¹

Thursday, 21 October 2004

[Appeal Proceedings]

[Open session]

[The accused entered court]

--- Upon commencing at 9.01 a.m.

JUDGE MERON: Please be seated. I would like to begin by saying good morning to the interpreters, to make sure everyone is in his or her place.

Oh, you have no earphones. That's serious. Judge Weinberg, okay?

I would like to begin by saying good morning to the interpreters first. I see they're in place. Good morning to the Prosecution, and to the assigned counsel, and to the accused.

First of all, I would like Madam Registrar please to call the case which we are hearing this morning.

THE REGISTRAR: Good morning, Your Honours. This is the case number IT-02-54-AR73.7, the Prosecutor versus Slobodan Milosevic.

JUDGE MERON: Thank you, Madam Registrar. I would now like to ask for the appearances of the parties. First the assigned counsel.

MR. KAY: On behalf of assigned counsel, it's myself Steven Kay and Gillian Higgins.

JUDGE MERON: Thank you, Mr. Kay. And now to the Prosecution.

MR. NICE: The Prosecutor, as you see, appears in person. I, Geoffrey Nice, assisted by Rebecca Graham and case manager Diana Dicklich.

JUDGE MERON: Thank you, Mr. Nice. I would like to make sure that ² the interpretation is okay. Mr. Milosevic, can you hear us in a language that you can follow?

THE APPELLANT: [Interpretation] Yes, I can hear you.

JUDGE MERON: I would now like to start from giving a brief background of the case that we will be hearing this morning. Let me first remind you that we are here on an interlocutory appeal from the Trial Chamber's decision to impose counsel on Mr. Milosevic for the presentation of the Defence case of the trial. This question has been percolating in one form or another since very early on in Mr. Milosevic's trial. During the first stage of the proceedings, the Trial Chamber rejected the Prosecution's motion that Defence counsel should be imposed on Mr. Milosevic, finding that imposition of counsel, in the Trial Chamber's words, is "not normally appropriate in adversarial proceedings such as these."

After the close of the Prosecution's case, however, the Trial Chamber came to rethink its earlier position. Due to multiple delays caused mainly by Mr. Milosevic's ill health, the Trial Chamber has become increasingly concerned about his ability to present a successful defence. In reviewing the issue anew, the Trial Chamber ordered that medical examinations be performed on Mr. Milosevic and ordered briefing from the parties on the question of whether Mr. Milosevic was capable of properly presenting the defence portion of his case at trial. After reviewing the reports of the medical doctors and taking the parties' legal positions into account, the Trial Chamber ultimately decided to impose counsel on Mr. Milosevic for the defence phase of his ³ trial. It rested its decisions largely on the ground that Mr. Milosevic's health would be seriously endangered by the continued burden of conducting his own defence at a level that would permit the trial to be completed within a reasonable time. The Trial Chamber then granted certification to appeal its decision on an interlocutory basis, and assigned counsel has appealed the ruling on Mr. Milosevic's behalf.

Assigned counsel has challenged the Trial Chamber's ruling on several distinct grounds. First, assigned counsel contends that Mr. Milosevic's right to a fair trial cannot override his right to defend himself since neither the letter nor the spirit of the ICTY Statute allows the Tribunal to frame an overarching right to a fair trial as superior to the individually enumerated trial rights.

The Prosecution responds that Mr. Milosevic's right of the exercise of his trial rights is not absolute but is subject to the control of the Trial Chamber to ensure a fair and expeditious trial in the interests of justice. The fairness of a trial, the Prosecution contends, must be judged not merely by reference to the accused but also by reference to the Tribunal and its own interest in legitimacy. Second, assigned counsel argues that Mr. Milosevic's right to defend himself is more important than the need to continue -- to conclude the trial as speedily as possible. Enshrining individual rights, assigned counsel argues, is an empty exercise unless the Tribunal is prepared to enforce those rights even when they prove inconvenient, particularly when any inconvenience is not caused by the intentional actions of the accused. The Prosecution responds that the Defence underplays the ⁴ importance of the continuation and completion of this trial. Furthermore, the Prosecution contends there are additional reasons quite apart from those cited by the Trial Chamber that justify the imposition of counsel on Mr. Milosevic. Specifically, the Prosecution argues Mr. Milosevic has intentionally obstructed his trial by intentional manipulation of his medication regime so as to produce periods of ill health and by systematically disruptive conduct when he's actually in the courtroom. Assigned counsel's third ground of appeal is that once the Trial Chamber decided that Mr. Milosevic was so sick as to be unable to represent himself, the Trial Chamber should have considered the preliminary issue of whether he was even fit enough to stand trial. In particular, if Mr. Milosevic is so unwell as to be unable to conduct his own defence, assigned counsel suggests that he may well also be unable to exercise his right to testify at trial over a prolonged period. The Prosecutor responds that testifying is unlikely to be as stressful and difficult as conducting his own trial from beginning to end. There is no indication, the Prosecutor concludes, that Mr. Milosevic's inability to act as a full-time lawyer in a highly complicated case casts doubt on his ability to testify in court.

Fourth, assigned counsel contends that the Trial Chamber should have allowed Mr. Milosevic to obtain his own medical report so that he could challenge the finding of unfitness to represent himself. Because Mr. Milosevic is concerned that the doctors who examined him are biased against him, he should have had the opportunity, as a procedural matter, to present his own evidence on a question of such great importance. ⁵ The Prosecutor responds that Mr. Milosevic did not raise this question in a timely manner, and further, that there is no indication that the examining doctors were anything but fair in their analysis. Fifth, assigned counsel argues that the Trial Chamber should have requested an updated medical opinion before assigning counsel to Mr. Milosevic. Because a month and a half had passed since the doctors' examinations and since Mr. Milosevic had successfully presented a two-day opening Defence statement, the Trial Chamber should have made sure that he was still unfit to represent himself on September 2 when the order issued. The Prosecution responds that Mr. Milosevic's health has shown every sign of degrading, not improving, and further argues that repeatedly revisiting the question of Mr. Milosevic's health would only jeopardise the successful completion of the trial.

Sixth, assigned counsel argues that the Trial Chamber should have sought to create some modified working regime within which Mr. Milosevic could have continued to represent himself. Assigned counsel suggests that the Trial Chamber could have reduced the number of trial days per week or given a recess for Mr. Milosevic to recover fully, or assigned stand-by counsel to assist Mr. Milosevic.

The Prosecutor responds that the trial is already on a reduced working schedule of three days a week to accommodate Mr. Milosevic's health and that there is no indication that Mr. Milosevic would cooperate with stand-by counsel any more than he intends to with assigned counsel. Seventh, assigned counsel argues that assigning counsel to Mr. Milosevic against his will is going to cause enormous practical ^{6 BLANK PAGE 7} problems. A number of Defence witnesses are already refusing to cooperate due to the change in representation, and Mr. Milosevic himself has categorically refused to communicate with assigned counsel. Furthermore, assigned counsel argues imposing counsel may not save much time anyway since some adjournment is necessary to allow assigned counsel to undertake preparatory work for the Defence presentation.

The Prosecution responds that these difficulties are not great enough to justify overturning the Trial Chamber's order and observes that the Trial Chamber does contemplate that Mr. Milosevic may participate in the trial, albeit at an auxiliary level.

Assigned counsel's eighth and final argument focuses on the Trial Chamber's order for the future conduct of the proceedings in which the Trial Chamber noted that assigned counsel would examine each Defence witness followed by a discretionary ruling by the Trial Chamber as to whether Mr. Milosevic could also examine the witness. Assigned counsel contends that restricting Mr. Milosevic's ability to question the witnesses only exacerbates the difficulties presented by imposing counsel in the first place; principally the fact that examination by assigned counsel can never accurately reflect Mr. Milosevic's case given his refusal to meet with assigned counsel.

The Prosecution responds that this issue is not properly encompassed within the question certified for review by the Trial Chamber. Furthermore, the Prosecution contends allowing Mr. Milosevic first crack at examining his witness would serve only to foment further delay and uncertainty in the trial. ⁸ That, in a nutshell, is an outline of the varied set of issues we are facing today. Now we will turn to hear from the parties. In agreement with my colleagues, we have decided that the hearing will take place as follows: After this introduction, assigned counsel will present Mr. Milosevic's case. He will have 40 minutes to do so. Then Mr. Milosevic will be afforded 40 minutes to present his case on his own behalf. At that point, the Prosecution will have 50 minutes to present its responses to the arguments presented by assigned counsel and by Mr. Milosevic. Finally, both assigned counsel and Mr. Milosevic, in that order, will be given 15 minutes each to rebut the Prosecution's submissions.

During the parties' presentations, we, the Appellate Bench, may of course and will impose questions that we may deem particularly important in helping us to resolve and to consider this appeal. Having laid down these ground rules, I would give the floor immediately to Mr. Kay. Mr. Kay.

MR. KAY: Thank you, Mr. President. The accused, when he first appeared before this Tribunal on the 3rd of July, 2001, consistently asserted his right to defend himself before this Tribunal, and he has never changed from that position during the course of the trial proceedings.

A reconstituted Bench of Judges because His Honour Judge May, unfortunately, was unable to continue in the proceedings, made an order on the 2nd of September which fundamentally altered the structure and basis of the trial before this Court. As soon as that order was made on the 2nd ⁹ of September that he no longer be permitted to represent himself and that he would have counsel imposed upon him, Mr. Milosevic orally expressed his desire to appeal, in consistency with his previously asserted rights by him.

As assigned counsel, we have filed an appeal on his behalf. He has made no filings on his own behalf, and he will make his own submissions on this issue today.

The Prosecution oppose this appeal, as indeed they have opposed the fundamental right of this accused to represent himself from the beginning of the trial proceedings against him. This has been a concerted attack over the period of three years against this accused being able to present his own case and conduct proceedings on his own behalf. Various arguments have been raised in opposition to his performance of what he sees, and many others see, as being such a fundamental right. They have ranged from the sheer size and manageability of the case. That issue was created by their own applications to join three indictments. They range from allegations of obstructionism, none of which have been founded by the Trial Chamber. They range from assertions of irrationality. And the point we make today on his behalf is what is irrational about wanting to assert your own rights in your own trial, a trial that has consequences for your liberty and your reputation? There are three matters that we submit should be dealt with first of all. In the Prosecution response on the 11th of October, the Prosecution cite additional reasoning in support of their opposition to this appeal but reasoning that was expressly rejected by the Trial Chamber ¹⁰ during the proceedings. They have not cross appealed in relation to the ruling of the Trial Chamber. They are attempting to broaden the basis of the decision made by the Trial Chamber to carry grounds which they say give more force in support of the decision to remove the accused's right of self-representation. But of course, those grounds did not form part of the reasoning of the Trial Chamber. What is at issue in the appeal here is the decision and reasoning of the Trial Chamber, not reasoning that it did not apply.

Prosecution's additional grounds, having been rejected, are cited within this response to the appeal by them, we say as an attempt to prejudice him in the eyes of this Appeals Chamber and to make the background and reasoning of the Trial Chamber cloudier, more grey, more inclining to a decision in their favour on this issue. The recent volte face by the Prosecution on the issue of obstructionism is in contradiction to that which they had previously stated during the proceedings, that they felt his behaviour was short of obstructionism. During the hearing itself, the Trial Chamber discarded that as being a valid ground. We say this displays a desperation to prejudice this accused and to stop him from regaining his fundamental right to represent himself. We say there is no legal basis which the Prosecution can resurrect arguments considered fully and dismissed at first instance when they formed no part of the decision made by the Trial Chamber.

We wonder if this Court can give us an indication as to their view on that matter, because it obviously makes a difference to the nature of ¹¹ the presentation today.

JUDGE MERON: Thank you, Mr. Kay. I think it would be useful if you would address these arguments made by the Prosecution regarding obstructionism. And to aid you, perhaps I could suggest some lines of thought or issues that you would like to address this morning, because that would aid the Court in its consideration.

I would like you to tell us whether we cannot review the evidence which is in the record, such as the blood tests and the doctors' conclusions that Mr. Milosevic may have been intentionally sabotaging his treatment regimen. This is the first question.

Let us assume that we decide to review that evidence, which is on the record. I would like you to comment on a number of issues that I would like to present to you now.

The blood tests could be seen as a fairly strong evidence that Mr. Milosevic has not been following his treatment regimen. Do you agree or disagree?

The second question I would like to ask you is that the Prosecution has cited a wide range of behaviour in the courtroom, some of which could be seen as quite obstructionist. Would you agree that at some point a self-representing defendant could become so obstreperous as to justify imposing counsel? If so, what to make of the Prosecution's argument that that point has been reached here, that his behaviour in Court, even when he's well enough to be present, has so obstructed the trial that it is necessary to impose counsel for that reason? Now, if it is found that Mr. Milosevic has been delaying the trial ^{12 BLANK PAGE 13} through deliberate misconduct, what would you suggest should be an appropriate remedy for that?

So these are the issues that I think would be very useful if you would address more than in your initial presentation until now. Thank you, and the floor is again yours.

MR. KAY: I'm grateful, Mr. President. Firstly, the non-following of the regime was not accepted by the accused. He did not accept that he had not been following his proper medication. This is an issue that the accused wanted to challenge through the production of alternative medical evidence, but the Trial Chamber, by a majority, not unanimously, rejected that approach and decided, although he contested the matter, that because it was made at a late stage that they were still entitled to make the ruling that they made. In our submission, that is a clear exercise of an error of discretion to this issue, because this is a matter that went to a fundamental right as to the approach and conduct of the Defence case. And in the context of a trial and a defendant, one cannot think of anything more fundamental, more going to the interests of justice, more going to the fairness of a trial than that that concerns the right to present your defence as you want it rather than how somebody else wants it to be presented.

In relation to the behaviour of the accused, there was a finding that he had not been obstructionist. There has been a concession by the Prosecution in their pleadings that it stopped short of obstructionist. I repeat what I said earlier: Citing additional grounds such as ¹⁴ this is a clear attempt to influence this Appeals Chamber in the direction that they have wanted this case to go from the very start. His Honour Judge May said very early on that he couldn't think of anything more fundamental than the right to present a Defence. That was a ruling that was never accepted, always challenged, and even on -- in relation to the evidence upon which the ruling of the Trial Chamber was based, we say unfairly attempted to be undermined despite the findings of the Trial Chamber who have had conduct of these proceedings, who have been the ones who have had to deal with Mr. Milosevic on a daily basis, who are the ones who have had to follow the flow of the proceedings. Not even they, on this issue, agreed with that approach. And in view of the concession by the Prosecution, it must seem to any outside observer totally irrational to start, having made a concession, seeking to raise it on such a fundamental issue. And that is why we say this could be rejected.

As to suggestions for the future, perhaps I can deal with that at the end of our submissions, because we go on to the issue of stand-by counsel. And in respect of these matters we respectfully submit our experience over the last six weeks is valid for this Trial Chamber to understand.

There is another matter that needs a preliminary ruling, if you like, or indication, and that is the failure of the Prosecution to seek leave to file, in relation to their response, a document in excess of the prescribed limit, 30 pages or 9.000 words.

JUDGE MERON: Excuse me, Mr. Kay. Before you proceed with this ¹⁵ point, will you return to the -- to discuss the request by Mr. Milosevic for an additional medical examination? If not, I would like to ask you something about it now.

MR. KAY: I can deal with that now, Your Honour.

JUDGE MERON: Mr. Milosevic wanted to have a medical exam performed by a doctor of his choice, as you have indicated a few minutes ago. Why shouldn't we, Mr. Kay, consider that this argument has been waived? He did not make this request until September, well after it was clear that his health was at issue in the question of imposing counsel. His answer, I believe, was that it has never crossed his mind that counsel could be imposed, but surely that was the entire point of the medical exams. The Court had invited briefing on the issue. It could have been hardly a secret or a mystery to him.

And we do know that Dr. Dijkman's own report agrees with Dr. Tavernier's recommendations, and Dr. Dijkman has been treating -- the treating physician for three years of Mr. Milosevic. Could we have some guidance from you on that, because it is an issue of relevance.

MR. KAY: It did come as a complete surprise to him.

JUDGE MERON: Now could it?

MR. KAY: He had advisors who had not obtained their own medical report. There had never been an order requiring the accused to provide medical reports. There had never been an order by the Trial Chamber that gave an indication that they would find that important for him to act upon.

And don't forget, he opened his case for two days. If he was so ¹⁶ unfit as not to be able to represent himself, why was he permitted to open his case for two days? That led to a reasonable expectation on his part that he would be able to represent himself. And he said in the proceedings at the end, "This has come as a shock to me." And in his understanding of the matter, it is quite clear he was surprised that such a fundamental removal of rights would take place on the basis that it did.

JUDGE MERON: Mr. Kay, should we really put much stock on the fact that Mr. Milosevic was able to make that two-day opening statement? The Trial Chamber's conclusion, and correct me if I'm wrong, was not that Mr. Milosevic was never able to participate in the trial. The Trial Chamber concluded instead that his intermittent bouts of poor health were very disruptive, were so disruptive, according to the Trial Chamber, as to necessitate the imposition of counsel. So why should we attribute much importance to the fact that Mr. Milosevic was well and performed well during those two days of his opening statement?

MR. KAY: Well, because the previous report had been over a month before. He'd had no check-up since the 27th of July. Each doctor is confirming the other here. There'd been one significant examination, and there'd been one prior to that. So there had been a delay. Times change. The reports themselves refer to the currency of the situation at that moment. Those reports do not say that this is a situation that will be irrevocable. They do not say that. It was the Trial Chamber's interpretation of that several weeks later, in the form that they did, that we say drove them into error on this fundamental issue. And in allowing him to open his case, there is the principle from ¹⁷ my jurisdiction of estoppel. It may be in other jurisdictions, I don't know. But in a way they have estopped themselves. If it is so fundamental and serious that it requires a decision, why give the reasonable expectation that you're going to be able to conduct your Defence and then take it away? In many respects, it is almost like -- and I'm searching for the right word. It's almost like a trick to an accused, a trick to him that he does something and then it's taken away when there had been no alteration in circumstances. So when he was allowed to open his case, in our submission, that was a reasonable indication that he was going to be able to continue representing himself, and perhaps mindful about being absolutely scrupulous in following any medical regime that was suggested.

This accused, at that stage, had a decision made which said the risk here that there's going to be further disruption in the proceedings. Because of that risk, we will supplant it with another risk. That risk is that we will impose counsel on you who will receive no instructions, no basis of the Defence strategy, not be able to command the respect of the witnesses to attend the court, not be able to conduct the case in the way that the accused wants the case to be conducted. What is the greater risk to injustice, we say. What is the greater risk to unfairness? It can't be that there will be disruption of the proceedings. It can't be that it's more important to have the case finished than the case properly tried. And the issue here, in the interests of justice, is that justice be seen to be done. And a case that is not his case is a greater risk that there be a wrongful conviction, which carries with it serious ^{18 BLANK PAGE 19} consequences, rather than that there may be in the future disruption to the proceedings that causes inconvenience to the court timetable. We are all mindful of the termination of this Tribunal, which has been decreed and set out. We are all mindful of that, but we are still only in the year 2004. And for this accused's --

JUDGE MERON: Let me just assure you, if I may, that the completion strategy of the Security Council is not a consideration which has any bearing on our consideration of this case. Our job is to do justice, so don't worry about those extraneous considerations.

MR. KAY: That is why we say here that the risk was unjustified, for the very reasons you have said, Mr. President. It cannot be that the interests of justice are decided upon a basis of greater convenience to the function of justice than the right to have the case heard properly. What we have here is a -- a right enshrined as a minimum guarantee, a right that has to be fully respected. The Trial Chamber looked at an overarching principle, but in terms of buildings construction, if you take out a brick in an arch, the arch falls down. And this is more than one brick. This is half the arch. This is so fundamental to the structure of the fairness of the trial that to view those rights as not being constituent parts of a fair trial that have to be respected, which is why they have been enshrined in the Statute, they cannot be ignored, and they determine whether what has taken place is fair or not.

The issue of fairness has to be considered not only from the point of view of the Prosecutor, not only from the point of view of those that ²⁰ run the court, but of the accused, whether he is confident that his trial is being conducted fairly. There may be circumstances in which an assigned counsel is gratefully received by an accused, and there there is no injustice. There may be circumstances where obstructionism in the face of the Court, as all the other authorities in the jurisprudence are concerned, there may be occasions then when the Court appoints a stand-by counsel to deal as a remedy with what is taking place. That is why all these additional grounds that the Trial Chamber rejected have been put in here, because the Prosecution knows that's their best bet of obtaining the decision that they want. But when it is not in that category of case, the trial is unfairly warped against the accused if he is not able with confidence, nor those observing able with confidence to believe that the Defence that he had, his Defence - it's no one else's Defence, it's personal to him - was properly submitted for consideration by the Judges. An assigned counsel such as me, without instructions, is never able to say that I have put his case, because his case has never been given to me, and it is not my job to make up Defences or believe I know better than him. He, after all, is the person who is intrinsically involved in the events that have taken place.

The historic nature which the Prosecution cite of this trial, which they cite in their support as a reason for the decision being made, will not be a trial viewed by history with certainty and approval if those reading about the trial can say, "Well, that was the Defence put by his assigned counsel. We never heard it from him." That is what the verdict of history would be in relation to the circumstances that come about from ²¹ this accused having imposed upon him a counsel whom he does not accept. The Trial Chamber's view was that this principle yields, that the right to a fair trial may yield in relation to the competing right that the case must not be disrupted, that the proceedings must be brought to a conclusion. There is nowhere within the articles of the Statute of this Tribunal any concept of the yielding of one right to another. Quite the opposite. The right we're concerned with is seen as a minimum guarantee, the absolute minimum guarantee that you will get when you stand on trial. To introduce a concept that one right yields to another when that right is so fundamental to the fairness of the trial, we submit, is contrary to all principles of jurisprudence.

JUDGE MERON: What, then, should be the components of the concept of justice that we should consider in addition to what you said about the right of Mr. Milosevic to represent himself? Does this subsume, then, the entire concept of justice in this case?

MR. KAY: The Trial Chamber, under Article 20, is given the duty to ensure that a trial is fair and expeditious and the proceedings are in accordance within the Rules of Procedure and Evidence, but that is subject to this: With full respect for the rights of the accused and due regard for the protection of victims and witnesses. With full respect for the rights of the accused.

So to achieve fairness, this is a constitutive component that Judges have to follow. It is not for the Judges to rewrite the principles of the fairness within the Statute. Rights of the accused are separately enshrined in Article 21. And as the Court knows, it states all persons to ²² be treated in full equality, a fair and public hearing, presumed innocent until proven guilty, and then minimum guarantees in full equality. Nothing about yielding, nothing about the subservience of one right to another, and indeed nothing that indicates that the Judges may not respect those rights. Quite the contrary.

JUDGE MERON: Isn't part of the function classical function of the judiciary, Mr. Kay, in fact to balance one right against another when there is some tension among them? It seems to me this happens in practically every case.

MR. KAY: You may balance in the decision-making process, but you have to apply the law and the Rules. And the law is here, and it doesn't say that it may be balanced against another issue. What it does say is that it has to be respected as a minimum guarantee. And a guarantee doesn't mean that there might be terms and conditions that can be changed. A guarantee, as we all know, is a guarantee. When you buy something with a guarantee, you're entitled to rely upon it. And so the Judges have to follow the Statute upon which their jurisdiction is based. Their jurisdiction requires them to acknowledge certain principles and rights within that Statute. And what they do is they may balance the right of a victim or a witness with the right of an accused in relation to issues of protection, whether the accused will know the names of witnesses or not, in a practical dimension, but this is a right that is fundamentally enshrined within the principles that enable a trial to be fair. Therefore --

JUDGE MERON: I am advised that you have five more minutes, taking ²³ into account also the exchanges on the questions.

MR. KAY: I understand that, Mr. President. And there I have dealt with the argument concerning overarching rights and yielding rights. And indeed the Court will remember the quote that we used from Mr. Dworkin, taking rights seriously. To enshrine individual rights is meaningless unless the Court is willing to give up what marginal benefit it would receive from overriding these rights when they prove inconvenient.

We notice the Prosecution tried to assert that we had misquoted Mr. Dworkin or we were misleading in our application of his principles. For such a heinous allegation, I will let the Court into a secret: Mr. Dworkin was sent our paper for approval and our quoting from his textbook, and he very rapidly responded in approval to our citement of his text and left it to us whether we revealed that information or not. In view of the allegation, I think I should reveal it. This case is very different from obstructionist behaviour and those cases which come from other jurisdictions where an accused may have counsel imposed on him to perform certain functions. The cases involving sexual offences from the United Kingdom, common law jurisdictions, simply do not fill the bill that we have here.

The other cases in international jurisprudence. Barayagwiza, Seselj, Norman do not fit what we have here. It was the Trial Chamber's finding - and this cannot, we say, entitle this Appeals Chamber to review the matter in any other way - was that this was a unique case that none had found in the previous annals or within other sources of legal ^{24 BLANK PAGE 25} authority, and it may well be because, in relation to our first discretionary ground, that sick people don't stand trial, or sick people who represent themselves don't stand trial. It may be that that is one of the reasons.

However it is, we raise as an error in the discretion of the Trial Chamber that they didn't seek to take this matter any further, to look at whether he was fit enough to stand trial. If on the one hand you're saying he's unfit to represent himself and you're saying that you're exercising your discretion reasonably and appropriately, we would submit that a Trial Chamber should consider the larger issue if they do have that as a valid consideration. Our submission is that the overriding approach of the Trial Chamber on this issue was one of expediency and the need to complete the trial, time limits having been set in place of 150 days of Defence evidence and completion by the 15th of October - I think that was the date - 2005, requiring them to consider this issue from that perspective rather than the importance of his rights being respected and his case being put.

We've dealt with the issue of the medical report and the opening statement that was made.

One of our other grounds which concerns the revised working regime, again that's connected with having let him open his case for two days. If this was to be such a fundamental issue before them, they should have considered a revised working regime or hours. What is more important, the understanding of the Defence case and its appropriate presentation or the completion of the case? ²⁶ All the problems predicted by us in relation to this ruling, our ground 2(E) -- which has been set out in ground 2(E) have come to fruition. Witnesses don't cooperate. The accused asserts I'm not putting his appropriate Defence, I'm not putting his case. Once what was a cordial relationship when I was an amicus and sat over in that part of the court is no longer thus and relations have been soured and there is an antagonism which is not in the interests of justice. The basis of what is happening now is that there is a conflict between the assigned counsel and the accused, which makes it less likely that any meaningful instructions, and given the nature of this accused and his strong assertion of his independent right to represent himself, it is obvious that there will be no further cordiality and no opportunity for me to obtain the workings or meanings of his Defence. Assigned counsel in those circumstances cannot effectively and properly put a case.

I believe, Mr. President, you raised the proposition of what else should happen. It does depend upon what rulings are made, but I can tell the Court that, as assigned counsel, I feel that there is such a conflict between the accused and myself and my team that we are ineffective in this trial, and we are unable to say that we are acting in the best interests of justice. The high number of refusals of witnesses to cooperate, the antagonism of those witnesses towards me, their disapproval of me, the accusation that I'm really prosecuting him rather than defending him; all those issues are completely unsatisfactory for a counsel to stand here and say he is defending the accused. ²⁷ If there is to be this order maintained, the responsibility for the Defence should not be put on someone who is unable to deal with it. The responsibility should be put on the accused whether he cooperates or appoints his own counsel. The responsibility should go to the Judges to appoint counsel for them to have evidence heard that they may be interested in. But to window dress this case and say the responsibility is mine puts me in an ethical and professional difficulty that I have tried to solve with my team over the last six weeks, all of whom have worked extremely hard, but we have been unable, in our judgement, to say that we are meaningfully putting forward this accused's Defence. We have tried. We have attempted to speak to him. We have attempted to have relations through liaison, but all that now is off limits, and we are unable to properly perform our function.

I think that's the time.

JUDGE MERON: I would like to turn to my colleagues, whether they would like to ask any questions. Judge Guney.

JUDGE GUNEY: Mr. Kay, in the framework of the modified working regime, the stand-by counsel issue was raised. I have two questions on this issue. Would you please tell me, what are the indications that Mr. Milosevic will cooperate with stand-by counsel if such counsel is assigned more than he intends to with the assigned counsel? This is the first question.

The second one, if there is no such indication, and then I would like to know your personal opinion here, what is the probability that the accused will cooperate with the stand-by counsel? To what extent is it ²⁸ workable? Thank you.

MR. KAY: I'm grateful for those questions as they're important matters raised in the relief sought as well as the argument, Your Honour. This document was filed on the 29th of September. In the 23 days that have passed, a lot of water has flown under the bridge in this trial. I suggest that the accused answers the question of whether he will cooperate with a stand-by counsel.

In relation to my own position, I feel that there has been a fundamental breach in what once was a cordial and informal relationship as an amicus which makes it very difficult for me, or Ms. Higgins, for that matter, to continue in such a role. It may be that a differently appointed person might be able to achieve that.

For my own part, I can only base myself on the experience that I have been through, which is one of extreme difficulty despite the intensive labours of assigned counsel Defence team to put this case together in a meaningful way.

JUDGE MERON: Judge Mumba.

JUDGE MUMBA: Thank you, Mr. President. I wanted to ask, Mr. Kay, the imposition of counsel, from what you have submitted, appears to be distressing to the accused and that, in my view, simply contributes to poor health. Perhaps that is a question for the doctors to answer if he had the opportunity to have another medical examination for that.

MR. KAY: Yes.

JUDGE MUMBA: You have very well explained the problem that is ²⁹ going on, and if an accused cannot give instructions, how can counsel perform, examine witnesses? On what basis?

MR. KAY: I'm grateful to Your Honour, both very important questions. On the first one, we've always believed that this issue would contribute to the stress of the accused because he feels so passionately about it. And I have observed that passion in this courtroom and know of it, and it plainly is, again, another example of replacing one risk with another, which is how we framed it in the document that we filed. He himself will be able to address you on that.

The other question again goes fundamentally to the issue of the Defence case. Upon being appointed assigned counsel, because of our previous experience in this trial which extended for three years, our knowledge of the Prosecution case, we believed it was appropriate to see if -- if it could work in the interests of justice. If Mr. Milosevic wanted it, if it could work in a meaningful way. And we attempted to put the case together and call witnesses in that kind of spirit. Your Honour's observations are perfectly right, if I may say so. When you have no instructions, you are nothing. You are but a cipher. You are guessing. And it doesn't help the administration of justice. It might even be wasteful for the administration of justice. And it imposes a personal responsibility that causes great difficulty. Again because we're working as a team - going back to Your Honour Judge Guney's point - the experience that we have so far received takes us to the point of view that we don't think stand-by counsel would work now. It may be that on the 2nd of September, when it -- there was a different ^{30 BLANK PAGE 31} dynamic in the air, that such an arrangement could have worked for the Defence. But the order, we submit, was in the extreme end of the orders that could possibly have been made. This was not taken in stages of let's move from amicus to stand-by counsel, continuous spirit of cooperation, and maybe if the accused was ill he would say, "Deal with this witness," or, "Will you lighten the burden by helping me in relation to particular matters."

The order that was made at the extreme end of the scale, we feel, has burnt various bridges. And in our submission, as far as counsel who everyone believed was best placed to tackle this issue, except for his own legal advisors or his associates, we feel that the matter - again, it's a matter for him to say or not - has with it great difficulties. And in terms of a solution, it may be that he undertakes his own consequences rather than us wasting resources believing, and people kidding themselves, making believe that what is happening here is a proper Defence. The experience has been attempted and right from the start we wanted to show willing, but we have driven ourselves into the sand. I hope that answered the question, albeit with further advice.

JUDGE MERON: Mr. Kay, you spoke of a stand-by counsel, but it appears from the exchange between my distinguished colleague Judge Guney and yourself there is really no reason to expect that Mr. Milosevic would be more cooperative with a stand-by counsel than he would be with an assigned counsel. So if you could contribute some further thought about the remedies that should be applied to this case or considered.

MR. KAY: If a decision is going to be made, those who are parties ³² to the process should take the responsibility themselves. He should either appoint his own counsel or not; it's up to him. He participates or not; it is up to him. The Court, instead of putting someone here as the unfortunate in the middle, if they have issues of concern concerning culpability, should appoint their own counsel and hear evidence upon matters. But it's a question of people taking responsibility for themselves in relation to the conduct of the trial. Putting it on us, we feel, is a fiction that has shown to be inoperable. Let Mr. Milosevic have his rights back and take the consequences for himself and appoint his own counsel if he wishes.

JUDGE MERON: What would you say if Mr. Milosevic's health would have allowed him to be in Court, say, one day a week?

MR. KAY: Sorry, My Lord, I was ...

JUDGE MERON: Is there a point where justice would require some kind of action which would go beyond the stand-by counsel on the assumption that Mr. Milosevic does not agree to cooperate? We do have interests of justice to consider in a broad sense here.

MR. KAY: I don't dispute that, and there is a difficulty in taking theoretical positions when you don't have a medical report before you saying that would happen. That was never sought. That's why we say there are errors of discretion. It may be that they would have said two and a half days a week, and that may be something that could have worked. There's only 150 days of the Defence case, and there's a period that was set out in the Scheduling Order, I think it's the 15th of October, I can't remember off the top of my head with so many dates that go around, but at ³³ some stage in October 2005.

If -- at the end of the day, if a trial and a Defence on a subject matter and issue as important as this, spanning three massive indictments, it has to be said this is the biggest criminal case ever in the world, if it has to take that long, it has to take that long if justice requires it. You have to draw a balance whether he's fit enough to stand trial in the first place.

JUDGE MERON: But if he's fit enough to stand trial, Mr. Kay, but he would be fit enough to represent himself, which is a much added degree of tension and stress, one day a week, half day a week, what would you say?

MR. KAY: It's one of those issues that would have to be balanced. But we don't know that that is the case. It may be well that it's not the case. And it doesn't --

JUDGE MERON: Three days a week was already causing considerable problems.

MR. KAY: I have to say, having been involved in this trial, that all the work that has to go gone, you couldn't do more than three days a week. We have statements coming in under Rule 89(F) that are substantial. All have to be read. The actual time in court does not reflect the time out of court. And to view the court hours as being the way this case should be approached as to its effectiveness is probably, in our respectful submission, not the right way to go about it, because the amount of evidence that we have achieved in that period of time is considerable. It is of an extent that can only be imagined. ³⁴ Take into account the fact the million documents of Rule 68 material. That has to be gone through. There is so much work. The pleadings, the filings. You could not work more than three days a week on this -- this case. And I'm someone who's had to go through it. I've had to take periods out of court to do filings. The Defence is not properly resourced to do this case at its highest level. It has to be said. The 20 experts the Prosecution called in their case, some of them producing 15 files, ten files; more than that. Thirty files one of them produced, Dr. Baccard. That is material that takes time and resources to go through. The standard allocation for experts in a case at the Tribunal, for all your experts, is 100 hours.

This Court is far better off putting the responsibility of this case with the accused. He was prepared to do it and his team prepared to undertake it without using the resources of the Tribunal. The legal aid department have told me in this case they will exceed the hundred hours for the total of Defence experts, but will I put a figure on it? I simply can't put a figure on it. I've had an analysis done of the numbers of files, the numbers of witnesses. The resource implication for us doing an effective trial has to be considered, because people are not coming to us willingly. People are not offering themselves as expert witnesses for free. It's not like that, and it is simply beyond the management of an imposed and not-wanted Defence team. It can only be managed by him and his support, and give them the responsibility. This Tribunal would be far better off allocating the responsibility where it should lie rather than with others. ³⁵

JUDGE MERON: Thank you very much, Mr. Kay. It is 16 minutes past 10 now. Normally I would have given the floor now to Mr. Milosevic for his 40 minutes. It might be more convenient, however, to have a short break now. So shall we say that we will adjourn for 20 minutes.

--- Recess taken at 10.17 a.m.

--- On resuming at 10.39 a.m.

JUDGE MERON: Mr. Milosevic, before you begin your case, I would like to present a request to you. You have heard Mr. Kay's arguments before us this morning, and you have heard that he referred a number of questions to you. It would help the Court if during your presentation you would address in particular the question of how you would cooperate with a stand-by counsel if one were to be assigned to you. Also, what, in your opinion, would be for the Court to meet both the requirement of a fair trial and the requirement of an expeditious trial at the same time. Anything you could tell us about your practical suggestions for remedying the problems that have arisen would be welcome.

Mr. Milosevic, you now have the floor for 40 minutes.

THE APPELLANT: [Interpretation] Thank you, Mr. Meron. I hope that I will not take up all of the 40 minutes.

First of all, I would like to say that in relation to the decision to take away my right to self-representation, in my deep conviction the reasons for that are not health reasons.

JUDGE MERON: Just one second, Mr. Milosevic. I did not adjust it. Yes, I'm sorry. Please go on. ^{36 BLANK PAGE 37}

THE APPELLANT: [Interpretation] In my deep conviction concerning this decision to take away my right to represent myself, this was not prompted by health reasons nor legal reasons but by political reasons. Health reasons were taken exclusively as an excuse or pretext. I would like to turn your attention to the fact that there was a campaign conducted not to permit me to speak. On the 29th of August, the drafters of your Statute, Michael Scharf published in the Washington Post an article as part of this campaign in which he said, amongst other things -- I'm not going to quote the entire article, I would just like to point to a few things or excepts from it.

"[In English] At the start of the trial in February 2002, the original presiding judge, Britain's Richard May, ruled that 'under international law, the defendant has a right to counsel but he also has a right not to have counsel.' Virtually everything that has gone wrong with the Milosevic trial can be traced back to that erroneous ruling." As part of that campaign, therefore, things set out from insisting that the Chamber, which was presided by Judge May, wrongly decided to enable me to speak, and then this is explained by stating: "[In English] By acting as his own counsel, Milosevic was able to begin the trial with an 18-hour long opening argument, which included Hollywood-quality video and slide-show presentations showing the destruction wrought by the 1999 NATO bombing campaign."

That is what disturbed all those who do not wish to hear the truth from this place, because for three years now, the other side has been explaining crimes that I did not commit, ascribing to me intentions which ³⁸ I never had. We're talking about legal alchemy here, which is jeopardised by the possibility that truth be spoken here and that what really happened be talked about here.

In his article, Scharf explains that or provides an explanation from which it can be seen that we're not talking about law here but politics.

I will quote just one more excerpt: "[In English] In creating the Yugoslavia tribunal statute, the UN Security Council set three objectives: First, to educate the Serbian people, who were long misled by Milosevic propaganda, about the acts of aggression, war crimes and crimes against humanity committed by his regime ..."

[Interpretation] As you can see, he is citing a political reason which only a twisted mind can use in view of the fact that there was no war in Serbia and that Serbia was the only one that maintained the structure of population as it was before and that there was no discrimination at all. This is part of the propaganda which is being affirmed here.

Secondly, "[In English] to facilitate national reconciliation by pinning prime responsibility on Milosevic and other top leaders and disclosing the way in which the Milosevic regime had induced ordinary Serbs to commit atrocities; and third, to promote political catharsis while enabling Serbia's newly elected leaders to distance themselves from the repressive policies of the past. May's decision to allow Milosevic to represent himself has seriously undercut these aims." [Interpretation] He also explains that this is also very wrong ³⁹ because this trial is being followed because the majority of the citizens in Serbia give their support to me, which is not a surprise, because everybody had the opportunity to hear what is being said here. For example, this statement of mine of the 31st of August and the 1st of September was published in newspapers with the broadest circulation. It was also broadcast on television. It was published in hundreds of thousands of copies. So I can expose myself to the trial of the -- or to the scrutiny of the public, whereas the other side cannot. And that is the main reason why it is not being permitted here, the truth, or arguments be brought out in favour of the truth and that this truth be proved by facts.

I would like to also draw your attention, gentlemen, because you are all experts in the legal profession, that in relation to this question of assigning counsel, several scores of --

JUDGE MERON: Just one small correction. Mr. Michael Scharf, Professor Scharf, whom I know and who is known to us, has not been one of the drafters of the Statute. He was not -- the Statute was drafted in the United Nations Secretariat. He was not part of that. So if I understood you correctly that you suggested that he was one of the drafters, he was not.

THE APPELLANT: [Interpretation] Very well, Mr. Meron. In any case, he was an active participant in what is going on here. In relation to this idea of denying me my right, taking away my right, about 100 prominent legal scholars, professors, experts in international and criminal law from Serbia, Russia, Greece, Italy, Ireland, Germany, the ⁴⁰ United States, Canada, India, Belgium, Denmark, Bulgaria, Hungary, Netherlands, Czechoslovakia, Great Britain, France, submitted a petition to the General Secretary and to the United Nations Security Council. You probably did not pay attention to this, but many arguments were stated there against this decision which was adopted by the Trial Chamber. They say that this imposition of counsel, "[In English] This apparently punitive measure is contrary to international law, incompatible with the adversarial system of criminal justice adopted by the Security Council in Resolution 808, and ignores the Court's obligation to provide adequate medical care and provisional release to the defendant. ... The ICTY has ignored repeated requests for provisional release, to which everyone presumed innocent is entitled, has imposed unrealistically short preparation periods ..."

[Interpretation] I warned you, Mr. Meron, the last time that we had a discussion here and when we were talking about me being granted three months for preparations compared to several years that the other side had, I drew your attention specifically to the existing decision of doctors that I can only work for three days a week and that that time is very short. At the time, you said that you would review all of these things. There has been no subsequent review of these issues. I would also like to remind you that in the decision of the Appeals Chamber of the 18th of April, 2002, comprising of Claude Jorda, David Hunt, Mehmet Guney, Fausto Pocar and Theodor Meron - that's what it states here on the cover page - in paragraph 27 it was stated since the reasons for decision on Prosecution interlocutory appeal from refusal to ⁴¹ order joinder was being discussed at the time, "[In English] As has been shown to be necessary in all long trials before this Tribunal, the Trial Chamber will from time to time have to take a break in the hearing of evidence to enable the parties to marshal their forces and, if need be, to unrepresented accused to rest from the work involved." [Interpretation] This was not respected either. And in connection with that, I would like to say that when the three-day work rule was being respected, these three workdays are not only days spent in court but three workdays in general. This was not taken into account. But there were no problems at the time. I will come back to that later. In the petition, it says: "[In English] The envisaged imposition of counsel constitutes an egregious violation of internationally recognised judicial rights, and will serve to only aggravate Mr. Milosevic's life-threatening illness and will further discredit these proceedings.

"The fundamental, minimum rights provided to a defendant under the Rome Statute of the International Criminal Court, as well as under the Statutes of the Internation Criminal Tribunals for Rwanda and Yugoslavia include the right to defend oneself in person."

[Interpretation] I will skip over. "[In English] As stated by the US Supreme Court, with respect to the Sixth Amendment of the Bill of Rights, which bears a striking similarity to Article 21 of the ICTY Statute." [Interpretation] And then there is a quote from the Feratta versus California case, from which they -- "[In English] It speaks of the 'assistance' of counsel, and an assistant, however expert, is still an ^{42 BLANK PAGE 43} assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defence tools guaranteed by the Amendment, shall be an aid to a willing defendant - not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master, and the right to make a defence is stripped of the personal character upon which the Amendment exists." [Interpretation] And then it goes on to say: "[In English] The essence of the right to represent oneself is defeated when the right to counsel becomes an obligation. As stated in Feratta, supra: "An unwanted counsel 'represents' the defendant only through a tenuous and unacceptable legal fiction."

[Interpretation] Then Feratta case. There's another quote from that case. "[In English] In the long history of British criminal jurisprudence, there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceedings. The Tribunal was the Star Chamber. That curious institution, which flourished in the late 16th and early 17th centuries, was of mixed executive and judicial character and characteristically departed from common law traditions. For those reasons, and because it specialised in trying 'political' offences, the Star Chamber has for centuries symbolised disregard of basic individual rights."

[Interpretation] Gentlemen, we are facing a practice here which, as you can see, is being dealt with in a way which is not a -- which does ⁴⁴ not serve as a compliment. In this case, it says: "[In English] Imposition of counsel, even 'standby counsel', as appears to be presently envisaged by the ICTY, will not alleviate any of the difficulties facing the process: it will not treat, much less cure, Slobodan Milosevic's malignant hypertension; it will not provide the defendant with the time and conditions to prepare his case; it will not redress the gross imbalance in the resources accorded the Prosecutor and the Defence," et cetera.

"If Slobodan Milosevic's medical condition does not permit him to attend the proceedings, and he does not waive his right to be present, the ICTY does not have the jurisdiction to hold hearings in his absence. Adjournments will continue as long as measures are not taken to treat Mr. Milosevic's malignant hypertension, a condition that cannot be treated by further violating his rights, threatening to remove him from the process, or by transferring his Defence to a complete stranger. "By imposing counsel, the ICTY would not only violate his right to self-representation, but his right to present relevant evidence demonstrating the repeated violations of Yugoslavia's sovereignty over a decade.

"The right to defend oneself in person is at the heart of the International Covenant for Civil and Political Rights. The United Nations should not tolerate these continuing violations of international law in the name of expediency. Using a detained person's inappropriately treated illness as an excuse to infringe upon his rights and silence him and embark on a 'radical reform' of the proceedings - as the Chamber is now ⁴⁵ considering, by changing the rules in the mid-trial, and to the defendant's detriment- is a perversion of both the letter and the spirit of international law."

[Interpretation] That is about 100 legal scholars and professionals said on this matter. I mentioned them before. I would --

JUDGE MERON: Excuse me, Mr. Milosevic. When you read the English text, please go somewhat slower to help the interpreters. They had problems in keeping up with your speed on that. Thank you.

THE APPELLANT: [Interpretation] I have already read everything, and I hope that they were able to follow.

Mr. Meron, we are talking here about the cogent norms of international law, ius cogens, imperative norms which do not allow a restrictive interpretation and which in my deep conviction and according to the conviction of many lawyers throughout the world say that I cannot be denied of my right to represent myself. Therefore, the fact that you question my surprise at all that the Trial Chamber could have adopted such a decision at all is something that does not surprise me but astonishes even many people throughout the world, especially when we keep in mind that we're talking here about the denial of the minimum rights which I should enjoy here.

So I would like to be very brief. I would like for my right to be restored to me.

As far as arguments that were utilised which say that because of my hypertension many sittings had to be suspended, I would like to say ⁴⁶ that it is my deep conviction that the doctors on this matter have also been manipulated, because some elements were stated in a context in which they cannot be considered to hold.

As you can see here, I have a letter from Dr. van Dijkman to the Detention Unit physician, Dr. Falke, where he says -- this letter is dated on the 10th of June, 2004, and it says that on the 9th and 10th of June I was monitored for 24 hours, my blood pressure was monitored for 24 hours, and it explains "[In English] [Previous translation continues] ... blood pressure during daytime 164/103." Et cetera.

[Interpretation] And he goes on to say, "I do not consider the blood pressure to be so high -- [In English] [Previous translation continues] ... cease his activities."

[Interpretation] Therefore, when it was high, he believed it did not justify a cessation of my activities. On the 26th of July, the date when I was examined the last time in order to agree in the future with Dr. Tavernier's findings, my pressure was 150/95. Therefore, it was better. And then when it was better, it served as a basis for concluding that I was medically unfit to defend myself.

And furthermore, they manipulated the information about a loss of ten days, allegedly because of my health situation. And you will agree, gentlemen, that when this piece of information is used, it is in relation to days when my blood pressure was high. That's what it seems. However, that is not accurate. I have an official document stamped and signed by the authorised officer of the Detention Unit, the only one who is in charge of medical records, which states in view of the fact that on ⁴⁷ several occasions I had a very severe case of flu with high fever, and it says "Dates of flu." In 2001, it was one week. In 2002, it was one week. In early 2003, it was ten days. In May 2003, two weeks. And finally in 2004, in February, two weeks. In total, that amounts to six and a half weeks of flu involving high fever in various periods. What happened then, gentlemen, then back in February 2004, when I was running a high fever and having flu and was bedridden, I received notification that the appeal -- that the Prosecution case had been completed and that I was to prepare my list of witnesses. I therefore asked the liaison officer from the Registry, who is sitting here, whether, being ill, I was allowed to have an extension of that deadline because the task involves a huge amount of work. In those six and a half weeks, I was supposed to prepare a list of witnesses and was not able to start immediately.

I was informed by a Trial Chamber, through their legal assistant or whatever they call it, that the deadline cannot be moved. Therefore, I practically had to work from my bed at a very high intensity and to work very hard to comply with the deadline and submit that list within the six weeks given me from the time when I was informed of the completion of the Prosecution case.

That is what caused stress, shortage of sleep, and other problems. And this complete disregard for the rule that I was allowed to work for only three days a week drove my tension and blood pressure up. In other words, it was the Trial Chamber who caused it with their decision and the fact that they set unreasonable deadlines. And then the resulting ^{48 BLANK PAGE 49} problems were used as an excuse to impose counsel on me with the explanation that I was unable to handle the preparations required myself. That is what happened.

I can give you this paper which shows exactly how many weeks were in issue, with appropriate dates and signatures. The loss of days caused by this was completely unrelated to the problems I was experiencing. It is, therefore, abundantly clear that this is a manipulation of findings and facts.

It is, as a consequence, abundantly clear that all talk of obstructionism is malicious, because if you say that about somebody who spent 300 days examining the witnesses of the other side, calling him an obstructionist, which he had never been in any of the 300 days of dealing with the case of the opposing side. It is nonsense, to say the least. Even Mr. Nice putting forward his arguments before the Trial Chamber, trying to deny me an extension, said that I was working very efficiently and did not need an extension of the deadline.

Therefore, in my then-health situation, I experienced additional pressure which caused a deterioration of my health, which was then used as a pretext for assigning counsel on me.

When I did not have any other health problems, I worked quite efficiently indeed, except for the times when I had flu with high fever, which nobody is immune from, and nobody can guarantee that it would not happen to them.

You asked me a number of questions that I will attempt to answer. What is the best solution? The best and the only solution, in my opinion, ⁵⁰ is for you to give me back my rights. Your stand-by counsel is of no interest to me whatsoever.

Mr. Kay used to be an amicus curiae. He, as well as his colleague, upon leave of the Trial Chamber, put questions to witnesses when he deemed fit. As far as I am concerned, I have no objection to such practice at all. As far as I'm concerned, in that capacity he can continue if you think that necessary. He can continue to put questions to witnesses or perform any other tasks. But it is indubitable that the only solution, the only one I see as just, fair, logical and reasonable is to give me back my right to represent myself, to call witnesses, to examine them, and to lead evidence in my Defence case.

That amounts, practically, to the guarantees I enjoy under every international covenant, agreement, treaty, and finally your own Statute. And I cannot agree to anything less because that is my principled position, one from which I do not intend to retreat. So much, Mr. Meron. Thank you for your attention.

JUDGE MERON: Thank you, Mr. Milosevic. Mr. Milosevic, what would you suggest to the Court? How should it act if you would have to reduce your presence in the courtroom even beyond the three days that you have been able to cope with in the past?

Imagine for a moment that you could be in the court, bearing also -- taking into account also the time you would need in the detention centre to prepare, only one day a week. Would you -- do you believe that the Court can go on if the situation would arise in that context? Do give us some practical suggestions to try and, in fairness, to remedy the ⁵¹ situation that has arisen.

THE APPELLANT: [Interpretation] Mr. Meron, your question is completely logical. I believe, however, that one should take into account the history of the accumulation of the present problems. Namely, several times - and this is known to everybody sitting here and it can be seen from the transcript - at the moment when this so-called trial began with charges from the Kosovo indictments, indictments on Croatia and Bosnia were issued. At that time, I received over half a million pages of material from the other side in connection with the charges raised then. On several occasions, I asked them, "When do you gentlemen suppose that I can read this? Will you give me time to review this material, to familiarise myself with it and to respond?" The answer I constantly received was that the Trial Chamber would consider it. And finally we ended up in this situation where I have not been given time to talk to my potential witnesses. In fact, I talked to as many witnesses as I had time to talk with. And during the summer recess and preparation, I was allowed to receive witnesses three days a week. I assume you know that the opposite side spends sometimes several days speaking to one witness. I speak to one witness a day, sometimes two witnesses per day. I cannot be any more expedient than that. I believe, therefore, you should bear in mind that if it is true, and it is written in para 10 of the reasoned decision of the Trial Chamber on the assignment of counsel, since on the 30th of September it heard the arguments of sides to the proceedings, the Trial Chamber made its decision on the basis of the medical report concerning the accused's health that ⁵² the Chamber would sit three days each week.

That decision was made back then, and I believe that coupled with observation of this rule, a three-day work rule for the courtroom, and in view of the fact that I had not been given the opportunity in a timely manner to talk to my witnesses, a compromise is being made now between this and the decision made as a result. You should see what is fair in this situation. I believe that we can keep up the dynamics of three workdays per week with the proviso that weeks off should be taken occasionally so that I can proof witnesses I intend to call. And that would be a perfectly reasonable timetable enabling us to conduct these proceedings in a perfectly normal manner, achieving all that we have to achieve.

Those are my practical suggestions.

JUDGE MERON: Thank you, Mr. Milosevic. Of course, some of the difficulties that you have alluded to in terms of pressure on you, in terms of tension, are a result of the fact that you chose not to have a counsel. You have your legal advisors. Had you named them as your counsel, they would have borne some of the burden that you -- that you took upon yourself. And from the perspective of the Court, shouldn't a person accept the consequences of his decision? You chose to go this way, and you made things so much more difficult for yourself. Mr. Milosevic.

THE APPELLANT: [Interpretation] Mr. Meron, in support and in favour of Mr. Kay, who very correctly put forward his position, because I really have nothing personal against him, and he is doubtlessly a very ⁵³ capable lawyer, nevertheless, no lawyer, Mr. Kay or any other lawyer, is able to replace me in this job. It is simply because of the nature of these charges.

This is a political trial. What is at issue here is not at all whether I committed a crime. What is at issue is that certain intentions are ascribed to me from which consequences are later derived that are beyond the expertise of any conceivable lawyer.

The point here is that the truth about the events in the former Yugoslavia has to be told here. It is that which is at issue, not the procedural questions, because I'm not sitting here because I was accused of a specific crime. I'm sitting here because I am accused of conducting a policy against the interests of this or another party. The nature of the proceedings here is such that a lawyer cannot deal with it. In fact, even that is not the issue. The issue is whether I have the right to represent myself under the Statute, and the Statute says I do.

JUDGE MERON: Thank you, Mr. Milosevic. We will in a moment turn to the Prosecutor. Let me now just make one comment. I really believe, and I believe that all my colleagues very strongly believe that this trial is not a political trial. It is a legal trial under human rights and due process to determine, under international law and the Statute, whether -- to determine whether you are guilty beyond a reasonable doubt or you are not. And we would not have been conducting those proceedings this way if we were not convinced that this is really not only a legal trial, but I believe it is a model of a fair trial.

So now I will -- thank you for your argument, Mr. Milosevic. ⁵⁴ I will now turn to the Prosecutor to make -- to use his or her 40 minutes.

MR. NICE: Your Honour, the last few observations of the accused which include the suggestion the Judges of the Trial Chamber acted in a quite improper way, relying on health reasons as a pretext, that the doctors have themselves been manipulated by outside forces to bring in medical opinions that are inaccurate, that this is a political trial, all show that this man is not capable now of presenting a case before what is manifestly a straightforward criminal court trying him for criminal offences.

We know from the case of Feratta, of course, that to a degree those who represent themselves must be allowed to make bad forensic decisions and that it cannot always be the case that sensible objectivity of professionals will be interposed between an unwise litigant and his Judges. But in this case, for a range of reasons, that must now happen. And indeed the Court will, I venture to suggest, think long and hard before, in light of what he has done today, allowing him to carry on presenting himself his case before Judges whom he has quite wickedly impugned in the way he has done.

Let me go back to what Mr. May -- Mr. Kay said, I beg your pardon, where he suggested at one stage that there had been a campaign to deny this accused his right of representation. These things are easily said and then broadcast and may be the subject of misunderstanding. He described it as a concerted attack.

It is quite true that from an early stage it was the Prosecution's ⁵⁵ position that counsel should represent this accused, but let's remember more precisely what the Prosecution actually suggested and why. The first representation that he should be assisted by counsel came as long ago as the 30th of August, 2001, at the instigation, I have no doubt, of the Prosecutor but through the mouth of Mr. Ryneveld. The suggestion was made that not only should an amicus be appointed, but because of the technical difficulties of running a case, there could be advantage in assigning counsel to assist the accused, and it was expressed in those terms. Not to be imposed and to run his case. Well, that was rejected by Judge Robinson, and the matter then was next turned to in detail on the 8th of November of 2002. By this stage, the recurring timetable interruptions caused by the accused's ill health were causing concerns, and so in a filing on the future conduct of the case in light of the accused's health and in light of the length and complexity of the case, representations were made that counsel should be assigned to him, but again it was not suggested that counsel should be imposed to run the case fully for him. Not at all. He wasn't going to be deprived of his public appearances. Not at all.

What we suggested at paragraph 21 of that filing, and I'll take it shortly, was that there would remain scope for the accused to participate but that the time had come, in light of the medical problems that the accused was facing, for the Chamber to further consider the assignment of counsel to help him in the exercise of running his case. That filing also, let it be remembered, focused heavily on ways that we could assist the Court and indeed the accused in getting around ⁵⁶ his medical problems in getting evidence in deposition and not having to send witnesses back to the former Yugoslavia and matters of that sort. It was a constructive approach of which assignment of counsel to this accused was part of the proposed remedy.

Now, we move from that date, 2002. The next matter when -- the next occasion when this was raised was in September 2003, again because of the recurring problems of health. And on that occasion, again we didn't suggest complete imposition of counsel. We drew to the Trial Chamber's attention, at paragraph 23, that there could be degrees of assistance given to accused who were facing difficulties, those degrees varying according to the interests of justice and their demands. And we made proposals about the timetable, and indeed at paragraph 28 said this: "The Prosecution considers that it may not be appropriate at this stage to impose counsel upon the accused in such a way as to deprive him of his personal participation in the presentation of his defence. This remains an option to consider."

We went on to say: "The preferred solution at this stage may be to assign counsel to act in tandem with the accused but in such a way as to reduce his daily workload." And then we made some specific suggestions.

Now, of the 66 days, I think it's calculated by the Trial Chamber and not challenged, that this trial has had to abandon sitting days, potential sitting days, because of the ill health of this accused, they are grouped in five separate occasions, on the analysis of the Trial Chamber, happening between the conclusion of the Prosecution's case and ⁵⁷ restart of the Defence case. Any Trial Chamber encountering that regularity of disruptive ill health would be gravely concerned about the future conduct of the trial, and it sought our representations on the matter, as indeed it sought representations from the accused and from Mr. Kay in his then-role as amicus.

And lest there be any misunderstanding in the public - I know there isn't in the Court - as to what we actually urged on the Trial Chamber then when we said the time had come for counsel to be imposed, again we did not urge full imposition. We urged that counsel would have to be imposed to safeguard the trial but that, of course, the accused could take such part in the proceedings as his health permitted and as the Trial Chamber might decide. And again lest there be any doubt about it, our proposals allowed for his taking part in the presentation of his opening, in the examination and re-examination of witnesses. Those proposals are fully articulated in the pleading itself, as the Chamber will know, and indeed in an annex to it. And the law supporting our position is fully articulated in a very detailed attachment A drafted by Christina Moeller of the Office of the Prosecutor, which I of course adopt, it not being either desirable, necessary, and there being no time for me to go through the law in any great detail. So that from first to last this Prosecution has recognised the accused's desire to make presentation himself and has seen the wisdom of his being assisted by counsel, the level of assistance of course increasing over time given the way his health has deteriorated over time. In the event the Trial Chamber's decision, including indeed its ⁵⁸ decision on modalities is one that we entirely support, bearing in mind, and this is again something that the accused might want to have in mind, bearing in mind that although we say modalities should not be subject to specific appellate decision here for reasons we've advanced in our filings, nevertheless, modalities can change if, for example, the accused were to show himself, by asking questions supplementary to those asked by assigned counsel, to be behaving in a reasonable and rational way, and to be apparently fit enough to take on more of the burden. This would be a matter for the Trial Chamber in due course.

Thus, then, the true history of what the Prosecution has presented.

And I must just deal with a short point about the state of the medical evidence.

As I think Your Honour --

JUDGE MERON: If I -- before you go to medical evidence, are there any differences, then, between your submissions to the Trial Court and the order on modalities? Modalities are not before us, but since you mentioned that, I just wanted to clarify that point.

MR. NICE: Your Honour, I don't think there are -- no, I don't think there are any differences, but in any event, what I'm saying now is that if one looks to the future and were the accused to be cooperative and sensible - and in fact he hasn't been in his response to the Trial Chamber - and were his health to show a particular pattern that was not adverse, why, it would be open to him to apply for a change in modalities and it would be open to the Trial Chamber to reconsider it at a later stage. So ⁵⁹ that's all we say on that.

As for the present position, the modalities ordered by the Trial Chamber seem to us to be entirely appropriate.

JUDGE MERON: Thank you.

MR. NICE: Dealing with the medical evidence and the failure of the accused to adduce any medical evidence or indeed to advance any argument about the medical evidence in detail before the Trial Chamber, notwithstanding what he said here today, a couple of points, I think, are all that I need make.

First, the accused tells you that for some reason this case is a case that only he can run. There have been a number of occasions this morning when it may have gone through the mind of the Appeals Chamber, as of other lawyers around this court, that he makes it quite plain that this is a case that he cannot run properly. Had he had legal representation on the 5th of July when the issue was clearly flagged up that his medical condition was going to be considered, then he, as a lawyer, would have taken the appropriate steps. He chose to do nothing. It's just another example of why he needs a lawyer. But that he was on notice and that this Chamber can deal with him on the basis that he was on notice as to what was to come can be seen from the filing of my learned friend Mr. Kay of -- I think it's, if I've got it right, the 22nd of September. I will just check my reference to see that I have got it right. Paragraph 9. No, I haven't got it right, but I'll see if I can find it. Ms. Graham may be able to help me with this.

I've found it. It's the 29th of September filing and it's ⁶⁰ paragraph 9 of that, so it's the filing before this Court, where my learned friend says the following: On the 5th of July, 2004, a court hearing was held during which the accused made a request to be given one additional month before being required to present his case. During the hearing the amici curiae raised, one, the accused's fitness to present his Defence at this time, and two, his fitness to stand trial at all. The Trial Chamber considered at that stage that there was no evidence that the accused was not fit to stand trial but that there was evidence to suggest that the accused may not be fit to continue representing himself. The Chamber stated it would carry out a radical review of the trial process and the continuation of the trial in light of the health problems of the accused which are clearly chronic and recurrent based on the most recent report from the doctor.

So that's what happened on the 5th of July. And the accused can have been under no misapprehension from that date on and until the hearing before the Trial Chamber that his health was in issue, and indeed the order, the Scheduling Order that said he would make his opening address and then the question of imposition of counsel would be dealt with made it doubly clear.

But in addition to that, he had the filing from the Prosecution, the filing that advanced, as I say, the proposal of imposition of counsel in a measured way. And in that filing, which is a filing as early as, I think, the 26th of July - we weren't given very much time to deal with this and we put it in very swiftly - we not only identified the medical condition from which he was manifestly suffering and it's obvious ⁶¹ consequences for the trial timetable, but we drew to the Court's attention in a footnote that was, I think, then confidential and ex parte but has since become public, we drew to the Court's attention material that showed or started to show manipulation of the medical regime by this accused. Now, of course, dealing with that filing, my learned friend Mr. Kay says at that stage we didn't assert fully that his behaviour was obstructionist. Correct. And the Chamber may consider it correct for two reasons. First, at the time of that filing, we didn't have the latest medical reports which showed to the degree revealed all too clearly in the Trial Chamber's judgement that there had been manipulation of the medical regime by not taking medicines prescribed and by taking other medicines. So we didn't have that particular piece of material. Second, the Chamber may think that where an accused has been allowed to conduct himself in a certain way by a Trial Chamber and the licence given to him may, in the eyes of the Prosecution, be too much and he may have been allowed to get away with some degree of obstructionism, it is a somewhat sensitive issue to raise and you've got to be rather cautious before suggesting to a Trial Chamber that it hasn't got its particular handling of a particular accused right. So we've always been cautious about the way we expressed ourself in that particular -- on that particular topic.

And those two reasons explain why we expressed ourselves as being on the margins then of saying that his behaviour was obstructionist, whereas of course with the further medical evidence to hand, no such restraint was required on this. ⁶² And of course if the Chamber is satisfied that this accused, on the evidence - and it's not really challenged by my learned friend Mr. Kay - if it's satisfied on that evidence that there has been manipulation, why, then, it would be wholly inappropriate not to interpose between this accused and his Judges professional counsel who duties of conduct would be to the Court, even though his duties in respect of the case he advances -- or he or she advances would be entirely to the accused. It's another example of the things I referred to from the accused's presentation today, simply going to show that he has to be represented. And if I can deal very briefly with the additional grounds of appeal that Mr. Kay has sought to put aside. Our position is --

JUDGE MERON: Can I interrupt you for a moment.

MR. NICE: Of course.

JUDGE MERON: Before you --

THE INTERPRETER: Microphone, please.

JUDGE MERON: If I could interrupt you for a second before you go to those additional matters.

Regarding what you said about non-compliance by Mr. Milosevic with his treatment regime, his behaviour in court, et cetera, et cetera, these matters are potentially important, but they also strike me as something which classically would be in the purview of the Trial Court, not the Appeals Court. Could you explain why we should have a crack at that, or why isn't this --

MR. NICE: Certainly, yes, I'm happy to do that. Let me see how the best way to approach the problem should be. ⁶³ First, the medical issue, the medical health issue upon which the decision was founded is, in our submission, absolutely sufficient to justify the decision, supports it and this appeal should be rejected on that ground alone. And as I say, there has been no evidence brought that challenges the medical findings made by the doctors and then, in their judicial capacity, by the Trial Chamber Judges.

Second, it is not correct, as my learned friend Mr. Kay says, that the arguments in respect of the accused's behaviour generally and the accused's manipulation of the medical treatment regime were rejected or dismissed by the Trial Chamber. They simply weren't dealt with in detail in the judgement, as I read it, save to say that they recorded their concern at what they inferred from the latest medical records but said, I think, nothing by way of finding one way or another about the other aspects of behaviour.

Our position is that properly all these matters could be and arguably should have been viewed as a whole, as a collection of reasons justifying the imposition of counsel. Not because the medical one is insufficient but because if, in fact, these were reasons justifying the imposition of counsel or the assignment of counsel, then it was proper to be recorded then, once for all, in order that this matter may be determined once for all in this trial.

We have a concern that if the case continues on the present basis with assigned counsel and there is a change in the medical position of the accused - possible, I suppose. It appears to be irreversible but one never knows what is possible - or I suppose if the accused were suddenly ⁶⁴ to come clean and say, "Yes, I've been manipulating the medical regime all along, but that's not the basis upon which counsel has been assigned, I'm now going to behave myself, I'll take my medicine whenever I can, and you'll find I'm fit as a fiddle." He might say that. And then the Trial Chamber might say it was in a difficult position. Our argument is that everything, including his behaviour and manipulation, shows that he is an accused who simply has to be represented by counsel, and that's the reason why we bring it to Your Honours' attention. And we bring it to this Court knowing from the authorities of this Court and also from the other jurisdictions we've been able to review that arguments not either raised, but they were raised but not disposed of by a first instance decision-maker can be incorporated by an appellate decision-maker confirming or affirming the original decision but for further reasons. It doesn't have to deal with them, but it can. There's been some technical arguments raised by my learned friend Mr. Kay but I think they're not really in point, whereas many jurisdictions have the facility by a notice of contention or a respondent's notice, respectively in Australian and English legal systems, to put parties on notice that a decision is to be supported for other reasons, there is no such provision in this -- in the Rules of this particular Chamber, but there are cases, and in particular Jelisic, where it's clear that this is something that can be done. And indeed the practice in this Chamber is more generous to an appellant than, for example, I think the practice in England where a respondent's notice is the last filing, typically, at least the last formal and essential filing, ⁶⁵ and the appellant party doesn't get a right of reply. Well, here, of course, there is a regulated right of reply to a respondent's submission. So that my learned friend has not only been on notice of our points but has been able to put in a written filing dealing with them. But, Your Honour, we say that they are themselves very important matters, and I'm come to them in a second, if I may, and I'm afraid I forgot to look at the time I started so I've got to find out how much longer I've got. I will come to them in a second when I hope to deal with one of the points Her Honour Judge Mumba raised, but they are important matters, capable of being freestanding in their own right as justifying the imposition of counsel in a case like this. And of course, when I say "a case like this," I have in mind, as is the last two paragraphs -- as the last two paragraphs of our submission make clear, that this is simply a case of such scale that many people would say you would absolutely have to have counsel in any event, but that's just part of the general texture of the case.

And I suppose I shouldn't overlook the point which I know the Chamber will have in mind but it might be interesting for those also watching the proceedings who have a broader interest, that in the former Yugoslavia or I think the present Serbia, somebody on trial for any offence of gravity would have counsel imposed automatically in any event, and it would not be a subject of complaint in the very country from which this accused comes.

Now, I don't know if my earlier observations answer to the degree I can Your Honour's question about why we bring this matter to you, but ⁶⁶ there is legal reason for doing so because, in our submission, they actually do go together to make a composite, a mix, as we put it, in the Trial Chamber hearing of reasons to support the imposition of counsel with the practical possibility that I've referred to simply giving further support to that reasoning.

Now, I said I'd turn to a point raised by Her Honour Judge Mumba where she said this accused might find it distressing to have to deal with giving instructions to counsel imposed upon him. And there are two things I'd like to say, I think, about that.

First, the accused's answers to the President's, His Honour the President's questions about engaging his own counsel are no answers at all. There was no logic in them, no explanation in them. Of course a case like this can be and on any rational grounds should be presented by a lawyer bringing detachment, professional skills, and independence, and almost inevitably advancing, and one has to say this, a forensically stronger case than the admittedly political case that this accused is advancing.

But when Her Honour is concerned about the distress that would be caused to this accused by his having to deal with imposed counsel, I must ask this rhetorical question, but I hope it politely: Who is running this Court; the accused or the Judges who have been appointed to do so? Because what we are actually seeing is pressure and almost bargaining for which in some ways this morning my learned friend Mr. Kay was acting as a sort of agent, between the Court and the accused, and that's quite wrong. I've said in our pleading that courts have to have confidence in ⁶⁷ themselves, but can I look at the problem in another way. Should the Court be making its decision on this important issue having regard to the particular responses, irrational, sometimes offensive, of this accused, or should they be making the decision on the basis simply that the accused is a rational and intelligent human being? We would say it has to be the second, and that to start making particular allowances for the extraordinary reactions of this particular accused is to continue what may have been an unperceived process of handing some of the authority from the Bench to this accused.

Let me put it in detailed form. Supposing you had before you an accused, man or woman, absolutely cooperative with the Trial Chamber, polite from first to last, sensible in everything he or she did, the object of absolutely no complaint, but unfortunately suffering the same medical condition as the accused appears to suffer from and with the same consequences for the trial, and this otherwise entirely rational, polite, and helpful human being nevertheless is absolutely incapable of seeing that the imposition of counsel will save him or her from the worst medical consequences and will vastly improve the trial timetable. I observe parenthetically: One day a week, four more years; two days a week, at least two more years.

I go back to the example. If the Court was faced with such an accused who is not claiming that he or she would be distressed at having to deal with a professional lawyer, would the accused make -- would the Appeals Chamber make the same decision as the Trial Chamber made? Inevitably it would, because it would have in mind indeed the health ⁶⁸ interests of the accused, which this accused somewhat obscures from us by his attitude, and it would have the legitimate interests of justice of bringing the trial to a proper and comparatively speedy conclusion. And what, of course, would then be the response of the reasonable human being? It would be to take every offer made to it by the Trial Chamber to engage with counsel, to take witnesses in part in examination-in-chief and in re-examination, and the case would proceed smoothly.

We are effectively being threatened by the accused with his assertion that he will not comply with anything except the return of his rights. I was concerned along the way to hear my learned friend Mr. Kay describing himself as a victim. I'm sure it was a mistake. It is lawyers' and indeed Judges' pleasure in life to be involved in the unraveling of difficult problems that involve other people. The more difficult the problem, typically the greater the pleasure. We can't complain about our lot. And he, and he knows this, is available, having been engaged, to continue with the task that he has been shouldering manfully in difficult circumstances over the recent weeks. And I must press this Chamber in no way to yield to the pressure coming from the accused but to make its decision as it would make the decision for any other accused at the first stage suffering from this medical condition, and in our respectful submission, the decision that would be made is completely obvious: The appeal would be dismissed.

JUDGE MERON: Mr. Nice, could you comment a bit further on the possibility, capability of Mr. Kay to defend Mr. Milosevic effectively, ⁶⁹ fairly, in absence of any communication with him, any briefings from him?

MR. NICE: I can, and I'm actually particularly grateful that you asked me that because I temporarily lost my way and it was one of the topics I was coming back to. I lost my way in my head. That's a topic I wanted to come back to, and I approach it in this way: The suggestion that the case is incomplete is incorrect. The case can be complete now. If the accused doesn't wish to call any more evidence, the case can end. Everybody might like to have heard more evidence, might like to have explored his Defence more, but if he doesn't want to call any more evidence, he doesn't have to. We can make our submissions. No more public appearances for the accused. End of case. If I wishes to have his case aired and imposed counsel remains, then it is entirely up to him whether his case is aired or not, and it's not up to anybody else. It's not a result of anybody else's bad decision-making that he may be denied that pleasure. Shall I come back to Your Honour's particular question, and then I'll revert to the more general topic.

Mr. Kay is in an actually quite fortunate position compared with what he might have been, because we've had, I think, three opening addresses by the accused so that he knows what the accused's case is. He and Ms. Higgins have sat in on the cross-examination by the accused, which although frequently of a curious focus, nevertheless reveals what it is the accused would like to advance. So if he's able to, he can present that case.

Further, he has been provided by the accused with a very large ⁷⁰ witness list. Those witnesses from that list that he can call are witnesses who will comprise the Defence case. He may be able to identify others who fit in with the accused's case as it is known to be, but he actually has a reservoir of witnesses from whom to draw -- or on which to draw to call before the Court.

Now, I then hear somebody ask, But what about the fact that the witnesses aren't cooperating? Well, again by whom is this court run? Because it's certainly not run by the witnesses. But why aren't they coming? In the -- one of the earlier hearings, His Honour Judge Bonomy asked the accused straightforwardly, "Do you want your witnesses to come?" To which the accused gave a very calculated reply that was neither yes nor no but gave them the opportunity to join with him in a silent agreement to try and thwart the orders of this court.

Now, let there be no doubt about this and let the accused understand this: If assigned counsel remains and if the accused says, "I want my witnesses to come to this court to defend me, to be part of my defence," either most or all of them will drop their posture of resistance, alibi for them though it may be in some cases, and they will be available. And if the accused has said in terms that he wants his witnesses to come, why, the grounds for seeking subpoenas from the Trial Chamber will that much stronger.

If, on the other hand, the accused maintains his present position and the witnesses maintain their present position, grounds for having subpoenas issued might be much weaker, because I suspect that any Trial Chamber would be cautious before bringing to court what will become the ⁷¹ collective term and martyrdom of unwilling Defence witnesses. And what will happen? The case will simply go short with whatever volunteer witnesses Mr. Kay can bring and whatever other witnesses the Trial Chamber might themselves in their own judgement call under their own powers. But there's only one person who will have been responsible for this, and it's the accused, because it lies within his power to effect and almost certainly to determine the willingness of these witnesses to attend. And it would, in our respectful submission, be wholly wrong for this Trial Chamber to formulate its decision on this point paying any regard to the quite unlawful approach, or potentially unlawful approach of these potential witnesses.

Your Honour, I'm not sure how much longer I've got. Apparently it's finished. I had some more points to make, but ...

JUDGE MERON: I think that -- you have finished, Mr. Nice?

MR. NICE: Apparently I have, yes.

JUDGE MERON: If you would like to say concluding sentence or two, it's all right, but don't --

MR. NICE: No, Your Honour. I think I probably have taken as much of your time as I need.

JUDGE MERON: He has more time? I am advised that you have a few more minutes left. You don't have to use them, if you --

MR. NICE: No, I don't. I was only going to -- in deference to the enormous hard work that Ms. Graham has done, I certainly should remind you of the particular value of the Norman case, which I know you've got in the book of authorities, and that's a case of considerable value on this ⁷² discrete point that I haven't touched on: Should there be finality now about the imposition or assignment of counsel? Our argument is yes for the reasons I've already given, practical reasons, and the desirability of having finality now is clearly supported by the case of Norman where there was a late application for a change of representation by an accused and the decision was made against him on, amongst other reasons, that ground. Your Honour, that's that point, but that apart, if I can just look at my notes.

Perhaps I could just say this by way of a general observation: Fairness, we've said, should be enlarged to be put under the umbrella of interests of justice although the Trial Chamber obviously explored issues that appeared to be the interests of justice but couched it in terms of fairness. Fairness can only be conceived of when you have two parties, really, or two or three parties or competing interests, because fairness is what you give or you offer this person, what you give or offer this person. This accused, in fairness, has been offered far more, it may be thought, than has been offered to any other side, both in his -- in the liberty he's been allowed in his performance and conduct in court but in particular in that he has been offered representation by himself in tandem with counsel, he has been offered representation by his own counsel the minute he -- or this was the case, it may have changed -- but the minute he decides to appoint his own counsel, and he's been offered the assistance of imposed or assigned counsel through the Court. So it's very easy not to understand that fairness is a concept of what's been offered to one side and the other. ⁷³ Your Honour, I'll leave it there. Thank you.

JUDGE MERON: Thank you, Mr. Nice. I think we will break for ten minutes before having Mr. Kay and Mr. Milosevic present their responses of 15 minutes each.

MR. NICE: Your Honour, just one thing.

JUDGE MERON: Please.

MR. NICE: I'm reminded by Ms. Dicklich. I'm not sure whether you've got the full medical reports in order. I'm not sure whether you need them, but if you want them, we have them and we have had them copied so that they are complete.

THE INTERPRETER: Microphone.

JUDGE MERON: I think that we would like to have them. I am -- I am told that the interpreters' human rights requires them to have a 20-minute break, and so it will be.

--- Recess taken at 12.05 p.m.

--- On resuming at 12.34 p.m.

JUDGE MERON: Please be seated. Mr. Kay, before you start, may I add something to your catalogue of issues on which you might or might not want to speak. You may have noticed my question to Mr. Nice and his answer regarding the scope of matters within the proper purview of the Appeals Chamber. Mr. Nice said, and I hope I understood him correctly, but he's here so he can correct me if I did not, that there is authority in this Tribunal under precedence and jurisprudence for the Appeals Chamber to uphold the Trial Chamber's conclusion on alternate grounds and that it can do so by a reference to ⁷⁴ matters that were not fully considered or considered at all by the Trial Chamber.

Did I understand you correctly, Mr. Nice? Thank you. Could you comment on that. I would be prepared to add two or three minutes to your 15 minutes for that.

MR. KAY: Thank you, Mr. President. First of all, the circumstances in which an Appeals Chamber can interfere with the decision of a Trial Chamber are quite limited, and we set that out in our filing at paragraph 9. An appellant must demonstrate that the decision is invalidated by an error of law or there's been an error in the exercise of discretion. The issue is not whether the decision was correct in the sense that the Appeals Chamber agrees with that decision but, rather, whether the Trial Chamber has correctly exercised its discretion in reaching that decision. What happens here is a judgement of the decision-making process of the Appeals Chamber. The respondent's additional grounds upon which the Trial Chamber should have based its decision are just a repetition of their own legal arguments that were not followed by the Court of first instance. And as we set out, the Trial Chamber clearly rejected their line of argument, and it was said thus: "While the Trial Chamber was concerned to note that irregularities in the medical findings relating to non-adherence to the prescribed medical regime and the drugs found in the blood and in the possession of the accused, the Chamber has not based this decision on the Prosecution's submission that the accused has wilfully manipulated the trial timetable through these and other means." ⁷⁵ That is a clear decision of fact. Judge Kwon, in the transcript at page 32380, said: "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 towards these proceedings." The way the system operates is the Trial Chamber's findings of decisions of fact, which must be either unreasonable or wrong in law or errors of their discretion. And in our submission, the attempt here to introduce the additional features which were specifically rejected in an interlocutory appeal, all the examples cited by the Prosecution in support of their argument on additional grounds are not on the point. The three decisions that they cite are all appeals from final judgements of acquittal or acquittals pursuant to Rule 98 bis. And those decisions allowed the defendant to add additional grounds in support of his acquittal once the Prosecution challenged the decision. This is set out in paragraph 15 of our reply.

Their citing of the jurisprudence is not on the point, and we ask this Appeals Chamber to be very wary here of entering into areas that it should not enter into because it is not properly before it. They did not appeal that decision. They have sought by a back door to introduce those issues which are not the subject matter of this interlocutory appeal and what certification for this appeal was based upon.

JUDGE MERON: Would you excuse me for a second. I will exercise my prerogative and ask Mr. Nice whether he, in two or three minutes, could react to this point, because it is -- it would help to clarify this issue of purview of appellate review. ⁷⁶

MR. KAY: Of course.

JUDGE MERON: Of the parameters. Mr. Nice.

MR. NICE: Your Honour, I'm grateful for the opportunity to deal with this. In our filing you will find our arguments set out at paragraph 12 and onwards. It is quite true that the argument -- that the particular cases to which we refer come from final decisions, but there's absolutely no reason why they shouldn't apply, all other things being equal, to a decision of this particular kind, especially given, freestanding, the need for this to be a once-and-for-all final decision. If one looks at the -- can I just deal with the certification point which was mentioned. We gave active consideration to whether we should seek certification first on these points from the Trial Chamber, given the way they had been argued but not dealt with. We considered the matter carefully, recognising that it was open to us to argue the points in any event by our response and recognising that there is reason to be cautious about encouraging certification applications by successful parties.

In particular, we have in mind the history of successful accused seeking to raise matters on appeal by certification, or before certification was a process, the equivalent of certification, and it happened in Jelisic, and this being resisted and not favoured, and there is a concern that one shouldn't indeed encourage a proliferation of appeals. So we looked at it two ways round, practically, and we then looked at the law, and the law from our own tribunals - or our own Tribunal and our sister Tribunal - but also from around the world, ⁷⁷ suggests that where a decision can be supported for other reasons that have been raised in the lower court, then it can be done; and indeed in some jurisdictions - there's an Australian case which says - it actually must be done for this reason: If you have, as we have here today, an opportunity of raising the arguments before you and we don't take it and you then send the case back -- the issue back to the Trial Chamber in this case, it could be argued we had our chance to raise the arguments here and we didn't take it.

So that in our submission, the position is as I suggested. It's certainly open for us to argue it, it's certainly open for the Appeals Chamber on all the authority from around the world and locally to base its decision on those additional grounds. It's not obliged to deal with it, of course, because it's not an issue for which certification has been granted, but for the practical reasons, please do.

JUDGE MERON: Thank you. Thank you, Mr. Nice. Mr. Kay, would you now resume.

MR. KAY: Yes. And in reply on that issue, we have a procedure of certification for interlocutory appeal, and the Trial Chamber considers the importance of the issue and whether it is appropriate to issue an interlocutory appeal certificate.

These grounds have never been through that process for the Trial Chamber, which is the present body, considering this trial. The authorities cited rely on final cases which are subject to Rule 108, notice of appeal. I'm grateful for my learned friend Ms. Higgins, as ever, for pointing this out to me. ⁷⁸ Rule 108 in the notice of appeal states the Appeals Chamber may on good cause being shown by motion authorise a variation of the grounds of appeal. We are not in that territory here on the interlocutory appeal, which is a very specific and different kind of beast than the final appeal. And that is why we say that this is an impermissible interference with the rights of the Trial Chamber.

In moving on to other matters now in reply, and with an eye on the clock, Prosecution in their argument have not dealt with the fundamental problem that this trial is faced with, and that is that these are adversarial proceedings; it is the duty of each party in the party-driven system to put their case. How can we, as assigned counsel with no instructions, put the defendant's case? It is a fundamental flaw for this form of proceedings.

If the proceedings were conducted under a different form of criminal justice model, it might well be possible to use an assigned counsel in a judicially driven procedure. But in a party-driven procedure where you, the Judges, are entitled to rely on the instructions of the advocate for the party as being the basis for the conduct of the trial, because that gives a confidence in the process that is being undertaken, where that is absent and you are guessing that I have got it right, there is a fundamental defect in the procedure that is taking place, and what is happening is that that responsibility is being put on assigned counsel as a means of giving legitimacy to the defence that is being put. If that defence is without instructions, it is valueless to the trial process. And we emphasise that because it is important at times to consider in what ⁷⁹ form of procedure steps are taking place.

As an example, I had the question earlier today about the medical report, why he didn't take steps in relation to that, and the answer was staring at me in the face in many respects: He comes from a judicially driven system. His lawyers and advisors come from a judicially driven system. He didn't think that this was a party-driven system where the party has the obligation to either ask for the production of the doctors for cross-examination or for the production of a report through the Judge. He doesn't come from that system.

Your Honour -- sorry. I thought there was going to be an interjection there.

That is a crucial issue that must be borne in mind in relation to his approach to these matters.

Points were made by Mr. Milosevic concerning the actual basis of the medical findings, and you've now, I understand, are going to be provided with the complete medical file. It is important, that letter that he relies upon dated the 10th of June, 2004, because it did say, "I consider the blood pressure --" "I do not consider the blood pressure to be so high he would have to cease his activities." It was saying that he was able to work. But what we had was the Trial Chamber listing dates for the commencement of the Defence case before there had been a clearance that he was fit enough to work. So when it says the Defence case was unable to start a number of times, that is because the case had been listed in advance of any medical opinion that supported that listing. So to cite that as a kind of fact to show the disruption to the proceedings ⁸⁰ in a way is not directly dealing with why the case was listed and why those fixtures were broken.

And if you do go through that medical record, you will see that there are a large number of instances where he had viral infections and influenza, which can strike down any counsel, it can strike down any Judge. You have a system here where you're still able to operate with two Judges if a third is indisposed and the right Rule is correctly applied. The Prosecution have frequently portrayed this defendant as being irrational, frequently taken issue with his behaviour and conduct, neglecting their own attitude and how they express their views about him, sometimes very strongly, in the days of the amicus curiae, about us, calling us misconceived or whatever. There is a tendency here for this phrase we have, the pot calling the kettle black, and that is that one side insults the other and the other insults them back. We do have a history of inappropriate and strong language being used between the parties.

In my submission, the fact that this accused wishes to exercise his rights is a rational demonstration of his position rather than anything irrational. Once you go down that step of giving your case to an attorney, you're giving a power of attorney. You are giving up your case to someone else. You have to trust them with that gift and undertaking. You must remember, this defendant was the president of a large state. He was a man used to running his own affairs. For him not to want to give up something that he feels he should control is entirely understandable. And why should he put it into the hands of a third party ⁸¹ and trust them to put that case right? Why should he have to do that? There were defendants in person before there were lawyers. Lawyers came later. And we must remember how lawyers are just given an opportunity, a trust, which requires confidence from the person who is giving that trust. And if he doesn't have confidence in another party to represent him, he is entitled to take his own course, which is entirely rational.

In our submission, from what we have got left here, the only winners on this issue, with us standing here as assigned counsel with no instructions, are the Prosecution. The Judges aren't the winners, he's not the winner, and we aren't the winner at all. And in those circumstances, faced with those problems, we urge this Court to overturn this decision and grant the right to represent himself back to this accused.

JUDGE MERON: I see no questions from my colleagues, so thank you very much for your argument, and I will now turn again to Mr. Milosevic and give him 15 minutes for his additional response.

THE APPELLANT: [Interpretation] You should be clear on this mystification regarding the alleged failure to comply with my therapy. You can find out the truth from the authorised medical personnel at the Detention Unit. I'm going to explain.

There is no mystification whatsoever. I was told one day that the next day a test would be made to ascertain how much of the medication I'm taking is actually absorbed by my body, and that I would receive medication at 7.00 a.m. in order to take a blood sample five hours later ⁸² at 2.00 p.m. and the concentration of the medication would be measured in my blood. There is a record of this. At 7.00 a.m. exactly I took the medication, and two hours later a blood sample was taken. The analysis, however, showed that the concentration in my blood was not sufficient. What business of that is mine? Please tell me. I don't know what was wrong, whether there was enough of the concentration of the medication in the pill itself or not or something else was the problem. In any case, I complied with the procedure fully. Everything was done properly. And to base a theory on the allegation that I'm refusing to take my medicine is absolutely senseless. The procedure could have been checked. Another method could have been chosen, because no method is absolutely foolproof, but to take such conclusions is absolutely uncalled for, especially by laymen such as Mr. Nice. I will not waste any more time on this. Second, regarding the campaign, you intervened, Mr. Meron, when I used the word "campaign" and when I mentioned Michael Scharf. Michael Scharf used to be the legal advisor of Madeleine Albright, as you know, I suppose. You also know that I was brought here on the 5th of July, being ill when the Trial Chamber ignored the fact that I'm ill, and the press came here to hear my opening statement although they were not notified that there would be no opening statement on that day. You know, Madeleine Albright was here and that she personally is anxious, in view of her own responsibility for the bombing of my country and her own participation in aiding Croatian forces in the Operation Storm when several hundred thousand Serbs were expelled from Croatia. And the next day, Mr. Prospero, the ambassador of your country, a ⁸³ person in charge of these issues, arrived.

Mrs. Albright is often referred to as the mother of this Tribunal and her personal interest, vested interest, is indubitable. It is doubtless that she has a role in this campaign, and you can see this argumentation that she shares in the transcript of Mr. Nice's speech. Mr. Nice spoke here, and I wish to respond to several of the things he said. He said it was up to me whether I would accept what has been offered. This is not a situation of offering or accepting. We are not at the bazaar where people are offering and taking. We have a completely different situation here. We are discussing the minimum of my rights, on which I insist. It is not a case of offering and accepting or not accepting wherein I am to take the consequences of my own refusal. What is at issue here is to observe the minimum of my guaranteed rights. Second, isn't it absolutely clear that I have the right to appoint counsel, but I also have the right not to appoint counsel? I am exercising my right not to appoint counsel; in other words, my right to represent myself. Therefore, I am acting in full conformity with the spirit of the right given me.

Furthermore, Mr. Nice says that a judgement can be taken even without a Defence case, because several witnesses have been here, none of which have provided any evidence. So a judgement can be taken without a Defence. That is precisely their aim, because a Defence put forward by an imposed counsel is not my defence. That, I hope, need not be proven. Defence through an imposed counsel is a legal fiction. Furthermore, Mr. Nice says that I gave a list of witnesses to ⁸⁴ Mr. Kay. That is not true. I disclosed my witness list through the liaison officer answerable to the Trial Chamber. Mr. Kay, in his official capacity, has access to that list of witnesses, and through no fault of his, he has -- he doesn't know what to do with it, as he doesn't know what to do with the list of thousands of exhibits that I made available, because if we keep this limit of 150 days, Mr. Kay does not know what selection I personally would have made out of the 1.600 witnesses to fit into the 150 days. And you will admit, gentlemen, that a bad use of witnesses and exhibits is worse than a complete failure to use witnesses and exhibits.

Then Mr. Nice asked the question, Who is running this court? That is not the question here. The question here is, Who is running my Defence, me or Mr. Nice? For the duration of their half time, I didn't show a shadow of intention to interfere with their business, whereas they have wanted all the time to organise my Defence and to dictate the terms and conditions of my exercise of my own rights. That is absolutely inappropriate. I didn't take away my own right to self-representation; it was taken away from me by the Trial Chamber.

I therefore demand my right to represent myself back. I believe that my legal position cannot be changed in the middle of the trial, or my capacity to defend myself, and I demand my right back. Thank you.

JUDGE MERON: Thank you. Thank you, Mr. Milosevic, for your additional submission. I would like to express my appreciation to all -- oh, terribly sorry, Mr. Nice.

MR. NICE: No. The apology is mine. The topic you asked me a ⁸⁵ question about at the beginning of this most recent session was one in respect of which Ms. Graham had turned up one other authority, a high authority from the Supreme Court of Canada, and if it will assist you, then I can make it available to you. It is again a final decision, I think, it's not an interlocutory appeal, but it summarises at paragraph 9 the position in the Canadian Supreme Court on taking arguments and relying on arguments either taken or not taken below. So if the case might assist you, I can make it available to you. It's a case called Perka, Nelson, Hines and Johnson, and it's of the 11th of October, 1984.

JUDGE MERON: Mr. Kay, I take it you have no objections.

MR. KAY: No.

MR. NICE: I'm very grateful and sorry not to have done that earlier.

JUDGE MERON: First let me express my appreciation to all of the parties here - Mr. Kay, Mr. Milosevic, the Prosecutor - for a very, very good exchange this morning which helps the Court in having a clearer vision of the issues before us.

And I would like to end on a final note, and this is, in light of these discussions today and the briefing already submitted to the Bench, my colleagues and I have discussed the possibility of issuing an order to the parties to produce supplementary briefing on certain questions. Assuming that we so decide, assuming that we decide that such a course of action is necessary, that order can be expected to issue shortly. So thank you again for your excellent work, and the hearing stands adjourned. ⁸⁶

--- Whereupon the Appeal Proceedings adjourned at 1.04 p.m.