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Thursday, 25 March 2004

[Motion Hearing]

[Open session]

[The accused entered court]

--- Upon commencing at 10.02 a.m.

JUDGE MERON: Please be seated. Madam Registrar, would you please call the case.

THE REGISTRAR: Yes, Your Honour. Good morning, Your Honour. This is case number IT-02-54-T, the Prosecutor versus Slobodan Milosevic.

JUDGE MERON: Thank you, Madam Registrar. Can I have the appearances for the Prosecution, please.

MS. DEL PONTE: Yes. The Prosecution is represented by the Prosecutor, Carla Del Ponte, and my colleague Geoffrey Nice, principal Senior Trial Attorney. Thank you, Mr. President.

JUDGE MERON: Thank you, Madam Prosecutor. Mr. Milosevic, can you hear the proceedings and understand me in a language that you understand?

THE ACCUSED: [Interpretation] I can understand you, Mr. Meron.

JUDGE MERON: Thank you, Mr. Milosevic. Mr. Milosevic, you are probably aware of the Rules of Procedure, and in particular Rule 15 bis (C), pursuant to which I have convened this hearing. I would now like to explain the situation to you, and you will then be asked to give your view on the issue.

On the 12th of March, I have received a report from the Presiding Judge of the Trial Chamber pursuant to Rule 15 bis (C). In that report, I ³²⁰⁷² was advised that by reason of Judge May's illness leading to his resignation, he will be unable to continue to hear the case against you. Rule 15 bis (C) provides that where the President is advised that one of the members of the Bench is unable to continue to hear a case before the Bench, he may either order a rehearing of the entire case or a continuation of the proceedings with a substitute Judge. However, after the opening statements provided for in Rule 84 or the beginning of the presentation of evidence pursuant to Rule 85, I am only authorised to order that continuation where I have the consent of the accused. This hearing has been convened for that purpose and for that purpose only.

As you should be aware, on behalf of the amici curiae, Mr. Steven Kay filed a document on the 22nd of March advising me that due to professional commitments elsewhere, he would be unable to attend the hearing today. In that filing, Mr. Kay advised me that he did not consider it appropriate for him to express a view as to whether there should be a rehearing or a continuation of the trial with a substitute Judge. He considered that you, Mr. Milosevic, would be able to express your own view on this matter, and not knowing your view, he did not wish to state a conclusive view of his own for fear of damaging your interests. Before I ask you whether you do give your consent to a continuation of the proceedings, I should explain to you that if you refuse to give your consent, then the question, then the issue reverts back to the Trial Chamber under Rule 15 bis (D). Under Rule 15 bis (D), even without your consent, Mr. Milosevic, ³²⁰⁷³ the Trial Chamber has the authority to continue the proceedings with a substitute Judge appointed by me provided that the Trial Chamber is satisfied that it is in the interests of justice that the trial proceed. If the Trial Chamber makes such an order, I will appoint a substitute Judge as soon as practicable. The substitute Judge will be permitted to assume his or her position on the Bench only after he or she has certified that he or she is familiar with the record of the proceedings. I hope that I have made the situation clear to you, Mr. Milosevic. I have convened this hearing to ascertain whether you consent to a continuation of the proceedings. If you do consent, I can order a continuation with the appointment of a substitute Judge under Rule 15 bis (C). If you withhold your consent, then it will be for the Trial Chamber to decide under Rule 15 bis (D) whether, despite your lack of consent, the interests of justice warrant a continuation of the proceedings with a substitute Judge under Rule 15 bis (D). In either circumstance, any substitute Judge that may be appointed by me will be required to certify that he or she is familiar with the record of the proceedings prior to his or her assuming a position on the Bench.

I would now like to ask you a very specific question, Mr. Milosevic, and I would be appreciative if you could answer my question directly.

Do you consent to a continuation of the proceeding -- a continuation of the proceedings with a substitute Judge, Mr. Milosevic?

THE ACCUSED: Mr. Meron, since I did not have an opportunity of putting forth any kind of request regarding my basic rights when decisions ³²⁰⁷⁴ were made on time for preparation, as you call it, and time that is being made available to me, I would like to take this opportunity first and foremost to present such a request.

First of all, I ask for a review of the time given to me for preparation, namely the 90-day period assigned to me as opposed to the time that this false Prosecution had; three years' time, as a matter of fact. It is many times less, the time given to me. It should be reviewed, nevertheless, from the point of view of the opinion of physicians, namely that I can work only three days a week. So even if you were to adhere to this meager decision of 90 days, according to the position of your own physicians, it would have to be 30 weeks. I believe that I need much more time anyway.

I believe that there is no need for me to expound on this any further.

Secondly, I ask you to review and change the decision of granting me 150 days for my half time, which is two times less than the time used by the side opposite. The mathematics were actually based on the fact that the other side used less time because, according to Rules 89(F) and 92 bis, they presented a majority of their witnesses on the basis of these two Rules, to the detriment of the public, because giving written statements, and practically without an examination-in-chief, was done in contravention of the principle of the right to a public trial. I want all the witnesses that I'm going to call to testify in public, not by way of written statements. Therefore, I believe that I need far more time than the time calculated on the basis of the time used up by the other side, ^{32075 BLANK PAGE 32076} which is no doubt to the detriment of the basic principle of having a public trial.

I believe that the other side should not benefit from jeopardising the principle of having a public trial, nor should this work to my detriment. My request -- my request, therefore, is for you to re-examine that position as well.

Thirdly, I ask you yet again to release me, to set me free, because under these circumstances I'm prevented from exercising the right that you declared, namely, in your words, to defend myself, because I do not have the possibility of freely and without supervision communicating with potential witnesses. The other side called all its witnesses. There is no danger of me affecting them in any way. And also there is no danger of me disappearing somewhere. It is not my objective to disappear. It is my objective to win, to prevail, to show what the truth is, because this false Prosecution already failed during its half time. So my three requests -- so my three requests pertain to the time for preparation from the point of view of its actual duration and the fact that I was given instructions that I could work only three days a week. Secondly, it pertains to the length of my half time; and thirdly, it relates to release. It would also be necessary for you to establish, in accordance with medical opinions of your physicians, when you're going to start counting my time. They probably have to take their own views with regard to this matter on the basis of the information made available to them. I believe that you should look into these requests and decide accordingly. ³²⁰⁷⁷

JUDGE MERON: Mr. Milosevic, I can assure you that we are all very concerned about your health, and we are sympathetic to the impact that it has on your ability to prepare your defence, and we will do our very utmost to assist you in any way we can.

I have been advised that the Registrar created unprecedented facilities at the Detention Unit to facilitate your preparing your defence. You could have, incidentally, Mr. Milosevic, made things much easier for yourself if you had agreed to be represented by a lawyer. However, you will understand that matters pertaining to the resumption of the proceedings and the time given to you to prepare your defence are within the exclusive competence of the Trial Chamber. They are not within my competence, and they are not within the purpose and object of the hearing which I have convened today.

I can assure you that the Trial Chamber will receive a transcript, a full transcript, of today's proceedings, including the comments which you have made this morning, and will be advised of your concerns. You briefly mentioned also the question of communications, and on that it is my understanding, Mr. Milosevic, that you are not subject to any communications restrictions at the moment, so this is not an issue. It is a moot issue. However, I might add that the limitations which had been imposed upon you in the past were imposed in compliance, in full compliance, with the applicable Rules.

Having said so, I would like to return and ask you whether I could have your direct answer to the question which I raised earlier and to which you have not yet responded. ³²⁰⁷⁸

THE ACCUSED: [Interpretation] Mr. Meron, you know full well, I believe - I hope - that I consider this Tribunal of yours to be illegal because it is not based on the Charter of the United Nations. Of course I have no intention of declaring my views on your administrative issues. As a matter of fact, I consider this so-called Tribunal to be a means of war against my country, which is still going on and --

JUDGE MERON: I'm terribly sorry, Mr. Milosevic, but this is really not pertinent to the subject of this hearing and I have to interrupt you. It is -- I am assuming that I should derive the conclusion from your comment that you do not wish to grant a consent to the continuation of the hearings as I cannot understand the comment you have made as amounting to a clear and unequivocal consent to continue the proceedings with a substitute Judge. As a matter of fairness to you, I would interpret your comments as amounting to refusal to consent. I see no reaction from you which would suggest that my interpretation would not be correct and, therefore --

THE ACCUSED: [Interpretation] Mr. Meron, your interpretation is not correct from the point of view of the fact that, since I consider your Tribunal to be illegal, I do not wish to declare my views on matters that have to do with administrative solutions to any problem that you may raise here. It has nothing to do with the core of the matter.

JUDGE MERON: Thank you, Mr. Milosevic. Then I have no choice but to adhere to my view that you have not granted us equivalent consent to continue the proceedings, and therefore as a matter of fairness to you, let me repeat, I do interpret your comments as amounting to refusal to ³²⁰⁷⁹ consent.

As you have refused your consent, I have no authority to order a continuation of the proceedings, and I therefore refer the matter back to the Trial Chamber under Rule 15 bis (D). It will therefore be for the Trial Chamber to determine whether the interests of justice warrant a continuation of the proceedings with a substitute Judge without your consent, or whether a rehearing should be ordered. I take it -- does the Prosecutor wish to say something?

MS. DEL PONTE: Nothing particularly, Mr. President. I was -- just to say that I'm not a false Prosecutor, I am The Prosecutor, first. Second, I want to say that we agree; the accused has withheld his consent and the Prosecution agrees that silence or not responding on his part should be regarded as an absence of consent because, of course, consent is a positive act.

Thank you, Mr. President.

JUDGE MERON: Thank you. Thank you, Madam Prosecutor. And at this stage I would thank the parties for their appearance and adjourn the hearing.

--- Whereupon the Motion Hearing adjourned at 10.22 a.m.