be able to speak. If you deal with relevant matters, of course you will be able to speak.

THE ACCUSED: Well, that is my next question. I would like to make presentation on the illegality of this Tribunal.

JUDGE MAY: You've already put a motion in on that topic. Are you asking to be able to address it -- the Chamber orally on that topic?

THE ACCUSED: If I cannot make the presentation orally that can take 40 minutes, I will give that in writing, and my -- ²⁰

JUDGE MAY: Yes. Well, why don't you -- sorry.

THE ACCUSED: My associates will give it to the press if you don't allow me to make it public here.

JUDGE MAY: If you make it in writing, it can be made public in due course. If you have it in writing, it may be more convenient to deal with it in that way.

THE ACCUSED: Well, that is your decision.

JUDGE MAY: Very well.

THE ACCUSED: So we have to communicate as civilised persons, not with switching off the microphone or to use the force for that so we can understand each other, what is possible, what is not. So I will leave it to you in writing.

JUDGE MAY: Very well.

THE ACCUSED: And if I can comment what I just heard. That was very interesting what I heard now, and that is proving what I said 3rd of July in this room, that that is false indictment. I was indicted 26th of May, 60th day of NATO aggression against Yugoslavia, when I was defending my country; and there are two and a half years from that date, and we just heard that they have no evidence, that they cannot complete indictment, in two and a half years. It is very long time for false indictments to be completed, and what we heard, that was proving that. And of course, having in mind that I'm not recognising this Tribunal, having a clear opinion, which is proved by legal facts, that this Tribunal is illegal, I don't see why I have to defend myself in front of false Tribunal from false indictments. That's another -- that's another explanation. ²¹ If you allow to me, I would ask some questions to you concerning my position in illegal imprisonment.

JUDGE MAY: You can't ask us any questions, but if there are issues you want to raise about that, you can do so.

THE ACCUSED: Well, I'm, by the order of this illegal institution, in total isolation, and my question is: Why am I isolated from my family? Why my family cannot visit me the same way as the others have that possibility? Why the visits of my family are monitored? Why you need monitoring of my talks with my grandson, who is two and a half years old? So why you are making all those acts of massive violation of my rights? Why I am isolated from the persons who would like to visit me and who I need to talk and to discuss different legal aspects of my position in this illegal imprisonment?

JUDGE MAY: Just pause there. The Rules governing the detention are a matter for the Registrar. If they are being applied differently to you to anybody else, we will inquire.

THE ACCUSED: It is --

JUDGE MAY: Just a moment. The difficulty about the lawyers is this: that you have not yet selected or nominated a lawyer, and the Rules allow legal visits from a nominated lawyer. Now, is this your position: that you wish to represent yourself, you do not wish to appoint a lawyer, but you do wish to have access to legal advice? Does that summarise your position?

THE ACCUSED: Well, it is clear that it is my right to contact different experts for different aspects of my position in illegal ²² imprisonment, and in addition to that, I have the right to contact lawyers who are dealing with my private affairs in Yugoslavia. I have the right to contact lawyers who are engaged within some international organisations who are supporting me. I have right to communicate with that people, and I cannot understand how that will be established on a discriminatory basis. As I understand, all system of UN is based on the principle of non-discrimination, and I am discriminated all the time from the first day I got in.

JUDGE MAY: The problem, Mr. Milosevic, is that you have not nominated a lawyer. If you had nominated a lawyer, the matter would be clear. The staff here have to follow the rules, and the person who is allowed the legal visits is your nominated lawyer. But you say there are essentially two matters on which you want advice. You want advice, first of all, on your position here, on these proceedings; you also want advice about your affairs in Yugoslavia. Is that right?

THE ACCUSED: Of course it is right, and many other things I have in mind what I have to talk about with the persons who would like to visit me and to contact me.

JUDGE MAY: The Trial Chamber will look into these matters. We'll consider it.

THE ACCUSED: The third question is why I am isolated from the press, especially in the circumstances in which every single day there is something printed or broadcast against me as a pure lie? So you are keeping me in isolation not to communicate to the press even by telephone, which is only -- which is available to me. There are some representatives ^{23 BLANK PAGE 24} of the press. Maybe there are somebody within them who would like to know the truth. I believe that nobody has to be afraid of the truth, and if there is on one side all that machinery you represent, all that secret services, military machinery, media machinery, and everything else, and on my side is only the truth, if you are isolating me from the communications with the press, then it is clear that it is completely discriminatory, and you cannot even mention the idea of even-handedness in any kind of that procedure you have in mind.

JUDGE MAY: Mr. Milosevic --

THE ACCUSED: And please, I want to remind you, I'm not recognising this Tribunal, considering it completely illegitimate and illegal, so all those questions about counsels, about representations, are out of any question. I saw in newspaper that --

JUDGE MAY: Very well. Mr. Milosevic, there must be an end to this. Just one moment. Let me deal with the matters you raised. The Rules of the Detention Unit provide that there should not be communication with the press. Those are the Rules and they must be followed. They don't discriminate against you. They are applied to all the accused who are in detention.

As for your point about not recognising the Tribunal, you have made it and we have heard it and there is no need to repeat it. Now, is there anything else you want to add?

THE ACCUSED: Well, I understood that they were dealing with that problem of illegality of the Tribunal as a problem of jurisdiction. It is clear to any lawyer in the world that question of jurisdiction can be open ²⁵ when juridical institutions are concerned, and you are not juridical institution; you are political tool.

JUDGE MAY: You've made all these points. Mr. Milosevic, we're not going to listen to -- we are not going to listen to these political arguments. You have your motion on jurisdiction which you can put in and which we will consider.

THE ACCUSED: But that is not a question of jurisdiction, just because of that --

JUDGE MAY: We will consider it.

THE ACCUSED: You are political tool of those who --

JUDGE MAY: Very well. This hearing will be adjourned now until Monday, the 29th of October.

--- Whereupon the Status Conference adjourned at 10.47 a.m. to be reconvened on Monday, the 29th day of October 2001