Milosevic Transcript 2003-09-02a

²⁵⁹⁴¹

Tuesday, 2 September 2003

[Pre-Defence Conference]

[Open session]

[The accused entered court]

--- Upon commencing at 3.32 p.m.

JUDGE MAY: The purpose of this hearing, as was set out in the Scheduling Order, is to discuss the preparation and presentation of the Defence case. The Trial Chamber proposes to hear relevant submissions from the parties and then in due course, having considered them, to make the necessary orders.

The scheme set out in the Rules provides that after the close of the Prosecution case and before the beginning of the Defence case, the Pre-Trial Judge shall order the Defence to file a list of the witnesses it intends to call together with a time estimate, a summary of facts for each, and an indication whether the witness is to testify in person or by way of statement under the provisions of Rule 92 bis. The order may also include an order for the provision of a list of exhibits on which the Defence will rely, together with copies of them for the Prosecution. These provisions are in Rule 65 ter (g). Then, prior to the beginning of the Defence case, the Trial Chamber may hold a Pre-Defence Conference and determine the number of witnesses the Defence may call and the time available for presenting such evidence; Rule 73 ter.

The Trial Chamber in this case will have to consider whether the provisions which I've set out should be adapted in the circumstances to ²⁵⁹⁴² take account of the fact that the accused is appearing in person. We will also have to consider whether any order should be made with regard to the practical arrangements for the appearance of witnesses, although this may be a matter for dealing with rather later, and the Trial Chamber must consider a timetable.

We will hear the submissions of the parties in this order: We begin with the accused, followed by the amici, and followed by the Prosecution. I should say that at the end of the hearing, we will also deal with any other appropriate matters for a Status Conference since we have some time available.

Now, Mr. Milosevic, we begin with you. You've heard an outline of the procedure which the Rules lay down and which the Trial Chamber will obviously follow, but we will hear any submissions as to a timetable that you want to make or any requests for assistance which you want. Yes.

THE ACCUSED: [Interpretation] Yes. It seems to be switched on now.

I have heard what you have said, Mr. May, and I expect in keeping with what you have just said and in view of the fact that you have declared my right to defend myself or, rather, my right to defence, and there I imply and mean all the other principles which you have emphasised on numerous previous occasions to which you adhere in these proceedings, first of all, the equality of arms and all the other principles which are very well known to you all.

As you have declared my right to conduct my own defence, I understand that I should also be acquired the same rights that the ²⁵⁹⁴³ defender has for an adequate defence, and this implies both the time necessary and the conditions required for this.

Now, when we look into the question of time, first of all, I place the witnesses, because I assume that somebody defending himself has the right to direct and unsupervised contact with potential witnesses, and to all intents and purposes that means that if I were to bring forward as many witnesses as the opposite side has brought forward to date - and I don't know how many more witnesses the Prosecution is going to come up with, and I'm sure there are many more of them - then it is quite obvious that there will be a large number, and for comparison purposes, we can take the time used up by the other side to prepare its witnesses. Apart from that, I should also need free and unsupervised access to sources of information and documents, and I should like to remind you that the opposite side itself disclosed about half a million pages, and that is not the most important matter that I should have access to. I have to have access to many other sources and take all those into account too, because there are my own documents, documents which relate to all the issues raised thus far during the testimonies of all the witnesses that we have heard here and presented by the opposite side, and the concept in general terms which they have.

Therefore, if we take all this into account, there are two basic issues: One is the question of time and the other is the question of circumstance. And I think if we take into account the significance of the trial itself, you yourselves and the opposite side over there have on numerous occasions emphasised that this is the number one trial, the ²⁵⁹⁴⁴ largest in scope, incorporating Kosovo, Bosnia-Herzegovina, Croatia, and if we were to compare it to the other trials, or rather, with the practice put into place with the other trials, then it becomes quite clear that we shall need a good amount of time and that time -- the time needed would actually be endless. But if we bear in mind the time that was given to the other side to prepare its witnesses, the time that I shall need for direct and unsupervised contact with my witnesses, direct and unsupervised contacts and access to documents and so on and so forth, then this implies that I would need the conditions necessary for me to prepare my trial at liberty -- while at liberty. And I cannot even begin to calculate how much time I would need and what would be adequate if I were to compare it to the time used up by the other side, especially if we bear in mind how many representatives and people are in fact representing that other side over there. But even the barest minimum of the time that I would need, in my opinion, would have to be in excess of two years. So that, then, would be -- those, then, would be the facts in keeping with your Rules of Procedure and if we compare what the other side had, of course far more modestly, several times less than the other side had. And if I'm realistic --

JUDGE ROBINSON: Just to clarify. In excess of two years to prepare for the trial or to present your case?

THE ACCUSED: [Interpretation] I need that for preparation, because the opposite side, for its preparation of the trial, if you remember the indictment for Kosovo was raised in May 1999, that is to say four and a half years ago, and in the meantime, we had all sorts of witnesses coming ²⁵⁹⁴⁵ forward, depositions, statements, and so on, and some of them even go back to 1993, 1994, and 1995.

So therefore, even if I am extremely modest, I'm not actually comparing what the other side had to what I myself would need. And I think that in a symbolic way, you would be expressing the principle of the equality of arms if you were to give me this modest amount of time. So, Mr. Robinson, as I said, if I had to do the job, to do the work in a direct manner, unimpeded contacts, unsupervised contacts with a number of witnesses with just the same amount of witnesses that the other side had, then I would need at least that much time. So I feel that the least time I need is what you will find acceptable. And I'm talking about aspects which I consider to be essential, once again time and the conditions and circumstances under which I'm able to prepare my case for me to be able to have the possibility of realising the right you have accorded to me yourselves, because you know that there are no small defences or semi-defences. All that we can talk about is an adequate suitable defence. So for an adequate and suitable defence, a lot of work has to be got through, and I would need at least the time that I have mentioned.

If I'm not accorded that, then that would mean that all that is allowed here is the prosecution and not the defence.

JUDGE MAY: Very well.

[Trial Chamber confers]

JUDGE MAY: We consider the submissions made by the accused. The first matter to deal with is the issue of provisional release. That is a ²⁵⁹⁴⁶ ^{BLANK PAGE} ²⁵⁹⁴⁷ matter upon which we have already ruled. We have ruled that the accused cannot be released provisionally, and there is no reason to change that ruling now. That means that the accused must make the preparations for his defence while he is in custody. That too is a matter which we have in mind. We also have in mind the resources which the Prosecution have as against the resources which he has. There can be no question during a trial of a break of two years. However, we will consider what is a reasonable amount of time for the accused to have to prepare his case. We will also consider, together with the Registry, what practical arrangements can be made in order for him to prepare witnesses and to prepare exhibits and generally to prepare his case. Now, Mr. Kay, is there anything you want to add to that? Yes. Judge Robinson adds this: There is one other matter that we should deal with, Mr. Milosevic, to give you some indication of the way in which an order will be made in relation to the number of witnesses and also the time that you will have available.

As far as the number of witnesses are concerned, that will be based upon the number of the witnesses who the Prosecution call, as you yourself have anticipated. Allowance, of course, will be made for a number of witnesses, not many to date, but a number of witnesses who have not been called to testify orally but have given evidence by way of transcript or by way of written statement.

Secondly, as to the time available, that too will be based upon the time which the Prosecution have had to present their case, the time spent on examination-in-chief, and re-examination in the case of the ²⁵⁹⁴⁸ witnesses. That will be calculated on the basis of the log being kept by the Registry.

The position also is this: That allowance will have to be made and will be made for those witnesses whose evidence in chief has been given under the Rule which I've mentioned and has therefore been curtailed. All those are calculations which we will make in due course. I should of course add that the Prosecution will be subject to the same rules as the Defence in relation to the length of cross-examination. Yes, Mr. Kay.

MR. KAY: In many respects, the most important issue at this stage is the length of time that the accused has for preparation. On the one hand, too little time would seriously damage him in the presentation of his defence and may make a valid and worthwhile case on his behalf impossible. Sufficient time for his preparation is needed because of the importance of this trial, the numbers of issues that he has to deal with, there being three indictments involving three wars and involving two NATO bombings.

For any defendant to embark upon a defence case, the scale of the task that he faces has to be borne in mind by the Court in setting aside the time for his preparation. If we start from the date of his arrest, which was in June 2001, he was very quickly at the trial stage by February 2002. We all know that in that period of time, there could be no meaningful preparation of any defence because of the scale of the papers and the issues that had to be dealt with pre-trial. Once his trial started in February 2002, he, like all of us, will have been continuously ²⁵⁹⁴⁹ involved in dealing with the many issues that the case has provided us, issues involving witnesses as well as evidence as well as law. It would not be right to think that during this trial there has been sufficient time for him to embark upon meaningful preparations of a defence. The reality is that is simply not possible.

If the accused has now the idea of the number of witnesses that he may call and the time that is available to him, that at least gives a scheme into which a defence strategy can be inserted, but account has to be taken, of course, that preparations that he will require will involve others speaking to witnesses, others locating witnesses, others locating documents on his behalf. This is not going to be an easy and simply done task.

It is apparent that he has very limited resources available to him and limited support. We have all been made aware of that during the course of this trial where he has had to rely upon the services of two associates and whatever support they can muster, but that has been his direct team here.

If you have resources available to you on the scale that the Prosecutor has - a vast number of lawyers, support staff, investigators - you can, of course, get more done quickly. You can achieve more. You have the ability to directly communicate with people through enforcement agencies, perhaps even governments and other means. For this accused being in custody, his task is not going to be as easy as that, and the opening of doors, the obtaining of witnesses, the provision of evidence is going to be a very tough task, and the Court must ²⁵⁹⁵⁰ bear that in mind.

The Defence, in undertaking these projects, require resources sufficient to enable them to undertake their task as well as sufficient numbers of people.

In dealing with the issues that he has to deal with as the former head of state, dealing with the three indictments, all the issues surrounding those indictments, it must be clearly thought through as to the amount of time that he will require to prepare himself for a meaningful defence. He has put forward a period of time, no doubt having consulted those who support him directly, aware of their limitations and resources and no doubt wanting to put forward the best Defence case possible.

And although it may seem a long period of time to this Court to have that kind of break in a case, it does pay here to stop, pause, and reflect as to the length of the time the Prosecutor has had for the preparation of their cases. And I say "cases," because there are three. The indictment in relation to Kosovo was issued in May of 1999. This accused was arrested, as we know, in the year 2001; two years later. The stage by which we got round to the Croatia aspect of the trial, that had been a year in preparation. And the Bosnia stage of this trial slightly over a year in preparation. And in the Croatia and Bosnia trials, they were using a large degree of materials that were pre-existing from other cases. This accused does not have that resource available to him. For him, this is the only case, it is a fresh case, and it is a case that he has to present with no previous history of litigation to draw upon. ²⁵⁹⁵¹ In relation to any other case in this building, or shall I say many other cases, where we are dealing with a defendant at the lower end of the scale, there have been periods of six months' preparation given to the Defence.

JUDGE MAY: That is not the practice now. If it was in the past, it is no longer, and I would think that the average time should be about a month at the most. But of course we acknowledge this is a rather different case than to those.

MR. KAY: Yes. I remember in the Tadic case we moved from the Prosecution case to the Defence case in, I think, about four weeks.

JUDGE MAY: That's normal in most countries. You don't have a break at all. You simply start on with the defence. But we needn't debate that now.

MR. KAY: Yes. We all acknowledge here that this is different from any other case that any of us has ever been in or tried, and the issues are far greater. And that has to be recognised in the amount of time that this Court makes available. It may be inconvenient for the system, and it may be inconvenient for the life of this Tribunal, but it remains a fact that adequate and sufficient time must be granted for this case because of the type of case it is and bearing in mind that this accused is representing himself, which will make a number of his tasks and projects in collecting defence evidence perhaps harder to achieve than if he had counsel acting on his behalf able to move freely and have appointments, interviews, and collect documents and make research without hindrance. ²⁵⁹⁵²

JUDGE MAY: You refer to the convenience of the Tribunal or the Court. Those, of course, are totally irrelevant matters. At the same time, this is a criminal trial, and it must proceed. It cannot have the break of the sort which the accused is suggesting. What has to be done is to ensure that there is a fair trial, and that does involve the accused in having an adequate time, which must be a matter of judgement, in order to present his case.

One way in which it may be necessary, and I'm simply thinking aloud now as you speak, but one way may be this, that it may be that the hours of sitting will have to be less in order to give time for preparation during the course of the Defence case. It's not, I should have thought, going to be a position in which he's going to be in a position to begin a case with everything prepared. I suspect more likely that things will change as the case goes on as experience shows it happens, and it will be necessary for some time to be set aside during the case for him to prepare, to meet with witnesses and the like.

JUDGE ROBINSON: Mr. Kay, I was going to put you on the spot by asking based on the experience that you have had in this case, your familiarity with the issues, what in your view would be an appropriate time for preparation?

MR. KAY: It depends on resources, of course, and lack of resources puts people under enormous pressure in this case to achieve as much as they would otherwise like to achieve.

It's unclear to me exactly what resources will be available to the accused, what he has available to him, because those are his own affairs ²⁵⁹⁵³ and own business.

JUDGE MAY: Well, he has shown in cross-examination that he has a great deal of material available to him, very detailed cross-examination of a lot of witnesses, which must have been based on material.

MR. KAY: Yes. Plainly material is able to be obtained by him for that purpose. As to presentation of defence material in the presentation of your own case, that's rather a different matter. Many a football manager says it's easier to attack than to defend, and one can understand that when you've got the responsibility of presenting the issues through your own witness and draw the picture you want to draw that that requires more resources. There can be no doubt the kind of case we're looking at with the defendant is a case that will involve a great deal of documentation, more documentation for the Court and documentation that he would rely upon to put his side of the issues.

I'm conscious I've ducked His Honour Judge Robinson's questions so far, but I did hedge about it on the question of resources, which I don't mean a disrespect to Your Honour. It just does make a difference in planning this case. On behalf of the amicus curiae, we had to set out what our resources were available and who undertook what tasks and we've had to revise and change as resources have changed during the course of the trial. I don't know if you want me to be more specific and --

JUDGE ROBINSON: I wouldn't press you any further.

MR. KAY: I'm grateful, but I hope that I've dealt with that. Of course, a background feature of this is the question of facilities and how easy it is. You can give someone two years, but it would be impossible ²⁵⁹⁵⁴ because they don't have the facilities and resources to undertake the planning and preparation that they have to undertake. You can give someone a lesser period of time and, with greater facilities and resources, it can become possible.

There's no doubt that he is going to be presenting his witnesses, calling his witnesses and asking the questions himself, and that will require him to have interviewed them, obviously, and the witness and he familiarise themselves with any documents and the order by which they're going to present material to the Court. That would be in the Court's interest because, plainly, to have a disorganised preparation because the accused has not been able to have the opportunity to speak to the witness in advance and undergo such preparation would cause the proceedings later on to be less organised and more dysfunctional than they might otherwise have been.

So such facilities for him to operate as his own counsel and interview witnesses and go through documents with them, which must, of course, respect his privacy and matters of privilege with those witnesses, will be of great importance. I can't envisage that this is something that could be done whereby someone undertakes it on his behalf and then a witness is called in and then for the first time Mr. Milosevic has to ask them questions and go through documents.

JUDGE MAY: This is the proofing of the witness.

MR. KAY: Yes.

JUDGE MAY: You say that should be done by the accused who is going to call the witness. ²⁵⁹⁵⁵

MR. KAY: Yes. I had in mind preparation in the sense that I would imagine the proofing was -- there would have been a statement taken by an associate to give the reason for the witness to come and be put on a list, and then Mr. Milosevic speak to the witness and go through the evidence with them. I should imagine a proof first of all would be taken by someone else, but the preparation and running through it, in the way that the Prosecutor does for the summaries of their witnesses, would be something he would want to do. And in my submission, that would be in the Court's interest.

Such materials that they bring with them as well would have to be prepared and prepared in a way so that the Court and the Prosecution, Registry, had documents in advance from a witness. The Court would not want a witness suddenly producing documents that Mr. Milosevic may not have seen that the witness thinks are material. And facilities that would enable that kind of preparation to be taken within the facilities of the Registry.

At this stage it's still very difficult, I should imagine, for him to give an indication of which witness or numbers of witnesses. The Prosecution case is still open, we still have a large number of witnesses to come to court to be heard, and we know that that list is still not closed as far as they are concerned; there are new witnesses being added every week.

[Trial Chamber confers]

JUDGE MAY: We're not asking for any indication now.

MR. KAY: I'm putting that forward so the Court is aware of that ²⁵⁹⁵⁶ in terms of issues as far as he is concerned.

That's all I need say on the matter for the moment. The two big issues are the facilities and the amount of time he be given for his preparation. I don't know if I can help the Court any further.

JUDGE MAY: No. Thank you very much. The Prosecution.

MR. NICE: Procedurally I respectfully suggest that the Chamber is in a position to merge 65 ter and 73 ter by provisions of 65 ter (m) whereby the Trial Chamber takes the functions of the Pre-Trial Judge, and it would seem to us that the Chamber is well within its powers to make effectively definitive orders ahead of the termination of the Prosecution's case because it's dealing with a litigant in person. Any represented accused's lawyers would know ahead of the close of the Prosecution case that they would be being put on the spot as to witness lists, exhibit lists, and summaries, and would inevitably be preparing in advance of the close of the Prosecution case so that the orders made thereafter, as Your Honour has said, typically to allow no more than a month of preparation time would not surprise or inconvenience Defence counsel.

So it's our submission the Chamber is absolutely right to proceed in the way it is doing and would be justified in making effectively final orders in respect of the accused although the orders could only take final effect after the conclusion of the case if the Rules are to be honoured. How much time should be allowed? This is a matter for judgement by the Trial Chamber, and I don't intend, unless pressed, to volunteer a ²⁵⁹⁵⁷ period save to say that it is in the very limited number of months at most, and respectfully to remind the Chamber that there is a significant difference between the position of the accused and the position of the Prosecution. Attention has been drawn to differences in forensic resources, though of course, as the Chamber may know of the case of Kayishema, on appeal, I think it's been held, I think it's an appeal case, that the -- it may have been the Trial Chamber, but Article 20 deals not with equality of resources but equality of rights, and that's what one has to have in mind. And of course the difference between the accused and the Prosecution here includes that he was either the participant or certainly a major participant who knows from his own knowledge what the truth was and doesn't have to investigate in order to discover that truth by the necessarily complicated and complex methods that we do. So he knows immediately what evidence he has to call, and things are much less complicated for him in that respect than it is for us. We would also observe, as Your Honour has touched upon already, that he has never been at a loss for a question in cross-examination, and in the majority of witnesses, if not very nearly every witness bar a few, has sought more time to deal with what he says are outstanding questions. I hear what Mr. Kay says about the limitations on his resources. Information coming to us is necessarily somewhat anecdotal, but it has been our understanding that he is, if not in The Hague then elsewhere, extremely well resourced as evidenced by his questions. It should also be borne in mind that the very substantial resources of the Office of the Prosecutor have been in very large measure ²⁵⁹⁵⁸ turned to what I think His Honour Hunt has described either as a parallel case or a case of equal importance to the Prosecution case, namely the case whereby we turn over to the accused material that is favourable to him to assist him, and therefore a large amount of preparatory work that he might otherwise have wanted to do for himself has been done for him by us.

As to the problem of his contact with witnesses and the preparation of those witnesses and his preparation for trial generally, he elected to appear unrepresented despite the clear opportunity for him to have assistance. I'm not going to revisit really at all the question of having Defence counsel imposed on him, although the Chamber will be probably aware of what has happened in the case of Seselj, where something called "standby counsel" has been assigned. And the Chamber may want to consider its powers in relation to that sort of possibility as it will no doubt want to consider whether an accused will need - whether he recognises it himself or not at the moment - the services of someone to do for him what is done for us by our case managers, today Ms. Dicklich, but as you know, also others. He needs that resource. It's available to him. To make use of it if it could be made available to him would in no way come between him and his decision to be unrepresented, because it would be administrative assistance. To do without it when it would undoubtedly, by one means or another, be available to him would be simply to be cutting off his nose to spite his face, and that's not an action of his that should be allowed to justify an extension of an otherwise suitably -- suitable time limit. ²⁵⁹⁵⁹

JUDGE MAY: Plainly the fact that he is representing himself cannot be allowed to give him advantages, but at the same time, one has got to consider the reality of the position, that that has been his position throughout, that he wishes to represent himself and does not want counsel. There are matters of indigency which have to be considered in relation to any assistance he is to have, and at the moment, of course, there is no such finding in his case. So at the moment we must proceed on the basis of his representing himself.

MR. NICE: I see all that, Your Honour, but I would invite the accused, through the Chamber, to see the sense of providing himself with the appropriate professional assistance to make his task easier, recognising that if he doesn't take that obvious and sensible step, he may be doing nothing but harming his case, because there will come a limit to the amount of time that can be given to him simply on the grounds that he chooses to do every task himself when it's unrealistic for him to do so.

JUDGE MAY: The position of the case manager is really the one that you're mentioning.

MR. NICE: It's an extremely important position because it also enables there to be communication between the accused and the other organs of the court on a regular basis without any prejudice to the accused's defence but in order to ensure that time is well used and that documents are available and so on and so forth.

Can I deal with the proposition that he must necessarily be entitled to speak in advance of calling witnesses with every witness? I can see, of course, the immediate and instinctive attraction of that as a ²⁵⁹⁶⁰ proposition. I venture the following few observations: The Chamber will know, of course, that there are jurisdictions where not only is that not something that happens naturally but doesn't happen at all, where witnesses are always prepared by others and taken in court by the advocate, he being freed of the embarrassment of having to talk to the witnesses himself for fear of in any sense corrupting them. That may be a slightly passing tradition in some countries, but it isn't necessary for somebody who presents a case to have spoken to each and every witness. He has people working for him, his associates. They are capable of preparing witnesses. He can then take them.

And as a matter of fact, it is by no means the case that every witness on this side of the court is prepared in full or even sometimes very much at all by the counsel taking him. Usually they are, I accept, but by no means always.

Second, in the accused's case, there may be examples of witnesses of whom we now have one example pending in the Prosecution case. I won't mention his name because there's no, I think, ruling yet as to whether his name can be added to the list. But the Chamber will be aware of the fact that there is a witness who the Prosecution seeks to call who declines to speak to the Prosecution, and one can imagine that that may be something that will happen with the accused from time to time, and therefore he won't be able to speak to all his witnesses personally. But that's perhaps supposition. We'll have to wait and see what happens. What is plain is that for him to spend an equal amount of time with every witness that the witness would take in examination-in-chief may ²⁵⁹⁶¹ slow this trial down in an unacceptable way, and he must, if he is to present the case himself as he has chosen to do, use the resources that are available to him to ensure that witnesses can be called comparatively swiftly one after another without there being holes in the court timetable, because that would be a way of his forcing the preparation to be given to him that the Chamber may otherwise have decided is inappropriately long. So again, I would invite the Chamber to require the accused to provide witnesses in an orderly and comparatively swift way one after another using whatever is appropriate for him to do so. In our respective submission, is it the case that he must be required to provide lists of witnesses and exhibits and summaries of what those witnesses are going to say? This is not a question of serving the interests of the Prosecution but of course of serving the interests of the Court, because only if we know who the witnesses are and on what topics they are going to give evidence can we assist the Chamber either, A, by admitting the evidence of the witnesses unchallenged so that time can be saved; or B, cross-examining them properly and in no wasteful way on issues that should properly be raise. That's why those potentials for orders exist in the Rules and should, in our respectful submission, be applied to this accused as to any other period.

Your Honour, I don't know that there are any other matters that I should raise at this stage for you to make your decision, save to observe that the accused has already indicated several witnesses by name who he intends to call and I think others by category, and contrary to what my learned friend Mr. Kay says, there have clearly already been steps of ²⁵⁹⁶² preparation taken to our knowledge and in respect of some witnesses. And I think perhaps finally in relation to what he said about preparation of documents, it is obvious from the range of questions he's been able to ask of witnesses that he has, either personally or through associates and others working on his behalf, very considerable access to documents, sometimes far greater than the access that we have, and that it shouldn't be assumed that he is particularly in need of time to lay his hands on documents material to the defence. And I come back to the very first --

JUDGE ROBINSON: Maybe he can give you some assistance there, Mr. Nice.

MR. NICE: We would be very grateful. As Your Honour knows, there are outstanding requests.

Indeed, I mean, the point Your Honour raises is an important and helpful one in the same way as we have to unearth a hidden case from witnesses who may be unwilling even when we track them down. We have had very considerable difficulty in unlocking the doors to documents that, in our submission, should have been made available to us years ago. They are coming in late as we know. The accused's ready ability to cross-examine suggests a greater accessibility to him.

Let me just check with my colleagues and see if there's anything they'd like me to add to what I've said.

Thank you very much.

[Trial Chamber confers]

JUDGE MAY: We will hear the accused if he wishes to add anything ²⁵⁹⁶³ on these matters. We will not be able to sit beyond 5.00, but we may have a short time to deal with any other matters that anyone wants to raise. Mr. Milosevic, do you want to respond to what the Prosecution have said before we adjourn to make our order? As I say, if you -- if there's anything else you want to raise about anything else, we may have a few minutes afterwards, but on this issue of defence preparation, is there anything you want to add about that?

THE ACCUSED: [Interpretation] The only thing I wish to add, Mr. May, is that what the Prosecution has said is absurd, that with all the machinery and services they have at their disposal, they feel that they are more or less on an equal footing in relation to me here. I have already told you that I do not recognise this Court, so this is not a trial. It is you who have said that I have the right --

JUDGE MAY: We've heard all this several times before. Now, do you want to say anything practical and concrete about anything the Prosecution says?

THE ACCUSED: [Interpretation] Something quite practical and quite concrete, Mr. May. I said that the most modest amount of time that is necessary is two years and that I would have to have unsupervised contact with witnesses. Can you explain how you imagine that I can communicate with the witnesses I intend to call if I am not free to communicate with them? And how do you think it's possible to prepare witnesses for their testimony if I do not have direct and unsupervised contact with them? It is well known that all you will permit here is the Prosecution, not the Defence, to present its case. Let us not pretend here that there ²⁵⁹⁶⁴ is an equality of arms.

JUDGE MAY: No. Mr. Milosevic, you know that is not the case. We're even now discussing how to facilitate the presentation of your case. As for the matter of your access to the witnesses and its being unsupervised, we hear the argument. It's not a matter we can rule on at the moment. Arrangements will have to be made, and practical arrangements will have to be made for you to have access to your witnesses and to have access to documents. Now, both of those are matters which we are going to consider, and we will consider them with the Registry, and we will provide a schedule or an operative scheme which will enable you to speak to your witnesses. That's a matter we have in mind.

Now, we will move on to consider anything else which is relevant that could be dealt with shortly.

Mr. Nice.

MR. NICE: First of all, we've got up-to-date witness lists for distribution. I don't want to flood you with these but it's probably helpful to have them from time to time updated, and this list provides both the primary witnesses, both categories of 92 bis witnesses, the category of witnesses who we are not -- presently not able to call but who we would like to be able to call and who we provide to you in case they should be names that you will want to call yourselves. And that brings me back to the witness Braddock Scott, because I have further researched or reminded myself of what happened and researched what happened in relation to that witness, who does appear on that last part of the schedule of witnesses we no longer we feel we are able to call ²⁵⁹⁶⁵ for want of time but who the Chamber might themselves want to call. And indeed, it is indicated that he is one who you might want to call. The position is that of course -- I can only apologise for not recalling this this morning -- he was originally rejected on the grounds that he was not a Rule 70 witness. The matter went on appeal. Following that decision he was then a witness we could call. It probably would still have been a matter for the Trial Chamber whether any conditioned response -- sorry, any conditioned consent of the provider was acceptable to the Chamber, but in the event, as I understand it, he can now give evidence openly. So that he is an available witness but he's not one who we feel we would put within the priority list of witnesses we would call in the limited time available.

The -- you will recall that we put on the end of the very first part of this schedule, at what is page 18 of the first schedule, how we are doing in the table with figures at the end of it. There has been some slippage so far as we are concerned in that the days of evidence by which we will have to reduce our case has gone up from 18 to 22 days, reflecting possibly the addition of witnesses and possibly the time taken by the accused in cross-examination.

It's simply a useful guide to us to show how we're doing and to show how much we're going to have to cut our witness list by in order to meet the deadline which, on present estimates, will fall somewhere in about December.

The Chamber will recall my mentioning at the end of the hearings before the summer the possibility that with some of the upcoming witnesses ²⁵⁹⁶⁶ the Chamber might feel able, in advance of the witnesses giving evidence, to ration time. This is a problem that I'd like the Chamber to consider if it feels it can.

If we call witnesses, particularly if I can so describe them, big-name witnesses, there's always the risk that they will be given so much time in cross-examination that they will, by the time given, eliminate other witnesses from our list, and that makes it difficult for us to decide whether to call them or not. And it may be that in due course - not immediately, but with some of the particularly well-known witnesses who may be before you in due course - that the Chamber would think it not inappropriate to say, well, the Prosecution can have an hour and a half, the accused two hours, the amicus 20 minutes, and to alert the accused ahead of the witness coming to the courtroom that he should prepare his limited time to focus on the material issues, because it is very difficult for us to budget otherwise.

Can I make available to you one other document which is aimed at assisting the Chamber in relation to the period of time that must pass between the conclusion of our case and the start of the accused's case. Within that period time, any 98 bis submissions must be dealt with, and I've had from the beginning of this case in mind the desirability of dealing with materials so that that can be taken or dealt with in an efficient way.

I've been able to discuss it with Mr. Kay but, of course, not with the accused. I know that the amicus -- amici are preparing submissions in respect of 98 bis, and it may help the accused, little though I know he ²⁵⁹⁶⁷ expresses any interest in procedure, if he focuses on this, because it's designed to help him as well as Your Honours and my learned friend. We have at the moment things called fill-box documents which simply track the indictment, as you know, and at the moment constitute bins into which bits of evidence are put that relate to particular parts of the indictment, and we're updating that periodically and revising it as we approach the end of our case.

This sheet is a proposed extract from such a fill-box document, a Kosovo fill-box document, as you will see, with on the left-hand side one of the allegations that has to be proved, the second column being at the moment the summary of evidence that relates to that column. And then what's been proposed, and I think Mr. Kay thinks this a sensible suggestion, is that for either part or all of the document it will be possible for him to respond to the way we summarise the evidence by the sort of typical responses I've put here, either that the Prosecution's led no evidence, or the evidence is insufficient, or have no comment to make. The scale of those indictments, the size of them is such that we need a system to deal with 98 bis submissions, because if we simply allow each party to launch into narrative written submissions, it will be very difficult for the Chamber to track how those submissions relate to particular paragraphs in the indictment. And following the amicus or amici's response, it would be open to the Prosecution to respond in another column in the way that we've proposed here. Mr. Kay thinks this may help him. I would be grateful for an indication at some stage if the Chamber thinks this is sensible or ²⁵⁹⁶⁸ otherwise, because if otherwise I shan't spend resources on it. But if the Chamber thinks this might be helpful, then the accused, if he intends to take any part in this procedure that is available to him, might care to use it himself. It's designed, as I repeat, to help him as well as to help the Chamber.

JUDGE KWON: In terms of evidence Mr. Nice, do you think this a comprehensive one? That means, may I take it, that if some evidence is not dealt with in this schedule, can I take it that we may not consider that evidence?

MR. NICE: It attempts to be comprehensive. Inevitably it won't be. But if we come to the 98 bis stage of the argument and there's a box in relation to a particular location and we haven't managed to find any evidence in it, then it shouldn't be a very big exercise to determine that that particular allegation is unfounded.

As to boxes which have elements in them --

[Trial Chamber confers]

JUDGE MAY: Mr. Kay, there would appear to be some attraction in this way of going on. I mean, it's -- it is simply a form of submission put in tabular form as opposed to written or oral.

MR. KAY: Yes. I've been talking about it with Mr. Nice throughout the last two weeks or so.

What I was proposing was this: It has to be done. A narrative form has to be written to put in argument and express and indicate what the issues are, but what I was thinking of doing, if it was possible given the software, was that this space be made available -- I don't reproduce ²⁵⁹⁶⁹ the whole schedule, but just if there are submissable aspects in relation to the evidence, I indicate it in the boxes and then it's easier for the Trial Chamber and the Prosecutor to locate the issue. I found it a very useful document to work from over the last two months dealing with the Kosovo aspect of the case, and I felt that it might just make it easier for everyone to focus on that particular aspect if the Trial Chamber wished that. I was going to annex it as a schedule. There were going to be other schedules, but this is a common document where -- which might be a useful way of moving around it.

[Trial Chamber confers]

JUDGE MAY: Yes. Mr. Kay, we think this would be of assistance, putting the arguments in schedule form.

MR. KAY: Yes. There will, of course, still be narratives. There has to be. It is not a tick-box situation, it's the end of it, but it is helpful.

JUDGE MAY: Mr. Nice, anything else?

MR. NICE: The only other matter that I have raised in written form is the proposition that some witnesses should be subject to a general scope of examination if chief or re-examination than has been regarded as appropriate by this particular Chamber. The proposition is supported by jurisdictions of one kind or another around the world. It's also supported by practice within this building, and it's a very important point because we are now reaching the position where there are witnesses, two distinct types, who it may be necessary to test rather more extensively than would normally be the case. ²⁵⁹⁷⁰ The Chamber can think, without my using names, of witnesses who have written contemporaneous books and diaries, the factual content of which is likely to be absolutely accurate and which should be before you as part of the library of material upon which you can work, but who, if called in the conventional way, might be so adverse to the Prosecution unless they were properly cross-examined that it would be impossible for us to call them, and you would simply be being deprived of extremely valuable contemporaneous material upon which you could rely. The other type of witness, in our judgement capable of being very valuable to you - we may not have time to call many of them - are those internationals as they're call, but international negotiators, diplomats, whatever you like, who dealt with the parties and have opinions that will give depth or provide you with the ability to give depth to the judgement that you wouldn't otherwise be able to do but whose opinions on some topics may not be opinions that we prosecuting would accept, and we would want to be able to test them in some way.

JUDGE ROBINSON: Some of them have written books too.

MR. NICE: Some of them have written books too, absolutely right. And then there's of course within that category there's the single witness category at the moment who at his own election would prefer to be cross-examined by all three parties because he doesn't wish to have direct contact with any.

And these witnesses for different reasons, in our respectful submission, justify a broader approach.

As to the first category of witnesses, those in whom there may be ²⁵⁹⁷¹ found some adversity or even hostility, we know that in one of your fellow Chamber's -- another Trial Chamber, we know that there is a practice whereby those witnesses are subject to cross-examination by Prosecution counsel pretty well from the word go because it's --

JUDGE MAY: So you call the witness and cross-examine them, do, you, under this practice?

MR. NICE: Well, examine or cross-examine. But you test the witness generally. And of course that is in line with, for example, what happens at inquiries of one kind or another where a counsel for the inquiry may examine a witness in chief in the conventional way and then test or may test the evidence at the re-examination stage. It's by no means unknown. Indeed, it's very a common practice. It's always interesting to see the degree to which how both Scotland, the merits of whose legal system are trumpeted not just by them but by many others on their behalf, and the United States of America in the federal jurisdiction have practices that allow this broader examination of witnesses without a narrow rule of hostility being found first. And in your truth finding function, because of course you're not here to find a just approving test of a conventional domestic jury trial in your truth finding function, you will, in our respectful submission, be assisted if with some witnesses we are able to examine them in this more general way.

JUDGE ROBINSON: If you destroy the credibility of a witness in one area, won't you also destroy his credibility in the other area?

MR. NICE: Only if one works on the premise that credibility is single, complete, and so on, which is perhaps -- ²⁵⁹⁷²

JUDGE ROBINSON: And integrated.

MR. NICE: Integrated. It's a very attractive proposition for us to have in mind as we approach our fellow human beings but it's probably unrealistic and we've probably seen many examples in this very case of witnesses whose evidence on one part of what they speak about is likely to be accepted by the Tribunal, whereas it may be manifestly seen to be flawed in other areas.

JUDGE ROBINSON: I think you hit the nail on the head when you say that it is used in inquiries, even in the common law system. It is really, I think, classically inquisitorial.

MR. NICE: And this is, of course, a system that although based on an adversarial system draws on other systems as it finds it appropriate to do so.

JUDGE MAY: Speaking for myself, I would find it easier to rule on this matter on concrete cases rather than a vacuum. It's difficult to make a general point. However, if there are concrete cases and there's one you've drawn to our attention, but if there are others, it may be that we could make a more reasoned approach.

MR. NICE: I will bear that in mind and proceed accordingly. Your Honour, I see the time. There is a short matter to be dealt with in private session, but I don't think there's anything else that we need cover in public session. I'm grateful.

JUDGE MAY: All right. We'll go into private session.

[Private session]

[redacted] ²⁵⁹⁷³

[redacted]

--- Whereupon the Pre-Defence Conference adjourned at 4.54 p.m.