³²³⁵⁶

Thursday, 2 September 2004

[Open session]

[The accused entered court]

--- Upon commencing at 9.04 a.m.

JUDGE ROBINSON: The Chamber has two rulings to make this morning. The first is on the application of the accused for further medical evidence, and the second is on the assignment of Defence counsel. I now give the Trial Chamber's decision from which I have dissented from the application of the accused for further medical evidence. Without challenging any finding made in the reports of either cardiologist instructed by the Trial Chamber and following the conclusion of the debate on the question whether counsel should be assigned, the accused asked the Chamber for time to obtain an expert from Russia, from Serbia, from Greece because he saw the evidence of the cardiologists, particularly that of Professor Tavernier, as a manipulation aimed at depriving him of his right to speak. The sole reason advanced for concluding that manipulation was involved was the fact that Professor Tavernier is from Belgium which is the seat of NATO. In the opinion of the majority of the Trial Chamber that submission does not provide a basis for considering that it would be contrary to the interests of justice to make a decision on the matter of assigning counsel on the material presently before the Trial Chamber. My own view is the lateness of the application, a procedural deficiency should not prevent the accused from challenging the medical evidence on an issue as substantive, as fundamental as his right to defend himself. ³²³⁵⁷ That's the decision.

This is the ruling on assignment of Defence counsel, and I should say that a fuller written decision will be issued shortly. In its reasons for its decision on the Prosecution motion concerning assignment of Defence counsel of 4 April 2003, the Trial Chamber, while holding that the accused had a right to defend himself also held in paragraph 40 that the right to defend oneself in person is not absolute and that it would keep the position under review, also in paragraph 40. The health of the accused has been a major problem in the progress of the trial. In the Prosecution's case the trial was interrupted over a dozen times on account of the ill health of the accused, thereby losing some 66 trial days.

The Defence case that was scheduled to start on 8th June was postponed on five occasions, again on account of the ill health of the accused. The Trial Chamber requested Dr. Van Dijkman, who has been treating the accused for cardiological problems for some time, and Professor Tavernier from Belgium, who was identified by the registrar as a cardiologist with no prior involvement in the treatment of the accused, to examine the accused and consider all relevant information pertaining to his health in the context that he represents himself, and report to the Trial Chamber on the fitness of the accused to continue to represent himself and the likely impact on the trial schedule should he continue to do so. Both doctors reported that the accused suffers from severe essential hypertension and that his condition was such that a hypertensive emergency, a potentially life-threatening condition could develop. They ³²³⁵⁸ also found that one explanation for his medical condition was his failure to adhere to the proposed therapeutic plan.

Blood tests carried out on the accused confirmed this conclusion. It is plain from the medical reports that the accused is not fit enough to defend himself and that should he continue to represent himself, there will be further delays in the progress of the trial. The issue before the Chamber is whether the right of an accused set out in Article 21 of the Statute to defend himself in person is subject to qualification, and if it is, whether in the circumstances of this case that right should be qualified by assigning counsel to represent the accused.

The Chamber is satisfied on the basis of the Tribunal's Statute and the jurisprudence, as well as the law of many domestic jurisdictions that the right of an accused person to represent himself is not unfettered, and in the circumstances of this case, it is both competent to assign counsel to the accused and in the interests of justice to do so. We shall, therefore, do so.

The fundamental duty of the Trial Chamber is to ensure that the trial is fair and expeditious. The concern of the Chamber is that, based on the medical reports, there is a real danger that this trial might either last for an unreasonably long time or, worse yet, might not be concluded should the accused continue to represent himself without the assistance of counsel. On the other hand, the Chamber is satisfied that if counsel is assigned to the accused, measures can be devised to ensure that the trial continues in a manner that is both fair and expeditious. ³²³⁵⁹ Having decided to assign counsel to the accused, it will be the duty of the Chamber to ensure that the role of assigned counsel is so fashioned that the trial process, while being expeditious, will protect the fundamental right of the accused to a fair trial. That's the ruling, and as I said before, a fuller written decision will be issued shortly.

We now proceed to the second phase, which is submissions from the parties --

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Yes, Mr. Milosevic.

THE ACCUSED: [Interpretation] Mr. Robinson, I told you yesterday already that I did believe, and I believe now, that the assignment of counsel directly violates my fundamental rights. Please give me answers in relation to that conviction of mine. I would like to present my views, my conviction, very briefly in view of the petition that was handed over to the President to the Security Council on behalf of a hundred lawyers from many countries, from three different continents, and which contains arguments on the basis of which you cannot act in such a way. So I ask you to give me an answer so that I could at least understand your position, how you intend to deprive me of this fundamental right. I'm going to read only a few quotations to you from that document.

JUDGE ROBINSON: I'm stopping you, Mr. Milosevic. I will not hear that. The Chamber will not hear that. We have considered this matter. We have gone through that exercise, that debate. If you wish to challenge the Chamber's decision, there are avenues open to you, but the issue will ³²³⁶⁰ not be redebated now. I will not hear you on that issue at all. We are going to proceed now to the --

THE ACCUSED: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: I've already told you I am not hearing you on that issue. If you wish to challenge the Chamber's decision there are courses that are open to you to do so. But we will absolutely not return to it here. We will now proceed to the next phase.

THE ACCUSED: [Interpretation] Mr. Robinson, in that case I want the Appeals Chamber to consider this decision of yours, which is illegal, which violates international law, which violates every conceivable covenant on human rights. At the moment when I am supposed to use -- exercise my right to defence, you decided to deprive me of that right. I believe that that's a scandal. You cannot deny me the right to defend myself.

JUDGE ROBINSON: I'm stopping you. I've heard that you intend to appeal. You can take the necessary measures, and you can have the assistance of the amicus on that matter, but we will proceed with the consideration of the modalities for the assignment of counsel. Mr. Nice, you will be the first speaker.

MR. NICE: Modalities for the assignment of counsel in the circumstances summarily outlined by Your Honour, and of course more fully developed in the fuller ruling to which you've referred, have been addressed by us already in our filings. I'll take you briefly to them, having reflected overnight on whether they need any adjustment in light of argument and come to the conclusion that we don't think they do need any ³²³⁶¹ or much. Nevertheless, it's probably helpful, given the public nature of this hearing and possibly the public interest in it, that we should explain in summary what our proposals have always been and how indeed they match closely, as I forecast or summarised yesterday, the modalities imposed by one of the domestic common law jurisdictions that does, in certain circumstances, impose counsel.

And if the Court would be good enough, if it can find it to go to attachment B of our second extensive -- rather, our first submission of the 26th of July on this topic. The Court will perhaps be reminded that our proposals were, substituting the word "assignment" where appropriate, that the Trial Chamber would have to be actively involved in the management, or might have to be actively involved in the management of a defendant's case, an accused's case in these circumstances; that assigned counsel would have to have full discretion in respect of a defence case, identifying which witnesses to prepare, call, and present, but that assigned counsel should be free and probably should be encouraged to discuss all aspects of preparation, and indeed, presentation of the Defence case with this accused. The assignment, nevertheless, being an assignment of counsel by the Chamber, so that the essential relationship of counsel would be between the counsel and the Chamber. We've suggested from the beginning that it would be highly desirable for one of the amicus to be the assigned counsel and respectfully draw to your attention that the terms upon which the amicus have been engaged, going back to August 2001, have already been varied to meet the changing circumstances of this case, so that whereas their ³²³⁶² initial appointment, by an order of the 30th of August of 2001, was to act in, amongst other things, in cross-examining witnesses and so on, but amongst those things it was also to act in any other way which designated counsel considers appropriate to secure a fair trial. Thereafter, following an application by the amicus that their role towards the end of the Prosecution's case and into the Defence case should be further clarified, they thereby clearly evincing an intention to continue assisting the Court, an order was made on the 27th of June, that was the order appointing Mr. McCormack, but then there was an order of the 6th of October of 2003, which dealt with various other procedural matters, but said this: That in light of or having regard to the continuing medical condition of the accused and the desirability of the amici curiae giving greater assistance to the accused, the amici curiae were authorised to receive such communications as the accused may make to them and to act in any way to protect and further the interests of his defence. And that was clearly an order which they found one they could comply with, for they have indeed been complying with it as we know from filings subsequently made where they reveal that they have been able to communicate with the accused. Although they have made it absolutely clear, and this is important in light of the potential for their being assigned to the case, they made it clear in their filing of the -- I think the 13th of August of this year that they have at no stage represented the accused nor received instructions from him. Thus they remain sufficiently independent of him to take the appointment, in our submission, that assignment would constitute. ³²³⁶³ I return to our attachment B, again using the term "assigned counsel" as appropriate, and at page 2 suggest that counsel, once assigned, should be instructed by the Chamber to identify witnesses to be called and to arrange that they be called. That can now be, of course, significantly amended because we know that a number of witnesses of the accused's choosing have been the subject of arrangements to bring them here to court starting next Tuesday so that that part of our proposal could be tailored to reflect the further development that has already -- or preparation that has already been made. We made the point at subparagraph B on our page 2, a point I made yesterday that assigned counsel would not be expected or even permitted to conduct a fresh inquiry into the Defence case because it isn't necessary in the circumstances of this case given their involvement to date, everybody's understanding of what the accused intends to advance by way of his case, and the considerable body of material available to various parties in the court but certainly and particularly to the amicus showing what witnesses it is that the accused wishes to call. And indeed the assigned counsel should be ready to take witnesses on the date already identified for the restart of this case.

We urge the Court to require of assigned counsel that in their preparation of witnesses they should -- they should turn to the provisions of Rule 89(F) for the presentation of evidence in chief for two distinct reasons. First, Rule 89(F), for those listening who may not be familiar with the Rules, allows evidence in chief to be given in written form. The first reason is this: It will save a considerable quantity of time where ³²³⁶⁴ time is extremely valuable. But that second rule is that by a Rule 89(F) statement being made ahead of a witness giving evidence to all parties including the accused himself will enable him to review that evidence, ahead of its coming, in order to identify what in his judgement may, if anything, have been omitted from what he would wish to be given to the Court, and I'll come to the significance of that later. But having the evidence in written form would be particularly valuable for that second reason.

Steps would have to be taken to ensure that the accused no longer spends time that his medical condition indicates he should not be allowed to spend in contact with or preparation of witnesses. And that covers the early parts -- or the recommendations that we make for the early parts of the work of the assigned counsel.

I turn then to what in our respectful submission could happen, a matter entirely for the Chamber today but sequentially really to come immediately after assignment of counsel; namely, the accused should be reminded, or could be reminded, of his right to representation by counsel of his own choosing, and he should be advised or could be advised of the limitations on his own ability to prepare witnesses, and encouraged to make use of counsel of his own choosing in all aspects of preparation and presentation of his case.

In our submission, were he to make that sensible decision, his own associates are those who it would be reasonable for him to appoint, I think rather as His Honour Judge Kwon suggested yesterday. And we know from the published newspaper article that they are, in any event, already ³²³⁶⁵ almost fully in the position of Defence counsel, as one of them said, being only marginally distinct in the nature of the work they do from Defence counsel.

Were the accused to take the sensible step, were he to be reminded of the wisdom of doing so, of appointing his own counsel, then he would be in the position to conduct through those counsel or that counsel his own defence, calling the witnesses he wishes to call in the order he wishes to call them starting next Tuesday. And the role of assigned counsel would perhaps become closer, then, to the role of stand-by counsel, a term used in one of the other cases where this problem has arisen in this Tribunal. In the circumstances of the accused electing to appoint counsel and to appoint one of his associates as counsel, then of course there would be, probably, no role for assigned counsel in questioning witnesses so that the accused, through his counsel, could have full control of that. However, if the Chamber so decided, and I now revert to the alternative -- or to considering the alternatives, either the assigned counsel running the case or the accused's own counsel running the case. In either of those circumstances, if the Court so decided, the accused could be permitted, at the end of examination-in-chief or at the stage of presentation of the 89(F) statement, Rule 89(F) statement, he could be permitted to identify topics that he believes have not been covered and in respect of which he would like personally to ask some but perhaps a limited number of questions. Similar considerations could arise at the stage of re-examination where with the Court's leave he might ask some questions himself. And it is with that possible procedural practice in ³²³⁶⁶ mind that I emphasise again the real value to this process of examination-in-chief being dealt with pursuant to the Rules, the Rule 89(F), giving, as it were, advance notice to the accused of precisely what the scope of evidence in chief would be.

If -- that, I think, is essentially the proposal we make with just this additional rider: If the Chamber reminds the accused of his right to appoint his own counsel, or indeed encourages him to do so and he declines but his associates remain available to him and present at court, then it will be possible for him to reconsider his position at a later stage in the trial. The Chamber may even wish to invite him at some stage to consider doing that. But if the accused declines all invitations to appoint his own counsel so that the conduct of the case is in the hands of assigned counsel, then the Chamber may wish to do a number of things - I've set out what we think is a reasonably exhaustive things but I'm probably missed some - a number of things to ensure that his position is considered at various stages.

Here are some examples: If assigned counsel is running the case, he or she would no doubt wish to identify the witnesses to be called. We've got pretty well in the defendant's and the accused's own list the first 50 witnesses, but at a later stage or some stage through the Defence case the next series of witnesses might need to be identified. That's an exercise that assigned counsel could do, announcing his conclusions to the Chamber, at which stage the Chamber could invite the accused to contribute by saying whether he approved, disapproved, agreed, disagreed with the list of witnesses. That could be done in Court. It could be done in ³²³⁶⁷ writing. So far as the Prosecution are concerned, it could be done absolutely ex parte. In that way, he can be invited to contribute to the maximum extent possible in the identification of the witnesses to be called. And we suggested in our original filing that this type of exercise, and there are probably others of a like kind which would allow the accused to be involved, would all be the subject of recording at the Chamber's direction so that a full record of the degree to which the accused was invited to participate and did participate or declined to participate could be made and the --

JUDGE ROBINSON: Mr. Nice, in the event that the accused disagreed with the list of witnesses, what do you foresee as happening?

MR. NICE: I foresee that in light of -- in line with the authorities we've laid before you and in line with the need for the assigned counsel to fulfil the duty imposed on him, his decision would have to be the final decision. But of course he - he or she - would, no doubt, wish to take into consideration representations made by the accused, and it could be a matter of reasoned decision by him recorded in such way as the Chamber may determine that the witnesses called are as he or she eventually decides.

And as I said earlier and repeat, this can all be done ex parte. It doesn't have to be done in the presence of the Prosecution. And certainly it doesn't have to be done in public. But I think ultimately the assigned counsel on the authorities and given the problems that we've faced has to have the right.

But of course that reality has to be set beside the reality that ³²³⁶⁸ the accused can, starting now, or it may be at a later stage, elect to proceed to his own appointed counsel and be completely in charge of the witness list. So what we are proposing at all stages guarantees him maximum involvement and retains for him the maximum rights that he has to present his own case through his own counsel.

Can I take Your Honours very briefly to two passages of our second filing of the 19th of August of 2004, where we respectfully suggest that the Chamber will find support for our detailed proposals in the practices pursued now in Scotland in respect of that category of offences where counsel can be imposed on an otherwise unwilling defendant.

JUDGE BONOMY: It has to be observed, Mr. Nice, that, that procedure has never been applied and is very much a matter of theory at the moment, and indeed not only theoretical but controversial.

MR. NICE: Your Honour, we have made inquiries through the Scottish authorities, and have so far - although yes, it's a matter of controversy - have not yet found, I think, identified problems at the decided level, but I'll dig out my report that I've received and check whether that needs any further comment.

But, Your Honour, the proposals in any event, if I can take you to paragraph 57 of the sexual offences -- paragraph 57 of our second filing. The Sexual Offences Procedure and Evidence Scotland Act we respectfully suggest implements the very position that we propose in encouraging the accused to assign his own counsel. Should he fail to do so, appointing, I think is the word used in Scotland, counsel to represent the accused should he refuse to assign a representative himself. ^{32369 BLANK PAGE 32370} The provisions go on to make it impossible for the accused or defendant in Scotland to dismiss the appointed representative and require of the appointed representative that he or she should attempt to obtain instructions from the accused but that if he or she cannot obtain such instructions or if such instructions are perverse or inadequate that he should act in the best interest of the accused.

At the same filing, if Your Honours would be good enough to come back to page 14 and paragraph 36, the same Scottish provisions propose that there be a system for recording advice received and decisions made by -- should -- and decisions made under the supervision of the Chamber and that where inadequacy in the defence is a consequence of the accused's -- I beg your pardon. That's what's proposed. Our argument is that where inadequacy in the defence is a consequence of the accused's lack of preparation, while unfortunate, it doesn't undermine the trial or create a significant ground of appeal.

I'm just looking at something if Your Honours would give me one minute.

Responsive to His Honour Judge Bonomy's observation and subject to further correction, I understand that the desirability of a code was recognised but that no statutory code has yet been created. I may be wrong in that, but I understand and I am informed that that is the position and that the Law Society has been invited to amend the existing code to fit in perhaps with recommendations, but Your Honour, I take it no further than that at the moment.

Your Honours, those are our observations and although they do not ³²³⁷¹ significantly change the recommendations we made or submissions we made earlier, I think it helpful to set them out in public so that it can be understood and never misrepresented that the object of -- that our submission was directed to a timely and fair trial with the accused being given at every opportunity, first, the chance of appointing counsel so that he can sensibly, through counsel, conduct every aspect of the case, subject of course to counsel's necessary discretion, but that B, if he declines to take that course, he can nevertheless be involved in the conduct of the Defence case to a very significant level and that it will be obdurate and negative of him to resist one or other of the approaches proposed that are designed to assist him and to do nothing else. Can I help further at this stage? I do have one or two other things to make but I --

JUDGE BONOMY: Mr. Nice, in your submission yesterday, you were critical of the proposal of the amici as to how assigned counsel might work. Now, can you clarify that submission for me, please? I didn't follow it at the time, and I would be grateful if you could show me where in the submission made by the amici they part company with, broadly, the suggestion that you're making.

MR. NICE: My concern about the amici's submission was that -- amici's submission was that as I understand it, and I'll be corrected if I'm wrong in this understanding, they would have, in assisting the accused, found themselves at a level of proximity to him that would have made them effectively his counsel rather than assigned by the Court, and as his counsel they would then be exposed to disruption if ³²³⁷² by their judgement being at conflict with the accused's or by some conduct of the accused they found themselves professionally embarrassed and not able to continue, and it's that and that alone that was our concern. It's --

JUDGE BONOMY: One of the Scottish provisions is that any counsel appointed in this way should be required to act in the best interests of the accused. Do you have difficulty with that?

MR. NICE: I suppose it's a matter -- it's always a matter of what you mean by "in the best interests of the accused."

JUDGE BONOMY: It is notable that English legislation is different, and I understand there may be reasons of practice for that, but one would have to set, would one not, a test for or a standard for the conduct of the case by whichever counsel is appointed, and I'm anxious to know what difficulty you see about that standard. And secondly, if that were the standard, would it not in fact require the sort of attempt at cooperation that is outlined in the submission made by Mr. Kay?

MR. NICE: We've already, I think, submitted that there should be attempts at communication between assigned counsel and the accused and that they should not only happen at the beginning but they should happen continuously. It will then, of course, be for the accused to decide whether those communications are possible or not. Assuming that they are, I suspect an issue could arise as to what is in the best interests of the accused between the accused and assigned counsel. And let us be blunt about it. Our arguments have often included the suggestion they did yesterday, that the accused has an agenda that is ³²³⁷³ non-forensic, that is publicity driven, and that addresses an audience other than Your Honours. Counsel assigned by the Court, seeking to act in the best interests of the accused would almost certainly respond to the interests of the accused in this Court, which would be to meet, and so far as is possible, to call evidence to defeat the legal case brought against him. On that divide, we would have absolutely no hesitation in saying that counsel's judgement should be the one that would be appropriate and that the definition of best interests of the accused, to come back to Your Honour's direct question, should be the best interests of the accused in court and in these proceedings.

Now, that's only the first and most obvious way in which there could be a conflict of approach, and I avoid the phrase "conflict of interest" for obvious reasons, conflict of approach between assigned counsel and the accused, because of course, even if both counsel and an accused are looking at a problem from the correct forensic point of view, judgements may differ as to which witness should be called. At the moment this doesn't appear to be the sort of case, moving now for an example to the domestic setting, where there could be a real radical make-or-break decision about running an alibi or not running an alibi or calling the wife or not calling the wife in a domestic case, something of that sort. It doesn't appear at this stage to be obvious difficulties of that kind arising, but at that stage, if there were proper forensic disagreements or differences of view, then the test would still be the same test, what is judged to be in the best interests of the accused from the point of view of this trial and its outcome, and on the authorities it would be ³²³⁷⁴ counsel's opinion and view that would have to rule. But of course it would rule on the proposals we've made with a full record being available, providing the accused is prepared to cooperate, of the way in way views diverged, and that record would always be available for consideration at two stages, and I'll come to this because I haven't mentioned this before. The second of the two stages is the obvious one, on appeal. But it does occur to me that there is perhaps a step that the Chamber might wish to have in mind as a step to assist the accused in the particular circumstances of assigned counsel envisaged here, and that step would be a step coming towards the end of the accused's case when, if there had been intervening steps where disagreements or differences of view between assigned counsel and the accused had been identified and recorded, where the Chamber itself could review the overall differences of view to decide whether, given its own potential to call witnesses and to be active in the running of the case, it could, while not overriding Defence counsel's view -- assigned counsel's view, make its own decision as to what additional witnesses it might call.

So for example, to come to the particular, if in the conduct of the case it became obvious that assigned counsel was excluding altogether some category of evidence that the accused wanted included, then at the end of the case, on a general review, the Chamber might say to itself, "Well, we recognise that there's this difference, and while in no way challenging the approach of the assigned counsel, we nevertheless take the view that some evidence of this category could or should be before us." ³²³⁷⁵

JUDGE ROBINSON: Would there be a substantial difference if the instruction to assign counsel was to act not just in the best interests of the accused but in the best interests of the accused and the administration of justice?

MR. NICE: It was probably my oversight for not thinking of that earlier, especially in light of the way the Prosecutor outlined the reason for assigned counsel in civil law jurisdictions. The second -- the formulation of Your Honours that there should be a twin purpose of -- or twin purpose in the terms of the assignment of counsel is to some degree a reflection of what counsel does in any event, because although, of course, counsel has a duty to represent the interests of his or her client, and although that duty can be extremely combative and defensive in an adversarial system, there is nevertheless a duty to serve the interests of justice which primarily takes effect in the form of obeying the rules and ensuring that there is never any corruption, accidental or intentional, of the rules but could in this Tribunal arguably be interpreted a little more widely given the established duty here, not just to resolve a combat but to inquire into the truth. However, I think it would, if I may say so, be fairly difficult for assigned counsel to be reflecting such an instruction by calling evidence that was not actively, not positively, in the interests of the accused as he judged it, because the interests of justice or the interests of the administration of justice might involve calling evidence that was not strictly favourable to an accused, and I think assigned counsel would find that a very difficult course to take. Nor might it be necessary to ³²³⁷⁶ trouble assigned counsel with such a duty given the specific scope that there is for the Court to identify its own witnesses to be called. Now, I don't know that I've answered that very tidily. Let me try and tidy it up, going back to my original proposition. If the -- for example, if it was identified as a difference between counsel and the accused that a whole category of evidence had been eliminated from consideration by counsel but the Chamber regarded it as perhaps in the interest of the due administration of justice that something from that evidence could be properly before it, why then, without - embarrassing is the wrong word - without making life more difficult for assigned counsel the Chamber could call the evidence itself, and thus meet the second limb, meet itself the second limb of the proposed instruction.

JUDGE ROBINSON: But as you say, a counsel in any event will have that in mind as an officer of the court.

MR. NICE: As an officer of the court but there is a limit as to how far that duty can take somebody whose primary instruction will be, of course, the interests of the accused.

JUDGE ROBINSON: Yes.

MR. NICE: I have a couple of matters of detail that I would want to raise at some stage. I know at the moment you're just looking at the modalities. I also know that people jumping up and having two bites of the cherry could be inconvenient. Would you like me to deal with them now or later?

JUDGE ROBINSON: Are they related to this issue? ³²³⁷⁷

MR. NICE: One in a sense does, and perhaps I better turn to that one and leave the others for later. Or two do.

JUDGE ROBINSON: Yes.

MR. NICE: The second of the two is there is already outstanding an order from the Chamber in respect of whether the accused should give evidence himself, which of course would have to be under the solemn declaration, when and how long it would be likely to take. Obviously that's something that has to be dealt with. But the first and more substantive issue I'm concerned about on behalf of the Prosecution is the rationing of time, if I can put a short title to the topic, by which I refer to the rationing of time as between the indictments and, I suppose, also the order in which evidence should be called for the indictments. One of the clear duties falling on assigned counsel, whether he or she is able to be in discussion and negotiation with the accused or not, and the same consideration, let me say, would apply if the accused does decide to appoint his own counsel, would be to decide how much time to devote to Croatia, how much to Bosnia, how much to Kosovo and the order in which to call the evidence on those topics.

In our filings we reminded the Court of the difficulty that was encountered, time and again, with the accused's cross-examination when he would use time, in our respectful judgement, badly, confining to the end the time when he would raise relevant issues thus forcing an extension of his time.

In this case where the Court has made it clear that there is only 150 days available for the Defence case, subject of course to other ³²³⁷⁸ considerations at a later stage, but basically 150 days, it would be very important that assigned counsel recognises the need to present evidence on all three indictments.

JUDGE ROBINSON: You say only 150 days, Mr. Nice. It's as much as the Prosecution had.

MR. NICE: Yes. I'm looking at it from the point of view of assigned counsel. That's the limit that's on him, but you're right of course to correct me on that approach.

So rationing is very important and has to be addressed right from the beginning. As the Court knows, we would have -- we still would press the Chamber to require evidence to be taken in the chronological reason -- order, Croatia, Bosnia, Kosovo, for various reasons set out in our filings which I needn't repeat here. They are, as it happens, public documents.

I can see from the accused's list of witnesses that some preparations have already been made to take Kosovo evidence earlier than other evidence. It would be a matter for the Chamber, possibly in discussion with assigned counsel, once assigned, whether that order of calling evidence should be maintained or should be changed. There is --

JUDGE ROBINSON: You're asking that it be taken in the order Croatia, Bosnia, Kosovo.

MR. NICE: Yes.

JUDGE ROBINSON: I think the Chamber had earlier required that the evidence be taken chronologically but left it to the accused to determine ³²³⁷⁹ the order.

MR. NICE: I think -- I think that the Court's order was that the evidence should be presented in an orderly way, indictment by indictment, without actually specifying that it should be chronological. Since the filings are public it's probably as well not to be obscure. The reasons for taking it chronologically include the possibility, given the state of the accused's health that the case may stop at an early stage and it's better in those circumstances if the history is developed chronologically for evidential and forensic reasons but also and quite bluntly because the heart of the case may be thought to be the Bosnian case and it's certainly the one where the most serious allegations made against this accused, and for all sorts of reasons such as the ones I've just identified it would be infinitely preferable that the material is taken chronologically.

Although preparations have been made to take the Kosovo evidence early, the first witnesses are very --

[Trial Chamber confers]

JUDGE KWON: Of course it is for the Trial Chamber to decide later, but we left it to -- up to the accused.

MR. NICE: I think you did.

JUDGE KWON: Yes. In terms of indictment, Kosovo one proceeded before the other two, and the Prosecution started the Prosecution's case from Kosovo. I think speaking for myself, it's up to the Defence.

MR. NICE: As Your Honour pleases, but the Kosovo indictment was taken first for various procedural and accidental reasons. ³²³⁸⁰

JUDGE KWON: And if I can make this general observation, because Prosecution's submission departed a bit from the point where we started. The only single reason of discussion of assigning a counsel is because of the medical condition of the accused not because of his non-forensic or non-cooperative attitude toward these proceedings. So we should bear that in mind always.

MR. NICE: Your Honour, of course, but the modalities, to use the Court's term, by which that imposition should take effect will reflect the fact that the counsel will be bringing a professional judgement to bear, and must bring a professional judgement to bear upon the issues at hand, and that professional judgement will inevitably require counsel to make his or her own decision about what is relevant and what is other than relevant in this case, and that's why I've raised some of the issues I have.

But, Your Honour, I'll -- rationing of time is the headline, and if the other points don't find favour then I won't press them any further, but rationing of time as between the indictments is very important. Unless I can help further on that, the other point I will come back to later.

JUDGE ROBINSON: Thank you Mr. Nice. Mr. Kay.

MR. KAY: In view of the Trial Chamber's indication last night of consideration of the modalities, I've drafted a document overnight to try, in some way, put a shape on what might have been the order. If I could just hand that in to the Court now. And it might be a useful -- ³²³⁸¹ There are always improvements that can be made on drafts and the first point I urge before the Trial Chamber is really dealing with it in the reverse of the Prosecutor's order, and that is that the accused be granted seven days in which to nominate counsel or counsels to be assigned to him by the registry.

I've included a handwritten sentence here that: "Thereafter the accused may nominate additional counsel if he so chooses for his representation," as it may be an important issue that change be necessary or someone that the accused chooses is not available until a later date and so someone commences working with him. It's just to enable that option.

Before I go any further, I've had in mind when I've drafted this, something that I'm bound by, which is the Code of Conduct for counsel, and that deals, perhaps, with a number of the issues that have been raised by the Trial Chamber. For instance, in Article 10 there are provisions concerning competence, integrity, and independence. "In the course of providing representation, counsel shall act with competence, skill, care, honesty and loyalty, exercise independent professional judgement, render open and honest advice, never be influenced in the matter of his representation, preserve their own integrity and that of the legal profession as a whole, never permit independence, integrity and standards to be compromised by external pressures."

In relation to best interests, Article 11 cites that "counsel shall represent a client diligently and promptly in order to protect client's best interests." There are provisions of communication, ³²³⁸² confidentiality, and then Article 14 dealing with a conflict of interest which may be the administration of justice best interest issue we were dealing, "Counsel owes a duty of loyalty to a client but counsel always has a duty to the Tribunal to act with independence in the interests of justice and shall put those interests before his own interests or those of any other person, organisation, or state."

Any counsel appearing as Defence counsel, and that includes amici curiae, are bound by the Code of Conduct. There may be, in relation to this particular situation that we would be faced by the Court, that the Court may want to add in specific terms, but it's worth bearing in mind that there is a Code of Conduct that applies.

JUDGE BONOMY: An obvious example, Mr. Kay is a conflict of interest, I think, because plainly there could be a conflict of interest outlined by Mr. Nice, and you would have to somehow or other be protected from any complaint that might be made in view of the role you've been assigned rather than appointed by the client.

MR. KAY: Yes. The witnesses issue: A lot of Defence counsel have witnesses presented to them by clients that they wouldn't call or wouldn't choose to call. Part of the skill and the art is often making that fit into the case. This is a balance and exercise of judgement about which there has to be discretion.

[Trial Chamber confers]

MR. KAY: It's a matter of discretion and often judgement which has to be exercised.

In paragraph 2 -- ^{32383 BLANK PAGE 32384}

JUDGE BONOMY: Before you go on to that can I just ask one other question on the general position of counsel so assigned. Do you consider it's necessary to define the obligation any further than is actually set out already in the code which you've already drawn attention to and that is to act in the interests of the accused or the client? There was reference to the general interests of justice, but it might be thought that general interests of justice are in fact best served by acting in the best interests of the accused.

MR. KAY: Absolutely. That's why I've -- we've dug up the Code of Conduct. And when drafting this last night I wasn't thinking outside any other dimension than the Code of Conduct that we're all bound by. Indeed the associates of the accused are bound by the Code of Conduct. Anyone acting in one of the cases here is subject to the Code of Conduct, and we all very much bear that in mind, which is why in paragraph 2 I've just put: "The accused's nominated counsel to have the obligation and power to represent him as counsel in the proceedings." And as counsel that is predicated by the fact that you are bound by the Code of Conduct. In paragraph 3, because of the hybrid nature which the Trial Chamber obviously had very much in mind in considering this issue and the accused's right of self-representation, I suggest that the accused be permitted to continue to represent himself in the conduct of his trial by, inter alia, questioning witnesses, presenting evidence, and making submissions to the Trial Chamber in conjunction with his assigned counsel. And what I would have in mind there, and it may be that there could be improved upon, is that he would go first and, rather like the amici have ³²³⁸⁵ done so far, if they felt that there was a need to supplement submissions or draw further details to the attention of the Trial Chamber working on the arguments of the accused and making points on his behalf, to do so as a way of supplementing the litigant in person in his representations, which is why the word "conjunction" has been put in there. And it's not in any way intended to make the assigned counsel, so to speak, go first before the accused. That would be a matter of choice between him and whomsoever he nominated in the structuring of his defence. However, in 4 I have to deal with the further situation that in the event of the failure of the accused to nominate counsel on his own behalf, the Registrar of the Tribunal will assign counsel to represent the accused, who in circumstances and conditions in which the accused is unable or unwilling to take part in the proceedings, will conduct the case on his behalf. This is further elaborated upon. "In the event of the failure of the accused or any persons acting on his behalf," and by that I mean those working with him currently in his defence, "cooperating with assigned counsel in the production and calling of witnesses identified by the accused as potential witnesses in his case, assigned counsel may call those witnesses or any other witnesses deemed by him to be relevant in the case."

And the first working place here should be the accused's witness list, and that's what should be sought to be brought before this Court. I rather resile against some of the indications from the Prosecutor that counsel may call entirely his own witness list. That, in my submission, would not be in the interests of justice, and one must bear in mind whose ³²³⁸⁶ case this is. It is the defendant's case, and whatever beliefs or knowledges whoever is assigned counsel may have, it's not his case in terms of being the defendant, and that's what should be worked upon foremost, and I would see it very much in terms of trying to deal, whoever has this role, in a consensual way with the accused, on his list, which is why that paragraph is within.

Paragraph 6, in the event of witnesses identified by the accused to be called in his case not cooperating with assigned counsel, that counsel may seek orders from the Trial Chamber to compel their attendance and/or cooperation if deemed necessary. And there has to be an element of discretion within a list of 1.600-odd names.

7, assigned counsel has the duty to prepare for the calling of witnesses and the conduct of the Defence case in the event of the non-cooperation with him of the accused or persons acting on his behalf to enable the trial of the accused to continue. And that's been included very much as a result of the Trial Chamber's rulings that expedition is one of the reasons why they have taken the course they have today. And the Registry will provide appropriate funding for assigned counsel and supporting members of the team to enable them to carry out their duties. And that would also include, if it was wanted or needed, counsel chosen by the accused to help him in relation to resources. So this -- this model works very much on the basis for implementation that it is the accused who should have the first choice, counsel nominated by him would be bound by the Code of Conduct in any other way that counsel appears before the Trial Chamber, and the order ³²³⁸⁷ would enable him to function in conjunction with the accused. Assigned counsel that has not been nominated by the defendant to be very much a last resort and then attempting to work within parameters of cooperation. As to whoever takes up that function, the Prosecutor has suggested the amici, Madam Carla Del Ponte suggested yesterday that the associates would be his choice or there could be other counsel appointed. It very much depends on what arrangements the Registry would make, and this matter has to be considered very carefully.

On behalf of the amici, we have been in this case now for three years, and it depends very much on what could be arranged with the Registry if we were it take up that position. It's a change of role from the amici. It's a completely different appointment, and it shouldn't just be assumed by the Prosecution that that would be something that we should have to take up. That is not the case, and in fact at various stages throughout the trial the amici were having their role altered. They were being reduced in their attendance and need, at times increased, and we'd reached a stage at the Prosecution case where it was very much felt that we had given quite a bit of service to that extent. So it depends very much if we were the last resort option what was dealt with by the Registry.

In terms of how such counsel would operate, they would obviously need to provide a strategy document to the Registry and set out their terms as to how they would see dealing with witnesses and preparation of the case, but that is not really a need for the Trial Chamber at this stage to consider that kind of modality. We've considered it on the ³²³⁸⁸ general implementation and option so that each stage can be gone through in a way that adequately safeguards the interests of the accused as he sees it at the first stage.

[Trial Chamber confers]

JUDGE KWON: Mr. Kay, thank you very much for what you have said. Can I ask this, it's a general question: The Chamber decided, as was announced, to assign a counsel, but there may be some ways, various ways of assigning a counsel. There might be a way, rather than by assigning a counsel, by expanding the role of the amici curiae. It may not necessarily be you, Mr. Kay.

The amici has been -- the amici have been playing a role that is similar to that of a Defence counsel already, so it may be a matter of nomenclature, but if the -- if the Chamber redefined and expands the role of the amici curiae to include to represent actively for the defendant, what would you say to this?

MR. KAY: It -- I would, first of all, urge that we should go to stage one where the accused is able to appoint a representative first and foremost. If we have to go beyond that stage --

JUDGE KWON: That's the option which is open at any time to the accused.

MR. KAY: Yes. I think if it's formally done within this procedure now, it rather suits more the very careful consideration the Trial Chamber has been giving to this issue and the accused's rights and how we've been, so to speak, at the position we now find ourselves. If the option was that the amici's role was expanded into that ³²³⁸⁹ kind of function, it -- it would be a way of using the nomenclature of amici in a way that continues with assistance to the accused. So expansion of the role of the amici, whilst very different in terms as to that which we have been doing before, because it would be actively presenting his case if he was unable to attend court and those circumstances and conditions were then deemed appropriate by the Trial Chamber for the case to continue, it, however, requires a considerable re-think of the amici role in terms of resources, organisation, because if, so to speak, there was to be a parallel preparation to deal with all eventualities, the amici would have to be conducting that as a -- as a way of ensuring the proceedings continued. Part of the object of this at the moment, as I understand it, is in fact to help the accused and relieve the burden on him. As I said yesterday, in all big issues of litigation, the senior litigators delegate as we can see on the Prosecution benches and here. You simply can't interview every witness and deal with every document and call every witness and make every submission and research every point. You really do need assistance around you because the scale of -- it doesn't get any bigger than this. I think everyone will acknowledge that. It's really to help the accused to be able to continue his task of representation, and that's very much our feelings on the matter.

JUDGE BONOMY: In the situation you're in at the moment as amici, how do you read the code as applying to you? I mean, the code's very much tied up with having a client.

MR. KAY: Yes. As amici, it's the sentiment of the codes and ³²³⁹⁰ those parts that do apply to you. You've also got your own bar's code of conduct as well which -- and it's intended that the two codes really work side by side, and you're working under the terms of an order of the Court as well, which is the priority source of your function. We always look first to that, in fact, for whatever we do, which is why when we introduce our pleadings we say where we're coming from in terms of our order so that it's justifiable.

JUDGE KWON: Thank you.

MR. KAY: Thank you.

JUDGE ROBINSON: Mr. Milosevic, your submissions on this matter.

THE ACCUSED: [Interpretation] Mr. Robinson, a fundamental minimum of the rights that the accused has according to the Rome Statute and accord to your Statute is the right to defend himself. During these two full years, many manipulations and lies have been stated. Now when it is the turn of the truth to be told, you are denying me that right.

JUDGE ROBINSON: I've cut you off, Mr. Milosevic. I will not hear you at all on the question of assignment that has been discussed. You have indicated that you intend to take a particular -- a particular approach to it. That's entirely your right. We are now dealing with the modalities for assignment and that is what you should address. If you have no submissions on the issue, then so be it. Turn your mind to the question of modalities. That is what we will hear you on.

THE ACCUSED: [Interpretation] Then go ahead, deal with it.

JUDGE ROBINSON: I take it, then, that you have no submissions to make, Mr. Milosevic, on this issue. ³²³⁹¹

[Trial Chamber confers]

JUDGE ROBINSON: It's time for the adjournment, and we'll take a break of half an hour. We will return at 11.00.

--- Recess taken at 10.24 a.m.

--- On resuming at 11.35 a.m.

JUDGE ROBINSON: I will now set out the Chamber's decision on the first phase of the question of assignment of counsel. Pursuant to the Chamber's decision to assign counsel, the Registrar is instructed to appoint counsel for the accused. The Registrar should endeavour in the first instance to secure the appointment of Mr. Kay and Ms. Higgins, and the Registrar should make arrangements for appropriate funding for assigned and supporting members of the team to enable them to carry out their duties. Professor McCormack will remain as amicus for international law issues.

It follows that we have not accepted the submission that we should allow the accused seven days in which to nominate counsel to be assigned to him by the registry. We have taken that course because the accused made it plain yesterday, in spite of encouragement from Judge Kwon to appoint counsel such as his current associates, that he would not consider doing so.

It is, however, open to the accused to invite the Trial Chamber to consider at any later stage a reasonable request to be permitted to instruct his own counsel.

The Registrar is to report to the Trial Chamber by 1.00 p.m. tomorrow on the arrangements made for assigned counsel. ³²³⁹² Following receipt of that report, the Trial Chamber will set out in an order the modalities for the further conduct of the trial in anticipation that evidence will commence on Tuesday, 7th September.

[Trial Chamber confers]

JUDGE ROBINSON: The modalities that will be set out will follow broadly, generally the lines set out in Mr. Kay's draft. Mr. Nice.

MR. NICE: If the Court has finished with that issue, there's an entirely separate matter that I would wish to raise very briefly. It's the subject of a memorandum that's been distributed this morning to all parties and to the Court, and with your leave I'll recite its substance which won't take very long to recite publicly.

It relates, with the Court's leave, to a quotation said by the accused in his speech to have been an accurate quotation of former President Clinton. I observe that it might be thought appropriate for any newspaper that published this, particularly in the region, to publish the correction with equal prominence.

What was said by the accused to have been said by the former President Clinton on the night of the 24th of March of 1999 was that, and I quote: "The Serbs did not cause only World War I. Without them, there would have been no Holocaust."

As the proper record of the speech of former President Clinton reveals, and that record is attached to the memorandum, the relevant passage actually read as follows, and it's on the second page of the typed version of the speech: "Sarajevo, the capital of neighbouring Bosnia, is ^{32393 BLANK PAGE 32394} where World War I began. World War II and the Holocaust engulfed this region."

The Court will observe the degree to which the quotation asserted by the accused differs from what was actually said, and I'm grateful for the opportunity to be able to make that correction.

JUDGE ROBINSON: Mr. Milosevic, you accept the correction, I take it?

THE ACCUSED: [Interpretation] I will check the quotation. Perhaps there was a mistake while the documents were gathered in relation to the date, but I think that there is no mistake as far as the actual quotation itself. I will check, in any case. If something is correct, then I don't mind if it is corrected.

JUDGE ROBINSON: The transcript will have the record as put by the Prosecutor and we await your check, but in the meantime the transcript has the version put forward by the Prosecutor.

Any other submissions? We are adjourned.

--- Whereupon the hearing adjourned at 11.42 a.m, to be reconvened on Tuesday, the 7th day of

September, 2004, at 9.00 a.m.