³²⁸³¹

Wednesday, 15 September 2004

[Open session]

[The accused entered court]

--- Upon commencing at 9.04 a.m.

JUDGE ROBINSON: Mr. Kay, you had wanted to make some submissions.

MR. KAY: Yes. I'm grateful to Your Honour. Your Honour, the submissions this morning on behalf of the accused by the assigned counsel are based on the need for this to be a fair and expeditious trial and that his case is presented in the best interests of him, as the accused.

The issue that we're dealing with is surrounded by the subject of the right to represent himself, which we know the Trial Chamber has stated is not an unfettered right; it is a right with restriction, and they have decided that, on the basis of the medical condition, as revealed in reports of July and August of this year, means that the Trial Chamber shall curtail that right and assign counsel. Assigned counsel have been appointed by the order of 3rd of September, but a very important matter within the framework for which assigned counsel have to act is the order that was subsequently issued by the Trial Chamber after the appointment of assigned counsel on the same day, the 3rd of September, which contains the modalities to be followed by court-assigned counsel. Those modalities were not formulated as a result of representations by assigned counsel, and it is at this moment that assigned counsel will make representations about those modalities, now being familiar with the background to the issues of the defence, having ³²⁸³² had the experience of calling three witnesses over the last two weeks and having had the experience of attempting to put into operation preparations for the presentation of the defence case in the best interests of the accused.

What has happened so far is that from an initial list of 48 witnesses, or lists, shall I say, derived from five witness schedules, submitted on behalf of the accused by his associates, those schedules have been considered, witnesses contacted, and some witnesses called, three to date. Of the witnesses that we have been able to contact of those 48, 23 others have been contacted. Twenty of those witnesses have refused to testify. Only two have stated they are prepared to testify, and we are waiting a response from one other.

We can get no further down the road of that task in relation to the other remaining witnesses whose contact details we have, despite very intensive work done on this matter by someone assigned with the task. We know, from many communications that have been made to us, by e-mail contact and also statements in the media, that groups of witnesses have banded together and have stated that they are not prepared, under the conditions of the assignment of counsel, to come to the Tribunal and testify as part of the defence case of the accused.

JUDGE ROBINSON: Have they given a reason?

MR. KAY: Their disagreement with the assignment of counsel. And I think by that, one could read in the presentation of their testimony, and that's really what the issue is able to come down to, in our submission, as a solution to what is, we consider, to be a significant ³²⁸³³ problem in the expeditious and fair running of this trial. It is quite clear that the witnesses would prefer the accused to be presenting their testimony. He has stated many times that that is what he considers is the means of the best presentation of his defence. And in the submission of assigned counsel, that is something with which we concur.

The modalities order specifically takes away, under paragraph 2, the right of the accused to present witnesses first and then be followed by assigned counsel. And in the words of the accused on the first day that evidence was called in the defence case, on the 7th of September, when I raised this matter, with the foresight of the particular trouble that could be caused in the expeditious and fair running of this trial, he stated he had no wish to be Mr. Kay's assistant. And as the Court knows, has objected to the manner of presentation of evidence, although he has not availed himself of the right to perform his own questioning.

JUDGE ROBINSON: Nor to instruct you.

MR. KAY: Nor to instruct me. And that will not change. If anyone is of the view that it might change, from my experience within this case and from my knowledge of the way things are going, that will not happen. And if it doesn't happen, our submission is that the Trial Chamber must still consider the fair and expeditious running of this case to enable the defence of the accused to be properly put.

JUDGE BONOMY: Mr. Kay, can I try to begin to understand the attitude of witnesses here?

MR. KAY: Yes. ³²⁸³⁴

JUDGE BONOMY: The order which was made not only allows for the possibility that Mr. Milosevic himself will ask questions; at more than one stage in the examination of any witness, but also allows him to make a reasonable request to the Trial Chamber to consider allowing him to appoint his own counsel. This is a complex and extremely lengthy case. Are you in a position to make any submission which could possibly explain how any rational person could come to the view that his evidence might not be adequately presented by counsel with the reasonable cooperation of the accused?

MR. KAY: Any rational person committing themself on the side of a particular party in litigation and in a criminal trial such as this will see the matter from their perspective, and from their perspective, they will see the matter because they are prepared to commit themselves on behalf of a particular individual and human being who is known to have presented his case thus far to date, and in many respects, they will have a convergence of issues or sympathies with, would prefer that in those circumstances, this accused presented their testimony. And in many respects, the test should not be of any sane, rational person, because we're not taking here members from the public. We're actually taking here members of the public who have identified themselves as willing to give evidence on behalf of this defendant.

JUDGE BONOMY: But are these largely people from countries where traditionally the case, the presentation of the defence case, will essentially involve counsel or legal representation?

MR. KAY: They are from countries throughout the world, of ³²⁸³⁵ different legal systems, from America, France, Yugoslavia. That is simply where we have received information so far. There are probably others. I'm unable -- it is so vast, the witness scope here, that we are unable to in fact track it and have no time to read everything that's sent.

JUDGE BONOMY: But would it be an exaggeration to say that in 99 cases out of 100 they are from jurisdictions in which it's commonplace, in fact, in some cases obligatory, but in others commonplace, for cases of any complexity at all to present -- to be presented with legal assistance?

MR. KAY: It may well be. We are dealing here with a very unique case. There is not a case, a criminal trial of the scale, size, and scope of this that has ever been heard. We are dealing with the first president of a substantial and influential country who is on trial. The issues here are outside the normal experience of our domestic practice. And within the trials of this Tribunal, of which I have done one, the first trial here, when you move from the camp guard strata up the chain to this particular trial, they are very, very different in how they are to be managed and of the attitude of the defendants.

JUDGE ROBINSON: Mr. Kay, can I take you back to the part of your submission where you say that it is clear that the witnesses would prefer the accused to be presenting their testimony, and that is something with which you concur. Now, this Trial Chamber proceeded on the basis that the accused has a right to represent himself, and that was reflected in our decision which was set out in 2003. At that stage of the proceedings, that was the view of the Trial Chamber. At the present stage, on the basis of a medical report, the Trial Chamber has come to the conclusion ^{32836 BLANK PAGE 32837} that the accused is not fit to represent himself. The medical report is that if he continues to undertake the burden of representing himself, there will be a recurrence of his illness. So the likelihood is that we will be repeating the same set of circumstances that we had in the Prosecution's case when we had about 12 interruptions. What I don't understand is how you could say that that is something with which you concur. I'm at a loss to understand why you would concur with that, in light of that background.

MR. KAY: The issue of assigned counsel is subject to appeal. We are here dealing with the modalities of the assigned counsel. The order was made on the basis of his health. He wishes to continue despite his health, and that is his free choice. What is happening at the moment is that there is an obstruction of the exercise of that choice, if you like, and I'm putting it this way - it's the only word that comes to mind - as a paternalistic order, that we are protecting you from yourself. The modalities of this order don't have to be subject to a failure of the trial if his health fails. The order could still be structured that if he was ill and the Trial Chamber deemed it appropriate, witnesses could be called by assigned counsel until he was better. At the moment, the Trial Chamber has permitted him to open his case for two days, then deal with the issue of the representation, then make the modalities, and the evidence we have seen from the restart of the case is that he has been in good health, he has continued to see witnesses, he has been able to express himself vocally in the proceedings, he opened his case for two days in an intensive, strong and robust performance -- ³²⁸³⁸

JUDGE ROBINSON: But, Mr. Kay, we know from experience that in another two months, he will break down. It is only an idiot who does not benefit from his experience. The Trial Chamber is not in that situation. We have had the experience where Mr. Milosevic has broken down, has become ill, about 12 times, and interrupted the trial. We protected and supported his right to defend himself, but at this stage, I am not in a position any longer to do that. One basis for the order is the health of the accused. The other basis, and this is supported by jurisprudence, is the prestige, the reputation, and the integrity of the Chamber to continue the trial, well knowing that if the trial lasts another two years, the same time as the Prosecution's case did, it will be interrupted 12 times. It would be irresponsible, in my view, quite irresponsible, and would bring the Tribunal into disrepute. I'm not prepared to support that kind of approach at this stage. We're dealing with different stages. In the first stage, we supported his right, the self-representation, and that's the jurisprudence, as I understand it. It's a basic, fundamental right. But we said it is not absolute. There are some things which interfere with the achievement of a fair and expeditious trial. In some cases it might be boisterous behaviour. That has not been the case with Mr. Milosevic. I make that clear. In his case, it is his health. His ill health is an obstruction to the achievement of a fair and expeditious trial, and that is why we have had to take the measures that we have done.

JUDGE KWON: Can I make --

MR. KAY: Of course.

JUDGE KWON: The Chamber is not only concerned about the ³²⁸³⁹ interruption of the trial, but also, more mainly, about the accused's health. Is it not plain from the medical report, doctor's report, that allowing him to continue representing himself is allowing to kill himself? We should not allow that can happen. So that's the main reason of the Chamber's decision.

MR. KAY: What I'd like to do, to deal with the observations by the Bench, is just turn to the health issue and how it came about in those reports. But then I'd like to put forward, in really response to Your Honour Judge Robinson's observations, what the other side of the case is in relation to the dignity and integrity of the Tribunal, which is the quality of the defence. And in our submission, that is the most fundamental point of this trial, is the quality and importance of the accused's own case and defence. And that's, we say, in fact overrides this issue and in many respects overrides -- there is a free choice here in relation to the matter for the accused that he plainly wishes to exercise and wishes to take control over his own health. But if I can just deal with the medical matters.

We've just taken out of those reports as an aide-memoire the conclusions in the reports from the 24th of July, 2004, and I'd like those to be handed round, as they're in schedule form. Right. The report that we are largely basing this issue upon is that that was dated the 24th of July by Dr. Tavernier, the cardiologist from Belgium. I can inform the Court that the date of the examination has now been provided to me from other sources as being the 21st of July and the 22nd of July, 2004, 51 days ago. And that report said: "Based upon ³²⁸⁴⁰ his present clinical condition, his present lifestyle, and his poor adherence to the proposed therapeutic plan, at this moment, and we stress that, Mr. Milosevic is, in my opinion, not fit to represent himself." That is the last date of the examination of the accused for the purposes of the report.

On the 18th of August, Dr. Dijkman examined -- filed a report on the basis of his examination on the 26th of July, which is the date of his last examination for the basis of a report: "In my opinion, the patient is not fit enough to defend himself. I remain of the opinion that Mr. Milosevic should adhere to his regime of medication in order to obtain acceptable blood pressure values. It has been shown in the past that this is indeed possible."

And on the 26th of August, Dr. Dijkman, whose last visit was on the 26th of July, filed a concurring report to Professor Tavernier, whose examination had been on the 21st and 22nd of July, and stated: "Having read through Professor Tavernier's report, I conclude that we both agree on the current medical condition of Mr. Milosevic." 27th of August, Dr. Tavernier, whose previous examination had been on the 21st and 22nd of July, so five weeks earlier, says: "If Mr. Milosevic would strictly adhere to the whole therapeutic plan, a better control of the blood pressure could be obtained. In the present situation" - that's based on the examination in July - "Mr. Milosevic is not fit enough to defend himself. Mr. Milosevic would continue to represent himself, this will delay the progress of the trial significantly." ³²⁸⁴¹ But that was based upon the earlier situation. And as I say, those visits, last by Dr. Dijkman, 26th of July, last by Dr. Tavernier, 21st of July, last visit 51 days ago, seven weeks, two days. And they are all predicated on the basis of that being the current situation at that time and of the adherence to a therapeutic plan. Counsel has been assigned by the Trial Chamber, which, in our submission, should be the opportunity, if there are failings in the case that require assigned counsel to deal more proactively with evidence on behalf of Mr. Milosevic, that should be something that occurs when the situation requires it. At the moment, the order of the Court, even if he abides by his therapeutic plan, is able and fit enough to represent himself, actually obstructs that which the Court wanted to give him anyway, because the basis of the ruling has been solely on the medical and health grounds. The Court has said repeatedly: We are not in the business, we are not interested in taking away fundamental rights, as His Honour Judge Robinson made clear this morning. This is as a result of conditions that the accused was subject to that prevented his effective continuation in the trial.

JUDGE ROBINSON: Mr. Kay, just to be completely accurate. The medical reports which were given, you said, the last one, some 51 days ago --

MR. KAY: Yes.

JUDGE ROBINSON: Were not based solely on a single examination; they were based on a review of Mr. Milosevic's health over a period of time, I think over the entire period of time that this trial has lasted. ^{32842 BLANK PAGE 32843} And I think you need to take that into account.

MR. KAY: I don't dispute that, Your Honour, and we are very well aware, and in making this submission, we have considered the importance of that previous medical history. But it is clear from what the doctors said that it was at that current time that they were taking into account his fitness or not, and it is clear that it was the present clinical condition, the non-adherence to the therapeutic plan, that they attributed as being significant reasons for his medical condition --

JUDGE ROBINSON: If there was a non-adherence? It wasn't on a single occasion. It would have been an assessment that they made based on their examination, particularly the examination of Dr. Dijkman, over the entire period of time that Dr. Dijkman had been seeing Mr. Milosevic.

JUDGE BONOMY: If you're to rely on that as a change in circumstances that might justify a different approach, then you would first of all have to have an indication from the accused that he accepts that he wasn't following the therapeutic plan and then an indication from him that in the future he would. And that's plainly missing from the submissions so far.

MR. KAY: And again, I can't give it, as I have no lines of communication with him, which is the problem that I face in the presentation of this, and not being able to advise him directly myself. But in the previous history, the Court really had no strategy because we had the amicus and the accused by which to deal with the failures, and it may well be right that the finding of the assignment of counsel, in the circumstances, has a reasonable justification. If you just take that as a ³²⁸⁴⁴ basis of an argument. But it's the modalities of the running of the trial that is causing the greatest problem in the fair presentation of his defence and, as I hope to demonstrate to the Court, what could well be the expeditious running of this trial. And I come here now based upon experience of the last two weeks and being able to consider those issues and attempt to provide solutions. Because going back to the main issue, what is more fundamental, his health here, which is a matter over which he can govern himself, and he has made very clear and obvious statements as to how he views that, that he considers the presentation of his defence to be far more important to him. For the Trial Chamber to undertake a defence case lasting a considerable period of time, in which there have been no instructions from the accused, assigned counsel cannot say that he is working in the best interests of the accused, because he doesn't know what those best interests are in the accused's defence, because it's not my defence; it's his defence.

His Honour Judge Bonomy was very aware of this, if I may respectfully say so, when we were dealing with legal argument three weeks ago, on the 2nd of September, two weeks ago. I'm looking at the transcript at page 32372 of the 2nd of September: "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?" And the cooperation is instructions, it's access to witnesses, it's cooperation of witnesses, as in any case, where they have a connection or a sympathy with the accused rather than the lawyer. They're not becoming witnesses necessarily because a lawyer asked them to become ³²⁸⁴⁵ witnesses; they're becoming witnesses because they wish to avail themselves of an accused in his trial. And if it's to be thought that we can collect witnesses and produce them, exercising our judgement on the matter, it is easily open to any observer to say, any reasonable observer: Well, we don't know if that was Mr. Milosevic's defence or not. He said he didn't agree with it. And the lawyer hadn't talked to him. The lawyer couldn't get all his witnesses.

And the problem is that the only party that benefits in this adversarial context and contest from that is the Prosecution. And in our submission, any reasonable observer would not say that that is a fair trial in that context.

Aside of this, because we must deal with --

JUDGE BONOMY: I have to say, I can't accept that submission at all, that when a person is given every reasonable opportunity to present his defence, that it could ever be said that when he decided not to exercise it, that the trial was not fair. So I cannot accept that submission.

MR. KAY: I hope to change Your Honour's mind on that, because there are distinct problems here in assuming that we can know and second-guess what are his best interests and what his defence is. And it is quite clear, from having looked at the witnesses, looked at the information we have, and the Court has seen the Rule 65 ter document submitted on his behalf, that the presentation of the evidence of those witnesses requires the sympathy between the witness who's giving the testimony and the person asking the questions. Otherwise, the issue for ³²⁸⁴⁶ which they're giving evidence is not made clear. And it may be said, well, he's got every opportunity under the present system to take part, but the problem is, he's not, and will not --

JUDGE ROBINSON: In that case, none can say there was unfairness. The duty of the Trial Chamber is to ensure that it sets up a system which enables the accused to participate in the trial, and we have done that. If he refuses to participate, if he refuses to grasp the opportunities presented to him, then, in my own view, none can say there was unfairness.

JUDGE BONOMY: What I do accept, Mr. Kay, to be absolutely clear, is that all you can do is your best.

MR. KAY: And this concerns us greatly, because we have to work in his best interests. Your Honour Judge Robinson said, well, none can say that there wasn't fairness. What we're talking about here is a slight reversal that we think could aid the functioning of this trial, and it would be worth attempting --

JUDGE ROBINSON: Let us hear it again. Bear in mind that there is an appeal, and we shouldn't do anything here that would interfere with the appeal. Let me just have a consultation.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Kay, what we were considering was whether the modalities order is not part and parcel of the decision to assign, and therefore, is a matter that is now being considered by the Appeals Chamber and whether it is proper to discuss it. But we have concluded that you may go ahead with your submissions.

MR. KAY: I'm grateful to Your Honour. We've taken the view that ³²⁸⁴⁷ principle of the assignment was a separate issue which has gone up to the Appeals Chamber. The modalities of the operations and under 1(C), seek from the Trial Chamber such orders as they consider necessary to enable them to present the accused's case properly, including the issuance of subpoenas.

JUDGE BONOMY: Paragraph 4, Mr. Kay, 14, that really may open the door?

THE INTERPRETER: Microphone, Your Honour.

MR. KAY: Well, I've got all these paragraphs highlighted and scribbled over, but it was that one that came to me first of all. But we took the view it was within our mandate, and in many respects, we've come here with the experience of operating it, and we're not dealing just in the abstract now. We have moved from the stage of being amicus previously, of now looking at the set-up that we previously didn't have access to, which included the witness details, the exhibits that have come to the Court, and looking at the trial management side of the issue. And this is really why I have been stressing the expeditious conduct of the case.

If the questioning was reversed under 2 and then the Appeals Chamber were able to deal with the matter in any way they felt right, it may well be, from what Mr. Milosevic had said on the 3rd of September, he didn't want to be Mr. Kay's assistant and that he wanted to question first, that we might well find that the flow of evidence and witnesses is not obstructed, as it has been, by the non-participation of those who were on the witness list. ^{32848 BLANK PAGE 32849} If the determination of the Trial Chamber is such - and I'm taking on board the observations by Your Honours that none can say that it hasn't been a fair trial, you can only do your best, Mr. Kay - and it's accepted that this trial will continue in a way where the accused has not been engaged in his defence case and has not chosen to take up those offers that have been put into the order, the presentation of that defence case by people without instructions becomes an enormous technical task. At the moment, because Mr. Milosevic is using his own resources and advisors of those cooperating with him, they have their channels, they have their witness contacts, they have been able to supply the witnesses to date to the Court, they are able to supply the witness details. We only have the details of 48. The other 1.600, we do not have the addresses or other means of identifying. We have two trolleys of exhibits that are not translated, largely, into B/C/S.

[Trial Chamber confers]

JUDGE BONOMY: Two questions may arise there, Mr. Kay. First of all, are you saying that there's a determined effort being made by those assisting Mr. Milosevic not to give you information, or a refusal to give information?

MR. KAY: I don't know. All the information that we have was given to the Court, to the Registry, for the first batch of 50 witnesses.

JUDGE BONOMY: But I take it you've asked for the details of other witnesses and these have been refused.

MR. KAY: Yes. There's no cooperation here. I am not his lawyer, as they see it, as he sees it. I'm not instructed by him. So this ³²⁸⁵⁰ information is their information.

JUDGE BONOMY: But to a person who takes the view that you are his lawyer, then what's happening is that you are being obstructed, and that means that you would have the right to apply to the Court for orders to obtain that information.

MR. KAY: Let's move -- we know that, and that's a fairly -- that's a routine administrative task. It then comes about that we have to get witnesses to cooperate with us and give a statement. Prosecution have an enormous investigative machinery. The scale of this for a defence team on a trial like this, without the cooperation of the accused, is a task so resource intensive for appropriate investigators that the economics of it, for what we are trying to achieve, in our submission, have to be seriously considered. Prosecution have access to retired police inspectors from the UK, elsewhere, experienced men with a career behind them, at a level of remuneration and comfort, if you like, that enable them to carry out their job. We would in many respects be no different to their embarking on an investigation in attempting to locate, obtain the assistance of, and consent to testimony, getting a statement, if we don't get it, coming back here, going back again, attempting to achieve that here.

JUDGE ROBINSON: Even with less resources than the Prosecution has at its disposal, if you had the cooperation of the accused and his associates, you would be in a much better position, because Mr. Milosevic's intention was to present his case by himself. And I'm fairly certain that he would have been successful in getting the witnesses here. So what is standing between you and the witnesses is not so much ³²⁸⁵¹ the difference in resources between yourself and the Prosecution, but the lack of cooperation from the accused and his associates.

MR. KAY: It's a great difference in having compliant witnesses who want to speak to you than people who don't. And to take a quality of statement appropriate for this trial, and on issues that are appropriate to the indictment, getting people of that experience is not -- it is a resource. It's a resource matter. If this trial was fuelled, in the way that Mr. Milosevic was presenting his witnesses first, so that his associates and those supporting him were supplying the fuel, there wouldn't be a problem here. And vast amounts of resources would be saved. And we can see how it has happened over the first three days, because those were witnesses set up before the assignment of counsel, how it's possible under that chain to get the case moving. Once we move out of that -- and I'm relying on people who don't want to cooperate with me, and I don't have, or we have to somehow get experienced people aware of the issues, his team are all aware of the issues. They've lived, slept, drunk this case, probably since the date of his arrest. They have a machinery in place. There are people willing to lend assistance who are aware of the issues that he's aware of.

When you're coming from the outside, attempting to put that together as a defence team, the scale of the task, I cannot underestimate to this Court, and the resources that would be needed to have competent people undertaking that task of an experienced nature. We can't send out interns and young lawyers who don't know about the issues in this case. I've had experience of that before, coming into a case where investigators ³²⁸⁵² just give you completely meaningless exculpatory statements, thinking that's enough. And it's not. And to be meaningful in the presentation of a defence case, requiring those sorts of resources, I'm not sure this Tribunal would welcome that. It's all very well saying: You can have so much. But I don't think anyone's considered the scale of it when you are not walking on receptive turf. It's hard enough, often, when you have a client who is happy with you and you're going out and trying to get this kind of evidence, it's a great task, and I've experience of that, and it's intensive, and I've had to do it myself, and Ms. Higgins has done much of it as well.

JUDGE KWON: I think, Mr. Kay, it all goes back to the issue of his medical condition. Letting him go first in examination of witnesses will necessarily mean that he has to prepare his defence case by himself, he has to meet the witnesses and proof them, and everything. That will not -- will that not inevitably make him collapse again?

MR. KAY: Well, he's done it so far, and it hasn't, actually, since he's seen the witnesses that I've seen before me.

JUDGE KWON: But it's different. The doctors are saying that he's in a life-threatening stage.

MR. KAY: That was at that time, and under that therapy. It may well be that we've gone so far now and we're on the precipice, if you like, that if ever he was minded not to follow medical advice, that that will be the furthest thing from his mind. Because there's no doubting his -- the intensity and the strength of his desire, which he puts above his health, in the presentation of his case. For him proofing those ³²⁸⁵³ witnesses. They've been seen by other people, which get them down the chain to him, and he speaks to them. We're not talking about, I don't think here, excessively detailed proofing sessions. Some of the witnesses are known to him. They're people he's had conversations with. They're people who have worked with him or he has met or who were part of events with which he was involved. So how they come and meet is very different than when the outsider comes in to take the proof.

JUDGE ROBINSON: You're really, in effect, then asking us to ignore the medical reports and to allow Mr. Milosevic to continue in the same vein as before, preparing witnesses, examining witnesses. And don't assume that examining witnesses is necessarily easier than cross-examining. I think you will know that. What would happen then is that there would be no change in the regime, despite the clear medical findings, and if I understand your submission correctly, he would prepare his witnesses, he would do the examination first, and when he breaks down, as, from all indications, is inevitable, then you would be able to take over; you would step in. Where would he be at that time?

MR. KAY: The way I envisage a means of it operating is that the witnesses who come in for proofing can be proofed by him, or he can allow one of his associates to do it. It's a matter of free choice. I would see the witnesses as well. Witness comes in on a Saturday, he sees him on the Sunday, I see on the Monday. As we've in fact been operating the last few days.

Then he presents the witness testimony in court. I follow, dealing with those matters that I consider relevant to the proceedings and ^{32854 BLANK PAGE 32855} the indictment. And if there has been a presentation of testimony that fits that, then I leave it. If there are issues that he may have forgotten, being a litigant in person or not shaped, I can deal with that, we deal with matters of law. But we reverse the roles and permit him the option to delegate, the exercise of his free will, and in our submission, the criticisms that his defence is not being put are met.

JUDGE ROBINSON: What would happen when he breaks down?

MR. KAY: In those circumstances, knowing where we are in the expeditious -- duty to expeditely run this trial, the Trial Chamber can make a decision on that issue, whether assigned counsel takes over for that period or not. Let's not prejudge anything. Let's look at it in the context. But he --

JUDGE ROBINSON: Can you stop a minute there? Because that would then raise another fundamental issue. If we are to continue the trial in his absence. The trial in absentia.

MR. KAY: If he is exercising his free will, the Court will have to consider the ramifications of that. But the importance of him exercising his will and what he has taken on -- at the moment, he's not cooperating anyway or availing himself of the opportunity to question. So at the moment, we've got the worst possible of all worlds. And his case, it could be said, it is said, is not being put.

If I stress, if there is no further cooperation, what it would take for a counsel without cooperation to put on a defence in a trial of this scale and the impact on the proceedings that that would have, the delay, our submission is that this opportunity or position that we are ³²⁸⁵⁶ expressing which should be followed would be a far more preferable course. I foresee great difficulty in attempting to go in cold and deal with uncooperative witnesses, attempting to find exhibits and deal with issues without support and backup from those representing his interests. And I am concerned that I could be forced, if we are to look into the future, as Your Honours have done, what if, what if I come back and say: This is the best I can do, but -- and that's as far as I can get. And I am concerned about that, for international justice. The last few days, 11 days, where we've had to deal with these issues has made us consider very carefully the responsibilities, as we have attempted to put this case on the tracks and get going. But our limitations are such that we are concerned that that which it is thought we might be able to achieve might not be achieved when you are not dealing with sympathetic witnesses or in a scenario that is hostile and unsympathetic. And we have had to make the phone calls to some of these people, and we've been very concerned. In fact, we've stopped making them ourselves, and that is a delegated task, because you get drawn in various ways, you don't know what's going to be, how things are going to be framed or put, and there are such dangers of compromise which can cause difficulties to this trial that we say that it's worth at least a try, which was our first -- one of our submissions as an alternative course as the amici curiae, and it may well be that the 51 days require now a further medical report to see how he is, this issue having been raised. And the assurances of cooperation, medical cooperation, and adherence to the therapy can be considered, that having been obtained. ³²⁸⁵⁷ In our submission, the Prosecution have driven this issue of assignment of counsel for a long period, and having got there now, we are in the position of trying to make it work and we are very concerned about the presentation of his defence without cooperation, and in fact, in circumstances of hostility. And I have no need to go into that. But the Court may even be aware of it in the press.

JUDGE BONOMY: Can it be said, Mr. Kay, that this was not foreseen and there was provision made for it and it may just be the case that you have to make application for the necessary orders and to carry out the necessary investigation. I think it was made clear at the time the debate took place that the Chamber would be sympathetic to allowing time for that, no matter who was appointed to the role of assigned counsel.

MR. KAY: I'm sure that is so. But as I've said here, we've moved from abstract and foreseeing to us having hands-on, and I believe it's my duty, because Your Honours must preside, and want to preside over a fair trial, I am sure, that you have a transparent position from us. If we did anything less than that, I'm sure you would feel that we had not properly informed you of the circumstances that we face. You're used to doing a trial where you might issue one or two subpoenas for the bank manager or the doctor or a reluctant witness or whatever. But we could be talking about hundreds here, a logistical task. I think the intensity of resources from the Tribunal that are going to be required for a task of this magnitude have to be considered. The other option, which is permitting the freedom and the exercise of his free will, actually prevent, actually save those resources, in many respects. ³²⁸⁵⁸

JUDGE ROBINSON: Mr. Kay, may I take you back to a statement you made earlier, that groups of witnesses have banded together and said they are not prepared to testify. Would you enlarge on that by way of letting the Trial Chamber know what is the -- what are the indications that you have of that, the evidence.

MR. KAY: There are petitions brought to my attention by the Registry, who have been advising me of the circumstances. There has been a petition. I believe there's an American petition; there is a petition from another country. We were told by one witness he signed the petition, another signed the petition.

JUDGE ROBINSON: Any from the witnesses in the three jurisdictions that we are considering?

MR. KAY: Yes. Most of them from there. These are witnesses who I would need cooperation with on the issues of the language, the basis of their testimony. Once you get that position -- you may get subpoena and you may have witnesses come here, but it's blind justice. It's not actually getting into the case and what the case is about. It is not the best way in proceeding.

JUDGE BONOMY: Petitions, Mr. Kay, suggest orchestration.

MR. KAY: It may be spontaneous. I'm simply unable to say about that. What I can say is Mr. Milosevic has not stopped those three witnesses from seeing me, and I know that because I asked them. And he was very happy for me to see them. And so I can't say at all what this is about. But the Court must understand that this is not a -- this is a partisan case. We know that. There are sides here, and sides group ³²⁸⁵⁹ together, and sides and sympathies merge and come together. This case is watched by those with an interest in this matter avidly and they follow developments. And what is important, though, is that his witnesses get called and they're heard by you, for his defence and his case. Because his witnesses will form the fundamental bedrock of your decision-making process when you weigh up the evidence. And we are anxious you are not disadvantaged in this.

JUDGE BONOMY: Do you think it would greatly assist the prospects of you having these witnesses attend if Mr. Milosevic simply indicated that he was anxious that they should?

MR. KAY: I don't know. I think lines have been drawn now, Your Honour. The note here from those who have had to be dealing with this, a chain of people, they're from all levels of society. They're professors, they are people, politicians. I know from here as well people perhaps connected with other governments. We've got senior people from foreign governments refusing to cooperate. Ambassadors. So it's not just -- it shouldn't just be seen as an isolated corpus. This goes far wider, to ambassadors. And we are concerned about that because these are people with whom the accused had direct contact.

JUDGE BONOMY: That's a very serious state of affairs that formal representatives of governments should refuse to attend, if invited, but have they been invited?

MR. KAY: Yes. They know exactly what's going on.

JUDGE BONOMY: Have they been specifically invited to attend, given a date when they should be here? ^{32860 BLANK PAGE 32861}

MR. KAY: Well, yes, actually. I think that's right. But they have made statements of non-cooperation. They're reported in the press. We pick them up or people tell us about them. And we are left with that kind of fall out.

Now, I don't want to be selecting from a list of 1.631. Let's just take the framework of 150 days. What turns out to be witnesses that could have been discarded, but I've just called them because they're there, free and available. I don't think that that assists the Tribunal. The important witnesses, crucial to the defence issues, are the ones that need to be called. Identifying them by us is very difficult, because we simply don't know, in the absence of instructions, what lies out there.

JUDGE ROBINSON: Going back to what Judge Bonomy asked, I think what he had in mind was whether, let us say, an ambassador has been specifically requested to attend the Court to give evidence on a specific day and has in fact refused.

MR. KAY: He's a former ambassador, ambassador at the time, and the witness schedule number five is the summary.

JUDGE ROBINSON: I have the witness list here.

MR. KAY: Yes. Number 1109. Yes. Scheduled to testify within a period. Number 670, premier, scheduled to be the fourth witness, obviously very important and with whom Mr. Milosevic had dealings on a personal level.

JUDGE BONOMY: Is it not obvious that an application should be made for a subpoena for each of these two witnesses to allow progress to be made? ³²⁸⁶²

MR. KAY: That can be done. Whether they cooperate or not, in the context of trying to deal with this case and dealing with those issues on top, it is a considerable task. If it can be done without. We don't want to come in here day after day, saying, well, we haven't been able to achieve this, we're still trying to locate this witness. A defence -- the smooth-running nature of defence witnesses is sometimes a miracle how it ever happens because of the -- resource channels are not as intensive, but for us to --

JUDGE ROBINSON: We have to operate on an empirical basis, on the basis of experience, and that is why I think at this stage, at any rate, it will have to be demonstrated to us that the witnesses are not willing to attend.

MR. KAY: Well, we've had the refusals that I've told the Court about, 20 -- 23 witnesses heard, 23 contacted, two of that 23 prepared to testify, one we haven't had a response. 20 refusals.

JUDGE ROBINSON: I mean taking it further on the basis of the issuance of subpoenas.

MR. KAY: With the numbers we're dealing with.

JUDGE ROBINSON: I'm not saying that the Trial Chamber will issue 300 subpoenas.

MR. KAY: Yes.

JUDGE ROBINSON: I don't myself think that that would make much sense. But I think some -- I think some will have to be issued, because it will have to be demonstrated to us that it is not possible to get the evidence. And that is part of the procedural system that we have, the ³²⁸⁶³ issuance of subpoenas.

MR. KAY: I understand that.

JUDGE ROBINSON: With a representative set of witnesses.

MR. KAY: We understand that, and we're aware of it. We're trying to get people here voluntarily at the moment, because compelled witnesses are never the best. It's often never a satisfactory way of obtaining cooperation. But we're saying that there's a much easier way of dealing with all this, without that kind of background for conflict. And allowing the accused to express his free will on the issue and those who are able to act on his behalf to provide the machinery for witnesses to voluntarily come here. And also, it is a selection. I can tell the Court this, that although the 65 ter document reduced from 5.600 witnesses to 1.631, it is a very difficult issue to work out which of those 1.631 should be the priority witnesses.

JUDGE ROBINSON: That's a different issue.

MR. KAY: We have no access -- we have no statements or proofs by them. So using -- it's been mentioned about using procedures as well, of 89(F), in relation to evidence-gathering. It's simply -- it's more of a Prosecution evidential tool than a Defence evidential tool. It's not one that Defence would willingly use. It's never the point, really, for the Defence, which is to deal with issues in a slightly different way.

JUDGE ROBINSON: Yes. Speaking for myself, I understand that.

MR. KAY: Yes. 92 bis (D) is possible, and we've embarked on an exercise looking at the previous trials relevant to this indictment, all the previous trials on Croatia and Bosnia at 92 bis (D) experts, and to ³²⁸⁶⁴ select that and put that in as a package. That's quite -- it's time-consuming. We can achieve that. These witnesses will be wanted to be live.

[Trial Chamber confers]

JUDGE BONOMY: Mr. Kay, could I be clear about one particular matter? The associates who work in conjunction with Mr. Milosevic were at different stages approved by the Court as having a relationship with him. They didn't just appear, but the Court recognised their involvement. Have I understood the position correctly?

MR. KAY: Yes. They are advisors. They do not represent him, as they stressed to me. They are advisors, and they were facilitators to enable documents and the preparation of his defence by him to take place. Originally, they were not part of the machinery, although they were at Court, they were just members of the public. And it was as a result of requests by the accused that they were more formally introduced into the system and have been aiding him.

JUDGE BONOMY: Where does the Court come into that relationship? Can you help me with that? Because there has been a formal recognition of their involvement. Now, what status does that give them?

MR. KAY: They are not appointed by the Court as his advisors or consultants. They are given access to him, and they are subject to the code of conduct that would apply to counsel, and they are subject to court orders related to evidence and matters of procedure. But they are not funded, provided by the Registry. They are outside the system.

JUDGE BONOMY: Now, you've made one or two references to them, and ³²⁸⁶⁵ indeed one of the references was that the list of witnesses which you were referring to was provided by them. Are they a suitable source from which you might obtain the details of the other witnesses, or might expect to obtain the details of the other witnesses, which would enable you to get these witnesses here? Because one would assume that responsible lawyers acting in a situation like this to assist Mr. Milosevic would realise the importance of ensuring that the witnesses do come to Court.

MR. KAY: They filed, on Mr. Milosevic's behalf, the list of witnesses. They work with others and they've had an assistant here at the Tribunal, and there are other people outside, in the preparation of the materials that we've had to date, such as the 65 ter. I cannot say what exactly they do or who does what, because we are not part of that, and we receive their materials in the same way that the Registry did. And we were working as amici curiae to make the issues that were coming up in relation to the presentation of the defence case easier. So we were doing the drafting and seeking to formalise, not on the instructions of the accused, but really as an effort of putting material in a suitable way before the Court.

JUDGE BONOMY: This is a rather long answer to a fairly simple question, Mr. Kay.

MR. KAY: I actually don't know whether they --

JUDGE BONOMY: Does that mean you haven't asked them?

MR. KAY: Yes. I don't know. It's very difficult because they accept their client's instructions and we are faced -- we are not at the moment -- ^{32866 BLANK PAGE 32867}

JUDGE BONOMY: You say not their client, is what you've already told me. Let's be clear about the relationship.

MR. KAY: As advisors. I mean, advising their client. I mean, that's how I was putting it.

JUDGE ROBINSON: Mr. Kay, we are at the time for the break, but it may be that you should bring your submissions to a close now by summarising them. I understand that you're making two principal submissions. First, for the accused to be examined by the doctors again.

MR. KAY: Yes.

JUDGE ROBINSON: The last examination being 51 days ago. And second, that the accused be allowed to examine the witnesses first, and you, the assigned counsel, would follow up with whatever questioning, additional questioning, you thought appropriate. And you make that submission in the interest of achieving a fair and expeditious trial.

MR. KAY: Yes. Your Honour has summarised it for me. Those are our submissions.

JUDGE ROBINSON: We will take the adjournment now, 20 minutes.

--- Recess taken at 10.34 a.m.

--- On resuming at 10.57 a.m.

JUDGE ROBINSON: Mr. Kay.

MR. KAY: Your Honour, before Mr. Nice starts, there's been a fax received by the Tribunal from one of the witnesses which was sent to me, copies to Your Honour. It's on this issue, and it would be appropriate, then, that it was put before you so that you were aware of it. It's from -- we have it here. ³²⁸⁶⁸

JUDGE ROBINSON: This is not just a procedural nicety, but witnesses must not make contact with the Trial Chamber directly. It must go through the Registry.

MR. KAY: It's sent to me. And it says: "Issue copies to," rather than contacting Your Honours directly. So it looks as though it has taken that into account.

JUDGE ROBINSON: Yes.

MR. KAY: This was to be the third witness, Michael Chossudovsky of the University of Ottawa. And I put it before the Court so they see the issue that we're facing from a witness who was third in the accused's list and the problem that we face.

Of note is the code of professional conduct there that is cited on page 4, which the Trial Chamber may understand is really part of the dilemma that we face in the overall issue.

JUDGE ROBINSON: Yes. Well, let it be routed through the Registry.

MR. KAY: Yes.

JUDGE ROBINSON: In the normal way.

MR. KAY: And there was one other matter I was asked to raise. Ms. Anoya, who is assisting in the administration, has a duty of confidentiality in relation to matters of preparation with the accused. There is a memorandum signed to that of the 17th of February, 2004, which the Trial Chamber will be aware of, sent to Judges Robinson Kwon, on her particular role, and there is obviously a duty of confidentiality there that we cannot breach, and she has not breached and would not seek to ³²⁸⁶⁹ breach in her dealings. Entirely professional.

JUDGE ROBINSON: Yes. Mr. Nice.

MR. NICE: Your Honours, I can be brief, most of the points I would have made having already been articulated from the Bench. I start as I started on the last occasion we discussed this matter in court, or in a similar way to the way I then started. We have a rational, reasonable court, facing an irrational and unreasonable accused. And so the argument is that since the irrational and unreasonable accused will not budge, the reasonable and rational court should be the one that makes a move.

The reality is that this accused has defied and continues to defy this Court and indeed now encourages his witnesses to do so.

JUDGE ROBINSON: Mr. Nice, is there evidence of that?

MR. NICE: I was going to qualify that sentence immediately. Whether he encourages them actively matters not at all. His attitude of defiance to the Court permits and/or in itself encourages them, as indeed we see from this latest letter. And to pick up a point made in a question by His Honour Judge Bonomy, can there be any doubt that if this accused were to say to his witnesses publicly, privately: "Look, I'm subject to an order of the Court that I don't like and that I am appealing, but nevertheless, because my defence is what we are concerned with, I would like you to turn up, even if you find it distasteful personally, because it is in my interests that your evidence should be given," can there be any doubt that they or the vast majority of them would turn up? If their ³²⁸⁷⁰ real interests was in a correct outcome of this case, and if they really believed that their evidence could contribute to it in a way favourable to the accused, they would not be taking the attitude they now take. And it is instructive to see on this topic how the letter that's just been passed to you ends in this way: "I cannot participate," end of page 5, "as a defence witness in a legal procedure which is a blatant violation of the accused's right to self-defence." Then over the page: "I nonetheless hereby confirm my acceptance to appear as a defence witness at a future date, if and when the functions of the defence are clarified and accepted by the defendant."

i.e., we've reached the position where the accused and/or his witnesses wish to control the proceedings of this Court. This brings us straight to the point that Your Honour -- His Honour Judge Robinson raised about the dignity of the Court being in itself a reason for assigning and continuing with the assignment of counsel to represent this accused. From those general points to one or two points of detail. On the issue of the order in respect -- the order of questioning witnesses and whether it can and should be reversed. Your Honours looked at the modalities order and I think will therefore have in mind that item number 2 ordains that questioning should be first by counsel and second by the accused, even if, as one of Your Honours observed, there is the provision in item 4 for variation. It would have been one thing, would it not, for this accused to have complied with the order of the Court to have asked questions after Mr. Kay and to have got on with that which he should have got on with, simultaneously saying, would you mind, please, under ³²⁸⁷¹ item 4 of the order, giving consideration now or in due course to reversing the order. In those circumstances, his application no doubt could have been entertained, whether granted or not, being not a matter for me. It is quite another thing for him to just press on with offensive defiance of the Court and then ask for consideration by Rule 4 of the clear order Rule 2 makes to the order in which witnesses should be engaged.

The next point of detail concerns the accused's associates. When His Honour Judge Bonomy first raised the vulnerability to orders of the Court, I wasn't sure -- or when His Honour Judge Bonomy first raised as an issue orders that the Court could make, I wasn't sure whether he was referring to subpoenas for witnesses or orders to the associates. But I was going to draw to Your Honours' attention in any event the terms of engagement of the associates, and I have before me the signed undertaking from Dragoslav Ognjanovic [phoen], one of the associates, dated the 22nd of April, 2002. And as Mr. Kay correctly summarised, it includes an agreement to be bound by the provision of the Statute, the Rules of Procedure and Evidence of this Court, the code of professional conduct for defence counsel. And it goes on to say: "And any other rules and regulations of the ICTY and judicial orders which may apply to me in my capacity as the legal associate of Mr. Milosevic." The matter has not been canvassed and therefore has not been fully argued, but the Chamber may decide that there is no reason why it should not order the associates to hand over forthwith to the assigned counsel the names and addresses and other supporting material for all witnesses on ³²⁸⁷² the list. And it would be for them, if they sought to defy such an order, to come into Court and explain their position.

We've had earlier occasions when the suggestion has been made by me that the associates should appear in Court. The accused always resisted their appearing, wishing to be the only person physically in Court on his on behalf. The time may have come for those associates - who will no doubt be here in the building at the other side of the glass at the moment - to be brought in to explain themselves and to be given an opportunity of arguing why they should not be provide the material that would assist assigned counsel.

There was the suggestion from my learned friend Mr. Kay, elegantly presented, and he, as one of Your Honours said, can only do his best in difficult circumstances. There was the suggestion that if the order of questioning was reversed so that the accused could go first, that he would then comply and enable the case to proceed more smoothly. Apart from the general observation that this is yet again the irrational and unreasonable man getting his way by acts of defiance, the Court will want to have in mind that any agreement, if the Court ever makes an agreement with a litigant, that it would strike with this accused, is not something that this accused would ever honour, for he has made it absolutely clear that this is a court he does in no way respect.

JUDGE BONOMY: It may be appropriate to observe, Mr. Nice, that that arrangement is, in any event, the one that you proposed in the debate earlier.

MR. NICE: Yes. But we are -- absolutely. I entirely accept ³²⁸⁷³ that. But since then the Court has made its own order.

JUDGE BONOMY: Indeed. But the point I am making is that it was a Prosecution idea in the first place. It doesn't initiate in the Defence.

MR. NICE: No, no. Certainly. Last small technical point. So far as the three witnesses called thus far are concerned, and lest at any future date it is suggested that their evidence fell short of what the accused wanted from them, we now know that the accused saw them and spoke with them before they spoke with Mr. Kay, and it is therefore reasonable to assume that by that system, one way or another, the evidence that those witnesses were called to give by the accused will have been given, whatever he says, because they will have known what he wanted from them, and there's no reason to believe Mr. Kay would not have been able to adduce from them the evidence that was wanted. I turn then very briefly to the medical position. As the Court has already observed, these reports were prepared on the basis of the complete record. It is clear that the medical condition is irreversible. It is not, I think, being asserted by Mr. Kay, still less by the accused, that every incident of ill health was actually triggered by wilful interference by the accused in his medical treatment. Therefore, we have a long-standing pattern of ill health triggered by an irreversible condition, the doctors in various ways expressing it as their firm view that a return to the previous form of working will lead to a return of the interruptions of the trial.

Of course, were the accused at any stage to say explicitly or implicitly that recent ill health which led to the delay from June until ³²⁸⁷⁴ September of the hearings were triggered by his manipulation of the drug regime that he was properly put on, this would be an overwhelming reason to say that his case had to be advanced by counsel, because a person who would manipulate a court in that way, it might be thought, would be wholly inappropriate as his own representative.

My learned friend has summarised in the schedule parts of the various reports, but it is instructive to observe that what Dr. Tavernier says on the 27th of August, at number 1, I think is worth also reading. I'll just find that. "He has severe essential hypertension." And then we come to the number 5, that if he continues to represent himself: "This will delay the progress of the trial significantly." That comes, really, without qualification. I say nothing further about the medical evidence because in our respectful submission it makes clear the view of the doctors, which is only really to reflect the experience of the Court, that if this accused, with his medical condition, attempts to do that which he was attempting to do, the trial of this case will be interrupted and extended beyond what is reasonable. I return to one or two observations I made on the last hearing. Although they don't fall for consideration in the point that's presently on its way to appeal, and that is that of course defiance, as well as breaches of etiquette, could easily justify imposition of counsel. I return to them in part because of the observations that His Honour Judge Robinson made about the dignity of the Court and in part because it is appropriate to have in mind that this Court has been extremely generous with this accused, even since the opening of his evidence, in giving him ³²⁸⁷⁵ every opportunity to speak, at every available time, and on each occasion he has carried on defying the Court. It will be for the Court to decide with what appropriate manners and politeness, but he has defied the Court and declined to follow an order that is, for the time being, lawful and of good effect.

Your Honours, I have nothing further on the substance to say. I think it may be appropriate to make this observation: That those who have attended to this sequence of events in the trial, or the sequence of events in the trial that bring us where we are, who also observed events in The Hague in 1991, when the Carrington plan was rejected by rejection of a reasonable offer and involvement of others in that, will inevitably draw parallels, and the point can be made as of that factual event as of this procedural one, that there is only so far that a court or anybody else can go in helping someone who is determined to set himself on a path that will not be to his own benefit. And I encourage the Court to maintain its position, to maintain its dignity, in the face of this defiance and requests that it should yield to this accused. Because in that way, by one means or another, a proper and just verdict will be returned, and in a timely way.

JUDGE ROBINSON: Thank you, Mr. Nice. Mr. Milosevic.

THE ACCUSED: [Interpretation] Thank you, Mr. Robinson. First of all, I'd like to say a few words with respect to the position and attitude of witnesses. Different interpretations have been given, and I have come to understand that it is not clear to you either, ³²⁸⁷⁶ because you asked questions as to what they say, or rather, I'm not going to deal with what they say. I have far less time, of course, than other people have had to elaborate and expound. But what I want to say is this: We cannot discuss matters in the which in which Mr. Nice is doing so and his attitude towards witnesses, which is insulting. They are people who have their integrity. They are people who have seen what took place. Mr. Kay mentioned ambassadors. I don't have to quote the name of a particular ambassador. You have it before you. But in a message which was sent not to me, but a message sent precisely to Ms. Higgins and Mr. Kay themselves, this particular ambassador, an ambassador from a western country, says: [In English] "I had decided to appear. I have from the outset had serious misgivings about the legitimacy of the Tribunal. The Tribunal subsequent proceedings have confirmed my fears that it is a political court rather than a juridical body operating in the interests of truth and justice. The most recent decision to impose counsel on Mr. Milosevic provides further evidence of this. I have not presumed the guilt of Mr. Milosevic, and it was for this reason I was earlier prepared to give evidence. Now, however, it would seem the Tribunal has, from the beginning, already determined his guilt. Unfortunately, the proceedings have taken on all of the characteristics of a Stalinist show trial. I do not want to be part of this travesty of justice."

[Interpretation] Not to quote further, just the final sentence --

JUDGE BONOMY: Mr. Milosevic, could you give us a name for that person, please. ³²⁸⁷⁷

THE ACCUSED: [Interpretation] Of course. It is Ambassador Jim Bissett.

JUDGE BONOMY: Thank you.

THE ACCUSED: [In English] "The frightening part is that it now seems evident justice was never a consideration of the Tribunal." [Interpretation] Mr. Kay mentioned the Prime Minister who made a public statement for the press, and in his public statement, he mentions and even quotes a part of his public statement where he says -- [In English] -- "...guaranteed the right of defendant to defend himself in person. It is a generally accepted normal international law and the fact that ICTY had committed such more serious violation raises the deepest concern."

[Interpretation] And he goes on to say: "Several legal experts believe [In English] Milosevic didn't get assigned counsel but another Prosecutor who will act only using other means." [Interpretation] Not to quote further, because I don't want to take up the Court's time. But here is another very respected American diplomat this time, and he sent the letter to me but I received it through you here, through your services and printed on your form: [In English] "After due consideration I had agreed, I had agreed willingly to be one of your defence witnesses at the ICTY. I believe then and still believe that you are innocent of all the charges in the Tribunal's indictments. Given, however, that the Tribunal has seen fit to take away your fundamental right to represent yourself in your own defence, the proceedings have become inherently unfair, amounting to no more than a ³²⁸⁷⁸ political show trial with no authentic legal legitimacy. Your defence, the defence for which I had consulted with you in The Hague, does not now exist. Consequently, I cannot in good conscience act as a defence witness under the Tribunal's current rules. Should the Tribunal reverse itself and allow you to conduct your own defence once more, then I would again willingly agree to be a witness."

JUDGE BONOMY: Is it possible to have the name again?

THE ACCUSED: Yes. [Interpretation] It's American diplomat George Kenny. And otherwise he was at the head of the Yugoslavia department in the State Department. And many conscientious people throughout the world who quite simply cannot listen to this pile of lies presented here by Mr. Nice. He doesn't even understand many matters, because if he had an understanding of them, he wouldn't pose them in the way he does. He mentioned the conference in The Hague a moment ago, and the first point on that agenda was to dissolve Yugoslavia. And then he goes on to talk about how a confederation should be been established on the basis of that document, rambling away, and when you dissolve Yugoslavia, which has six states, then it's up to those six states. We could have done the same with Bulgaria or Hungary. We could have entered into an agreement of that kind. But at the time the question was: Who had the right to dissolve a country that was a member of the United Nations, whether six presidents of the Republics who had no legitimacy to do so, or whether it was international deputies or whoever else. And now you, as international men of law, require somebody to explain to you what the contents of that message was. And Mr. Nice uses that as his starting point, as he does ³²⁸⁷⁹ with other -- Greater Serbia notions and so on.

All this shows not only ill intent but a complete lack of understanding of the facts, lack of knowledge of the facts and of everything that is going on in the country. So it is a question of substance, the fact that I should conduct my own defence and represent myself. Mr. Kay knows nothing about Yugoslavia, for instance. And secondly, this decision, and allow me to give you my opinions on that, and that is the conviction of many men, and ultimately, if you read the western press, you will be able to see that reflected, it has nothing to do with my health at all. Quite simply, the option was to make it impossible for me to speak. And ultimately, Mr. Nice, in his explanations and expoundings, explained that I wasn't allowed to be placed in a position in which I could examine important personages, that I wasn't allowed to speak, so that Mr. Kwon had to caution him and say that you made your ruling allegedly for health reasons.

And now, when it comes to health, let me say this: You did not adhere to the guidelines set by the doctors, and you led me into a situation in which I find my health seriously impaired. When I raised the question of the length of time necessary for preparation, I draw your attention to the guidelines given by my doctors, who allowed me to work three days a week. But you did not take any of that into consideration. The case -- the Prosecution case, as you refer to it, was precipitously stopped at a time when I was ill. So you have put the burden on me to abide by the deadlines given me and that when I was ailing. And I looked at the Registrar and consulted the Registrar, who is allegedly a neutral ³²⁸⁸⁰ organ, whether I would be given more time rather than the 12th of April as the deadline for me to provide you with a list of witnesses, and the answer I was given was that this was a decision on your part, your decision, and that it was out of the question that I should be accorded more time.

So you imposed this tempo, this rate at which I was to work, under conditions in which I was sick and feeling ill. So I had to stick to that deadline and supply you with that list. I had to go through a list which had over 1.300 names on it, names of witnesses, and with the help of my associates, of course, I had to bring this list down to -- from 5.000 names to one thousand three hundred -- 1.631.

So you imposed that tempo of work upon me. And all this story and talk about the fact that I wasn't adhering to my therapeutic plans is completely untruthful. It is because of the tempo that you have imposed on me that my health situation deteriorated, not because I did not follow my treatment and therapy. Because only somebody who is not aware of the procedure in your prison or Detention Centre can say that. That is to say, that medicaments are always taken in the presence of the guards as they were prescribed in the boxes they were prescribed in at the exact time when the medication was prescribed. So they are your doctors, and how they came by their conclusions I'm not interested in that at all. What I'm doing is indicating that it was precisely because of the fact that you did not abide by the suggestions and guidelines made by the doctors and their suggestion that I should work three days a week and imposing work on me and deadlines on me when I was feeling ill. I wanted ³²⁸⁸¹ to meet those deadlines because I wanted to provide you with a list of my witnesses. But that led to a serious deterioration in my health. So please, let us understand each other on one particular point and one particular matter. I have heard what Mr. Bonomy has said. Yes, I am given the right, if I do not avail myself of that right, then it's my problem, everything is fair. I was given the possibility of doing so. That's absolutely not true. You have taken that right away from me, taken my right away from me. Therefore, how can I avail myself and use a right that you have taken away from me? The truth is the opposite. I am asking you to give me back my right.

And you cannot give me back morsels of a right you have taken away from me, crumbs, and then say if you don't use those crumbs that we have given to you, then you're not availing yourself of the right that we are allowing you to avail yourself of and that was promised you. So therefore, please, I think we should understand each other on that point. I insist that you give me back my right to represent myself, to defend myself, to be able to call my witnesses and conduct the examination-in-chief, and everything that the right to self-representation implies, and that the case be conducted in that way, in the only possible way.

My associates were mentioned here. They are my associates, and they have nothing to do with you. It is correct that they had to sign a document that they will abide by the code, because that was a precondition for allowing them to visit me. They are adhering to that. They're behaving with utmost fairness in every conceivable respect. But that was ³²⁸⁸² the only way of handling this. I asked the Registry, as a neutral organ, to make it possible for me to have a few of my associates visiting me in prison because that was the only way in which I could obtain the documents that I needed and that I still need. To gather information from me, to communicate with people with whom I cannot communicate because I am in prison, namely, that they be some kind of connection I have with the outside world in this situation in which I have to function and which is a very constraining one. So they are working as my associates only. I give them certain tasks. They prepare certain things for me. They bring me certain things, and they make it possible for me to do what I deem necessary.

As for this statement made by Mr. Nice, yet another senseless one, that they be given some kind of information. Well, please, I have given all this information to your Registry. The list, the exhibits, everything else. They have no other information but that which I have already handed over to you. It is no secret.

I do not see how anything can be imputed as far as these people are concerned, that they may be called ill intentioned or whatever. I have done everything in my power to submit a witness list to you by the 12th of April, as required, and I did that. So please understand my request, which is very clear and very fundamental. Give me back my right to my own defence.

Mr. Robinson, yesterday you went as far as to say that my behaviour was petulant or capricious because I was asking for this right to be returned. You know what jus cogens is. That is not an act of ³²⁸⁸³ petulance in any way. I ask you to give me back my right to defend myself.

JUDGE BONOMY: Mr. Milosevic, you've indicated that your associates have no other information beyond what has already been handed over to the Court. Does that mean that they do not have the addresses of the witnesses whose names have been given to the Court?

THE ACCUSED: [Interpretation] Some contact telephones and other things, but they did hand all of that over to the liaison officer of the Registry. After all, these questions in relation to the witnesses do not pertain to any kind of absence of addresses. Ms. Higgins and Mr. Kay communicated with these witnesses. The ambassador I quoted communicated with them. It's not a question of there being no address and there being no possibility to communicate with him. Now, how do they get his telephone number? Probably from Mr. Tomanovic or whatever. It is basic civilised behaviour. You ask me for someone's address or telephone number and I give it to you. So it's not that anybody is trying to hide these addresses or telephones or anything.

JUDGE BONOMY: My question, Mr. Milosevic, was aimed at the, in Mr. Kay's words, 1.600 or so witnesses about whom he had no information with which he could get in contact with them. Are you saying that your associates have no further information in relation to those witnesses, that's those not already on a list before the Court, that's the first 48, I think he said, no information, no further information that could possibly be given to Mr. Kay?

THE ACCUSED: [Interpretation] There's no problem whatsoever of ³²⁸⁸⁴ conveying all information about all witnesses. There is no doubt that my associates can do that. If they do not have this information at this point in time, but there is no problem, they can have the contact telephones or whatever of any witness.

I repeat: This is a question of a civilised attitude. Why would they deprive anyone of this information? These are not secret telephone numbers, and my associates are not criminals or anybody's agents. So there's no problem whatsoever. All this can be obtained from the liaison officer. The liaison officer can communicate with my associates and receive every piece of information that the Registry may be interested in. There is nothing in dispute there. Are we going to stoop that low? Are we going to conceal information?

JUDGE BONOMY: I have one final -- thank you for that answer. I have one final question for you. Is it also your position that if witnesses can find it in their conscience to attend this Tribunal to give evidence, that you would wish them to do so?

THE ACCUSED: [Interpretation] That is up to every witness. I wish to say to you once again, not even in the most indirect way do I want to influence witnesses, in any way. That is up to each and every witness. You've heard Mr. Kay. He met the witnesses who came to see me. There are no obstacles on that path. And I do not think that I should be an obstacle on anybody's path leading to communication with anyone, that is to say, anyone who wishes to make a statement or be a witness or whatever.

JUDGE BONOMY: Would you wish, then, to encourage them to come?

THE ACCUSED: [Interpretation] Mr. Bonomy, they are reasonable ³²⁸⁸⁵ people. They are people of integrity. It is up to those witnesses.

JUDGE BONOMY: Thank you, Mr. Milosevic.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Kay, would you want to say anything in response?

MR. KAY: Yes.

JUDGE ROBINSON: Briefly.

MR. KAY: Taking up the last matters of the accused and the questions of His Honour Judge Bonomy.

In the break I spoke to Mr. Tomanovic. He confirmed to me that in some instances they have no contact details at all, 200 witnesses was the figure that he used, that these are people who have agreed through intermediaries, because of their standing and position, that in relation to those witnesses where he has e-mail and telephone details, which is largely what he has, if not totally, those would be made available. He wasn't concealing them. For instance, in the case of witness Avramov he couldn't say where she lived. He had telephone and e-mail contact, and that was how, I believe, the procedure through his channels was set up to obtain the cooperation of witnesses who were cooperative with him. From our position, it may be a different position.

JUDGE ROBINSON: Thank you, Mr. Kay.

[Trial Chamber confers]

JUDGE ROBINSON: We'll adjourn for 25 minutes.

--- Recess taken at 11.40 a.m.

--- On resuming at 12.14 p.m. ³²⁸⁸⁶

JUDGE ROBINSON: I gave the Chamber's ruling on the two submissions made by Mr. Kay. The first was a request that the accused undergo under medical examination. The Chamber observes that the recent decision was made on the basis not just of one examination; in fact, the medical reports were done on the basis of the full medical history of the accused, in particular, his history during this trial. And the reports made it clear that his condition was chronic and recurrent. The Trial Chamber must look not just at the condition of the accused today, but must take account of his medical history as a whole. The request is denied. The second was a proposal that the accused should examine witnesses first followed by the assigned counsel. In the Trial Chamber's view, this would not effect any substantial change from the previous regime, and it is clear from the medical reports that the strain and stress that this would involve would necessarily lead to a deterioration in the health of the accused and to further interruptions of the trial. That request is denied.

Mr. Kay, I just wanted to address this to you. The last exchange that we had before the adjournment showed that communication is possible between yourself and the associates, and indeed it seems that you only obtained certain information from the associates in the last break. It's clear that you need to make further investigations, and the Chamber has always made it clear that it was prepared to grant you time to make these investigations. And the Chamber would wish to hear you on that matter.

MR. KAY: The first matter is, obviously, we need to see how far they would be willing to assist us. To date, because of the ³²⁸⁸⁷ circumstances, they have not been able to work with us. It's a different matter from supplying names and telephone numbers and e-mails from actually obtaining the witness and being able to take a statement from the witness, as well as surrendering whatever information they have, which I suspect is in B/C/S, in note form. That is unclear how that kind of relationship would be able to work.

JUDGE ROBINSON: But you must make your best efforts, and if you need to, then come back to the Chamber.

MR. KAY: We're aware of that, and so far we've been attempting to deal with matters as they've arisen. We've really had no opportunity or time to deal with it in any other way.

At this stage in the trial, because of the appeal on the principle of the assignment of counsel that's been lodged, we would ask for a stay in the proceedings until that matter is determined and heard, because it can make such a significant difference to the ongoing nature of this trial if the accused's appeal succeeds. It would be wrong, in principle, in our submission, if his appeal succeeds, for him to have been faced with a period of time when the case has been out of his control and presented by someone else.

JUDGE ROBINSON: Normally interlocutory appeals at the Tribunal do not stop proceedings in the trial process.

MR. KAY: Given that we would be requesting in our Appeal Brief, when filed, for an expedited appeal on this issue, as a matter of principle, and being a significant factor in relation to the presentation of the accused's case, we would hope that the Appeals Chamber would be ³²⁸⁸⁸ able to deal with the matter expeditiously.

JUDGE ROBINSON: Even if expedited, wouldn't we be looking at a period of at least two weeks?

MR. KAY: I'm unaware of a period. But it would be, in our submission, a period of time that would not be wasted, as it could enable preparations on defence issues to take place in the meantime. We would not just be awaiting the outcome, obviously; we would be attempting anyway to look at Defence witnesses and to try and put together a body of materials. It would give us an opportunity to take some time on that. I don't know how long --

JUDGE ROBINSON: I think that's a sound basis for an adjournment. The time you need to carry out investigations, to get witnesses.

MR. KAY: I don't know how long we will need, so I cannot put in a period of time. It's experience and how things work that really predicate, and how many --

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Kay, do you have any witnesses to proceed with?

MR. KAY: Not this week. We have one witness for next week, who, on the document filed on behalf of the accused by the associates, was indicated as being two and a half hours. The following week we have one witness available, and that is as far as it goes at the moment.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Kay, if we were to grant the adjournment, what would be the prospects of the witnesses attending after the ³²⁸⁸⁹ adjournment?

MR. KAY: I'm sure these are witnesses who could be obtained again from the -- they're people that we would be able to reschedule into a later date.

JUDGE ROBINSON: And another way of looking at it is whether the second witness would be available for next week, so we could have two --

MR. KAY: No. No, he's not available for next week. The week after that, i.e., the third week, there are two possible witnesses. It's very unclear. At the moment, we're just taking up from these first schedules witnesses that were found there. I can't begin to claim that it's more organised than it is.

JUDGE ROBINSON: Well, we consider it entirely reasonable that you should be granted a period to better prepare yourself.

MR. KAY: Yes.

JUDGE ROBINSON: And indeed, had you requested it at the outset, the Chamber would have granted it.

MR. KAY: Yes.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Nice, we have in mind granting Mr. Kay a period of about four weeks. Do you have any comments on that?

MR. NICE: Yes. We would first of all press you to say that, in principle, there's no justification for a stay, but it may be that I don't need to address that argument specifically. We press you to keep the present witness dates that Mr. Kay has spoken of. I think I know the name of the first witness. For the witness for the following week, I'm not ³²⁸⁹⁰ sure who that is. I'd be grateful for knowing who that is. I know that one of the major Russian witnesses has said publicly that he is prepared to come and give evidence, and it may be that that's one of them. It seems to me, if I may respectfully so suggest, that there's nothing inconsistent between calling one or two witnesses in this period of time which may be difficult for them to get witnesses, calling the witnesses who are available and carrying on with the rest of their preparatory work. And that this would probably be a better use of time, not least because of course the counsel would have regular contact with the Court, so that it could bring it up to date with how it's doing and whether there are any other problems. Thus, next week, one witness, and I know which witness it is, he won't take I think very long to give evidence, the following week it may be a substantial witness, take a little longer to prepare, but meanwhile there's plenty of time for counsel to be getting on with their general preparation because that appears to be work conducted here in The Hague.

And I would press you to keep the existing witnesses and really integrate preparation time with the calling of witnesses to keep the case going. Putting it off for four weeks, we may then find that there's a further inability to call witnesses for every hearing date and that you won't be having three days a week, and therefore, much better to have got the witnesses in when we can get them in now. So that would be our suggestion. But I'd be very grateful to know who's the witness, or witnesses, available for the following week.

JUDGE ROBINSON: Well, Mr. Nice, you have had a lot of experience ³²⁸⁹¹ in getting witnesses.

Mr. Kay, what do you say to that? Mr. Nice is of the view it would be better to maintain the witness list and have one witness next week and another the following week.

MR. KAY: Of course we could operate like that, but we want to get an overall view of what is out there. At the moment, as I'm saying, we're picking names of people that happen to be available from the first batch without being able to consider the overall context of who is willing to testify or not. Because at some stage, there has to be a sifting through of these numbers.

JUDGE ROBINSON: Did you answer whether the second witness might be available next week?

MR. KAY: He's not available. No. That is why, if he would have been, we would have put him in that week. There are visa requirements and things like that that need to be considered.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Kay, we take account of what you just said, that you really want to be able to get an overview of the witness situation. And I gather you would not want to proceed in a piecemeal manner. Let me be clear: Would you actually prefer to have a four-week adjournment rather than have a witness next week and then another witness the following week?

MR. KAY: Absolutely. We would rather be able to make an assessment of priority and ask the accused's associates if they're able to help with a prioritisation, to assist in who gets contacted first and who ³²⁸⁹² is sought to be made available first.

JUDGE ROBINSON: The Chamber takes account of that, and we'll grant you the four-week adjournment on that basis. It is not on the basis of a stay pending the appeal.

MR. KAY: We also need to discuss with the Registry --

JUDGE ROBINSON: Sorry. Although, of course, it's very likely that the appeal would have been heard and adjudicated upon in that period.

MR. KAY: We also need to discuss with the Registry technical support, support staff, in relation to the proofing and obtaining of witnesses. The scale of the task we've made clear to the Trial Chamber, and that will take some time to put into operation.

[Trial Chamber confers]

JUDGE BONOMY: Mr. Kay, for my part, I would certainly expect that period of time to be used actively throughout the period for the investigation of the case, albeit there's an appeal outstanding and that will have to be dealt with as well. The view we're taking is that if the decks are cleared for you from commitment here in Court, that should allow you a reasonable time to take active steps to carry out sufficient investigation, hopefully to resume at the end of that period. Obviously, we'll consider the position then. But I take it the last remarks that you made don't herald a period of time when nothing at all will happen.

MR. KAY: Certainly not. We've started on this already, and that's how we've learnt what we're facing. And it was our intention to start on it, so far as we can, straight away. But the support that's needed is outside us two. ³²⁸⁹³

JUDGE ROBINSON: We expect the Registrar to make the necessary arrangements for you to discharge your functions, and we have every confidence that he will.

MR. KAY: Thank you.

JUDGE ROBINSON: We are adjourned until Tuesday, the 12th of October.

MR. NICE: Can I just raise one matter?

JUDGE ROBINSON: Yes.

MR. NICE: I raise it for two reasons, just to keep the Chamber informed of something and also to ensure that the accused can understand the basis of one aspect of relations between Prosecution counsel and assigned counsel, given some of the extravagant things that have been said adverse to Mr. Kay by the accused.

The Chamber will recall that we have been providing periodically documents of analysis. They were originally called fill-box documents, they then were called documents analysing the evidence. The Chamber will further recall that there's been a change in computer software that is used by the Prosecution office, and having to convert our documents to -- not having to, we're choosing to convert our documents to new software that will make material much more easy to search for those who have the computer skills.

It's always been my intention that we would provide these documents on a rolling basis, and I think they've been found to be helpful. I don't know about the Chamber, but certainly by Mr. Kay and his former incarnation as an amicus. And I recognise that they have ³²⁸⁹⁴ difficulties, of course, in researching the trial record and that they may find these documents helpful.

We may, therefore, in the process of converting to the new software and bringing the documents up to date, they were last served at the 98 bis stage of the case, we may serve these documents on Mr. Kay and he may find them helpful. We'll serve them, of course, on the Court as well. But if that happens, I hope the accused will understand that this is not done in any way to poison or infect the assigned counsel but simply to carry on a pattern of cooperation and assistance that we've given all parties in the Court with the material at our disposal.

JUDGE ROBINSON: I'm sure Mr. Milosevic will understand that. We are adjourned.

--- Whereupon the hearing adjourned at 12.39 p.m., to be reconvened on Tuesday, the 12th day of

October 2004, at 9.00 a.m.