³³¹⁵³

Tuesday, 9 November 2004

[Open session]

[The accused entered court]

--- Upon commencing at 9.06 a.m.

JUDGE ROBINSON: Mr. Kay.

MR. KAY: Your Honour.

JUDGE ROBINSON: The purpose of the hearing today is to deal with your application for withdrawal.

MR. KAY: Yes.

JUDGE ROBINSON: Before you commence, it occurs to the Chamber that there is a preliminary issue that has to be addressed. What I'm saying is that before you go to the merits, there is a jurisdictional issue that has to be addressed, and it arises in this way: That Article 19 of the directive on assignment, on its face at any rate, gives the power of withdrawal to the Registrar. From a refusal of a request to withdraw, Article 19 provides that the aggrieved party may seek the President's review of the decision.

In the past, Trial Chambers have reviewed decisions of the Registrar to withdraw, and that has been commented on by the Appeals Chamber in several cases, notably in Blagojevic, in which reference was made to an earlier decision in Delalic and the dictum that it is not ordinarily appropriate for a Chamber to consider motions and matters that are within the primary competence of the Registrar. And importantly, in Blagojevic, the Appeals Chamber reviewed its earlier position on this matter and said that where a power is specifically conferred on the ³³¹⁵⁴ Registrar and the President, then that is a procedure that should be followed and Trial Chambers should respect that. They should not normally usurp the power of the Registrar and the -- and the President in this matter.

So I bring this to your attention because I think, first, the Trial Chamber will have to be persuaded that it has a proper power in this matter to deal with the request for withdrawal.

MR. KAY: Yes. We were aware of this, and we wrote to the Registrar in the first instance in a letter dated the 26th of October, 2004. We addressed that specifically to him because we were aware of the route under the regulations. And a copy of that letter, out of courtesy, was sent to the Trial Chamber, amongst other parties, those who had been involved, if you like, in various aspects of the decision-making process. We had a meeting with the Deputy Registrar, who was dealing with this matter on behalf of the Registrar, and we told him it was addressed to the Registrar, and he was of the view that as it had been a Trial Chamber decision, that this matter should be referred back to the Trial Chamber because the Trial Chamber had been involved in the decision-making process in the assignment of counsel in the first place. At the time I had stressed that I didn't want to play yo-yo between various parts of this institution, and as I understand it, the Judges' Chamber was consulted about the matter, and it was determined between the Registrar and the Judges' Chambers that the best place for this matter to be referred to would be the Trial Chamber, the Registrar having acted under the order of the Trial Chamber. ³³¹⁵⁵

JUDGE ROBINSON: I'm not myself aware of any part played by the Chamber --

MR. KAY: Well --

JUDGE ROBINSON: -- in this matter. But carry on, Mr. Kay.

MR. KAY: There were discussions as to who would take responsibility for this particular matter, because it was a matter that was going to be obviously of great importance, it was going to have great impact, not only in relation to our particular case, but obviously for the wider implications in other cases. There are other cases where this has been a matter of concern.

In those circumstances, we could only follow what guidance the Registrar gave us, because we were the ones who handed it to the Registry in the first place, and from the Registry it was then moved to the Trial Chamber.

It's a matter for Your Honours whether you think you have jurisdiction or not, but the decision-making process of the Registry was that it would be their view that it went back to the Trial Chamber, the Registrar having acted under that order.

JUDGE ROBINSON: Be that as it may, Mr. Kay, the matter is now here and we have to settle that preliminary question. So so much for how it got here. It is here now, and we have to deal with this preliminary issue, because the Chamber wants to satisfy itself, if it is to hear the application, that it has a proper jurisprudential basis to hear it.

MR. KAY: The order of the Trial Chamber appointing assigned counsel puts jurisdiction, I would have thought, with the Trial Chamber. ³³¹⁵⁶ Generally these orders come about as a result of an assignment made by the Registrar and a Trial Chamber is not involved. In the ordinary run of appointments in a case, it is the Registrar who, having, with an accused, selected counsel, assigns them and deals with the matter entirely and the first involvement of a Trial Chamber is notification of the Registrar's appointment.

JUDGE ROBINSON: Blagojevic seemed to operate on a distinction between a decision by the Registrar which is wholly administrative and in which a Trial Chamber should not interfere, that's an administrative matter, and a decision by the Registrar which could affect the fairness of the trial. And Blagojevic says that in such a case the Trial Chamber would be entitled to act if it goes to the fairness of the trial. Fairness is not defined, and it's a difficult matter to grasp this distinction between an administrative decision on the question of assignment, which remains wholly at the level of being administrative, and one which has an impact on the fairness of the trial.

MR. KAY: In this case, the Trial Chamber gave the Registrar until 1.00 p.m. on the 3rd of September to deal with the issue of assignment of counsel and thereafter issued their order on modalities. The Registrar's view was that he was performing his function as a result of the will of the Trial Chamber exercising its powers within the course of the trial itself and that he had not been involved in part of the administration or processing of the matter in the usual way.

This matter, as it arises during the course of the trial, could be said to come before the Trial Chamber as a result of the litigation rather ³³¹⁵⁷ than the administration of justice, arising, as it did, as a result of legal argument before the Trial Chamber on the 1st of September and 2nd of September of this year and thereafter having been subject to an appeal, and the Appeals Chamber having made a decision referring the matter back to the Trial Chamber.

Our concern was that we took the right route and we had this matter dealt with in a way that was appropriate, and our clear understanding of the decision by the Registry was that this was a matter with which Your Honours should deal with as the Trial Chamber, it having been part of the litigation and trial process rather than in the ordinary course of events an appointment arising by the Registrar engaging in the usual function to assign counsel and thereafter, as a result of his decision and something that he had done, the process that had been called into question was his judgement on the matter.

JUDGE ROBINSON: It's clear that ultimately it's a matter for the Registrar. I think Article 19 makes that clear. I mean, we may deal with it and we may come to a particular view and the Registrar would then follow it, but ultimately it is, under Article 19, a matter for the Registrar.

MR. KAY: Would it be appropriate for the Trial Chamber to hear from the Registrar on the issue? Because this is a matter that may have repercussions elsewhere.

JUDGE BONOMY: Mr. Kay, why was it you wrote to the Registrar in the first instance and didn't apply to the Trial Chamber if your view is the one you're expressing at the moment? ^{33158 BLANK PAGE 33159}

MR. KAY: Because the Registrar had assigned us as counsel and issued an appropriate certificate which we then responded to as a result of the issues that had arisen, which is why we directed it to the Registrar. And we were advised that this matter was to be moved from the Registrar to the Trial Chamber, you having directed the Registrar to perform his function in a particular way.

JUDGE BONOMY: It may be that you haven't actually considered the jurisprudence of the Tribunal in detail on this and had assumed that we were going to deal with it today. Is that the situation?

MR. KAY: We had considered it, and we had discussed it with counsel in Blagojevic, who --

JUDGE BONOMY: So are you able to draw our attention then to the jurisprudential basis on which we should deal with this matter.

MR. KAY: Only on the basis that I have referred already, that we are dealing with an order from this Trial Chamber which therefore, in our submission, does put -- make it something that the Trial Chamber has to review. But if the Trial Chamber doesn't want that, and I was trying to avoid -- as I put it to the Deputy Registrar myself, I did not want to play yo-yo on this issue in this building and that he had to understand that we wanted to make this application as we felt it was right and proper.

The Registrar himself referred this matter to Your Honours rather than us. We have not -- what has come before the Court is our letter to the Registrar, which we made a public document. The Registrar has moved it to the Trial Chamber. All we have done since this letter of the 26th ³³¹⁶⁰ of October is file a motion yesterday which expands the basis of the legal argument that we felt might be helpful in the decision-making process as it refers to a wider scope of law than that contained within our original letter. So the Registrar is the one who's brought it here.

JUDGE BONOMY: Mr. Kay, the Registrar referred the request to the Trial Chamber for its consideration, and he did that considering that in the present circumstances, the request raises issues that are specific to the context of the case and that consideration of the matters therein may be more appropriately addressed by the Trial Chamber in view of its order. Now, there's quite a lot of law in this Tribunal alone on the distinction between the administrative exercise that the Registrar is carrying out and the potential for the Trial Chamber dealing with the issue of withdrawal where an issue, for example, of fairness arises. It's even possible to interpret that as suggesting that there are two lines, two alternative lines that one might follow in that situation, or alternatively, it might be argued that the Trial Chamber has a judicial review role in relation to a decision taken administratively, first of all by the Registrar and then by the President, although that might of itself seem odd.

Now, there may even be contradictions in that jurisprudence. But bearing in mind that the Registrar remitted the matter on the basis that issues specific to the context of the case arose, in his view, and that there are cases in which that is the basis on which Trial Chambers have actually dealt with such applications, I would have expected you to be able to address us on the law to help us to try to reconcile any ³³¹⁶¹ inconsistencies, apparent inconsistencies there might be in the jurisprudence.

Now, can I take it that you're not in a position to do that just now?

MR. KAY: Well, I don't see any inconsistencies, to be frank, Your Honour, because Your Honour has just been reading out that which I have said, that it arises during the litigation and as a result of an order of the Trial Chamber.

There are plainly occasions when something obviously arises as a result of the administrative process, and that goes down the particular route that it does, and cases may wrongly come to a Trial Chamber that should be dealt with at the Registrar level and through the procedure that the Rules provide for when it is referred to the President, but in relation to this particular issue, the arguments of the Registrar that it is a function of the trial process that he was caused to put into effect, i.e., the decision-making of the Trial Chamber, then we -- we have followed that route or, rather, I don't see we have followed that route because I just put it to the Registrar. The Registrar has followed that particular route, and I have made his reasoning clear on it. I don't think we can say any more on that matter. Either the Court is willing to accept jurisdiction because it arises during the trial itself, or we have to go back and advise the Registrar to refer the matter to the President and await the decision of the President.

JUDGE ROBINSON: No. The Registrar, if the matter went back to him, would himself make a decision. And if you are aggrieved by it you ³³¹⁶² would then go to the President. That's the procedure.

MR. KAY: But if he doesn't make a decision, then we go to the President. That's what I was --

JUDGE ROBINSON: Yes.

MR. KAY: I get a distinct feeling here of no decision-making on it, which I was trying to avoid, and it was in our interests.

JUDGE ROBINSON: The Chamber hasn't made up its mind on this. We're hearing --

MR. KAY: Oh, I appreciate -- I appreciate that.

JUDGE ROBINSON: Mr. Kay, if you --

MR. KAY: Sorry. The issue that we discussed with counsel in Blagojevic was on exactly these terms, about the differences between the particular cases, his having been a concern that after 360 hours of conference that he'd spent with an accused, the stage of the trial that they were at, that the accused was then seeking to alter his position with him; an entirely different set-up.

JUDGE ROBINSON: And you notice, Mr. Kay, Blagojevic dealt with the question whether the Trial Chamber properly reviewed a decision by the Registrar to refuse withdrawal. Here we're being asked to deal with the issue ab initio. It's not a question of review. The Registrar hasn't made any decision yet.

MR. KAY: I suppose one solution is -- I mean, is for this Trial Chamber to order the Registrar to make a decision on the issue. That is something, if the Trial Chamber feel it appropriate and that this is not an issue that goes, in the Blagojevic sense, to the fairness of the trial. ³³¹⁶³ But --

JUDGE BONOMY: Mr. Kay, let's assume the Registrar makes a decision and it's appealed to the President and you're unhappy with the outcome. Would you then consider that because an issue of fairness might arise in relation to the question of the assignment of counsel that you then might have a second bite at it and might ask the Trial Chamber to look at it because it has some other additional function to ensure the integrity of the trial process that somehow or other goes beyond the Registrar's function in an administrative sense so that we might here in this case have a multitude of processes dealing with this issue?

MR. KAY: It's -- it's difficult to deal with that matter --

JUDGE BONOMY: That's why I asked you the question about the jurisprudence. You must know whether you've got one route to deal with this matter or more than one route to deal with it.

MR. KAY: Well, the route that I'm on is the route that I was -- that I was put by the Registrar, and he is someone I must respect and has a role to play within these proceedings. And I can say that his arguments could be considered persuasive, because this does go to the appropriateness of a Trial Chamber order and the issues that arise from that order, which has been part of a chain of litigation since 2001 until today's date involving the same issues. And the Registrar, if he suddenly made an order withdrawing counsel, might feel that Your Honours in the Trial Chamber were wondering what he was up to and why you hadn't been consulted or why you hadn't had a role to play, because it does go to the issue of the fairness of the proceedings and the way the proceedings are ^{33164 BLANK PAGE 33165} to take place. It is something that in the Blagojevic decision, at paragraph 7, "The only inherent power that a Trial Chamber has is to ensure that the trial of an accused is fair. It cannot be appropriate for itself a power which is conferred elsewhere."

JUDGE ROBINSON: "Appropriate for itself."

MR. KAY: Yes. "It cannot appropriate for itself a power which is conferred elsewhere."

Well, the issue here was sent to the Registrar by the Trial Chamber, and that is why, the Registrar says, this is a Trial Chamber matter. I was acting under the instruction of the Trial Chamber, and in respecting their decision, he wasn't in a position to challenge the Trial Chamber's order when he made the assignment. He was acting under your order. And in a sense, he is saying, "Well, I'm not going to appropriate a power for myself that is conferred to the Trial Chamber." If you were to read that in terms of the Registrar's function, he is saying precisely that which it is saying that a Trial Chamber cannot do. He is saying the Registrar cannot appropriate for itself a power which is conferred elsewhere, and that power came from the Trial Chamber's order.

And then Blagojevic goes on to deal with the administrative issue that arose within that case, which was a very different issue to that which arises in this trial.

JUDGE BONOMY: Do you read Blagojevic as saying that the Trial Chamber did the right thing or the wrong thing? Procedurally. I appreciate they dealt with the merits, but on procedure, did that case say ³³¹⁶⁶ the Trial Chamber was right or wrong?

MR. KAY: I'm saying that it was right. And in many respects, the issues that are raised by this application to withdraw, if not acted upon by the Trial Chamber, are going to leave the Registrar in the same position.

Our issue is one of clear ethical reasons founded within the Code of Conduct that is replicated in other codes of conduct, international codes of conduct. If we withdraw and then the Registrar appoints someone else on the same issue, that new counsel may take the same ethical point. He may choose not to. And if he chooses not to, we are putting this Court on notice that there is a fundamental flaw in these proceedings, which is why we are taking the matter as it has arisen.

The danger is that if this point is not taken and is somehow washed over, that when this trial is gone back and considered, someone will be saying to a counsel, "Well, you were there, why didn't you do anything about the Codes of Conduct?" And everyone will be saying, "Well, it's his responsibility, the counsel's responsibility to take issues of the Code of Conduct, no one else." And that is why in many respects, one suspects, that the Registrar has referred this matter, as being a trial issue, back to the Trial Chamber.

If this Court was to order the Registrar to deal with the matter, he may act upon and make a decision and then he himself come back to this Trial Chamber to make representations on any orders made.

JUDGE KWON: So, Mr. Kay --

MR. KAY: Yes. ³³¹⁶⁷

JUDGE KWON: -- my impression is that what you are challenging now here is the assignment of counsel itself rather than the assignment of you specifically. So that is why you are saying that it is for the Trial Chamber to decide upon the matter. Am I correct in understanding that?

MR. KAY: Yes. My basis for the application comes from the position that we find ourselves in. And I am pointing out that this is not an issue that is solely confined to my position and deals, for instance, with instructions that might be embarrassing and an application to withdraw but deals with the overall position of an assignment not accepted by an accused which has repercussions, if we withdraw, upon any other counsel coming into the case and what is to be expected of assigned counsel.

JUDGE KWON: So --

MR. KAY: Assigned -- sorry.

JUDGE KWON: No.

MR. KAY: I was going to say you can have assigned counsel and that can be fine in principle. What is expected of that assigned counsel may well cause the problems with the Code of Conduct and the ethics of the counsel assigned for the Defence in the trial. So in a sense it is to deal with our position that we have been put in, the application to withdraw, but it is also raising what is expected of assigned counsel.

JUDGE KWON: So were we to follow your reasoning, then it would be impossible for a Trial Chamber to assign a counsel upon the accused who is unwilling to cooperate with him.

MR. KAY: You'd have to consider what you wanted that assigned ³³¹⁶⁸ counsel to do. And if it was to act in a way that guessed the instructions, that caused him to believe what instructions were to be, then you run into the ethical issues and breaches of the Codes of Conduct. If you wanted an assigned counsel to act rather in a way that the amici curiae in this case used to act, then you wouldn't have a problem. And it's not the fact of the assigned counsel. You can assign a counsel, but it's the jobs that are to be set for him or her to do.

JUDGE BONOMY: Mr. Kay, can you explain to me now the differences between the role you would now be expected to play in light of the Appeals Chamber's decision and the role that you did play as an amicus?

MR. KAY: We issued our request to the Registrar as soon as we had finished the Appeals Chamber hearing to demonstrate our independence in this issue and that we were considering it within the terms of the Codes of Conduct. At that stage, we were acting under the modalities order made by the Trial Chamber, which we attempted to put into operation, and we attempted to see if it would work with the accused. Our position is, in our submission, that it failed for us to be able to perform those functions, and so we had to point out to the Registrar that it was -- that it had reached a stage where it was causing us to be in conflict with the Code of Conduct. We had also sought advice from our own Bar counsel in England, first of all on the issue of assignment - there was no problem - secondly, on the order of modalities. And there we were advised, well, you've got to see if it works and you may reach a stage where you have to say this cannot happen and you have to withdraw. ³³¹⁶⁹ The Appeals Chamber, having made the decision that it had which overturned the order on modalities --

[Trial Chamber confers]

JUDGE ROBINSON: Proceed.

MR. KAY: Yes. The Appeals Chamber overturned the order on modalities, left the assignment of counsel. By that stage we had applied under our existing remit, which was as assigned counsel acting under the order of modalities. What has changed now is that the order of modalities is up to review as a result of the decision by the Appeals Chamber. At that stage -- at this stage there is no fresh order. We're still subject to the old order, and that is why our application to withdraw is founded upon that order.

It's not only founded upon that order, but it is as a result of what happened during those two months until the Appeals Chamber decision, from the 3rd of September until the 1st of November. Because during that time we found once what was a cordial relationship when we were amici curiae with the accused, and we were able to perform a worthwhile function with an informal degree of cooperation, we have found that in the last two months, that position in relation to us and the accused has completely been destroyed. I have not welcomed being called a prosecutor when I am representing a person as assigned counsel, nor have I welcomed criticism that I haven't put the case properly when I've got no instructions and I'm trying to do my best.

It has shown that, as assigned counsel, our relationship with this accused has run into the sand and has completely deteriorated to the ^{33170 BLANK PAGE 33171} extent that we do not have what existed before.

JUDGE BONOMY: That really wasn't the question I asked, or at least it wasn't an answer to the question, with respect, Mr. Kay. The question was what's the difference between the position you would now be in following the order or the terms of paragraph 19, that's the disposition of the Appeals Chamber's determination, and your position as amicus?

MR. KAY: I'm sorry, Your Honour. I was trying to explain that the position now is that we have no basis for a relationship. There was an amici curiae who --

JUDGE BONOMY: Let's leave that aside. I've read all that already in your written submission. But so far as the practicalities are concerned, in other words, the role that you would be expected to play in court, what is the difference?

MR. KAY: For us personally or on the overall issue of whether an amici or an assigned counsel? For us personally or in the abstract?

JUDGE BONOMY: You made a submission that there would be no difficulty for counsel taking on the role of amicus that you had before.

MR. KAY: Yes.

JUDGE BONOMY: Which involved cross-examination following upon -- or examination of witnesses following upon the cross-examination by Mr. Milosevic. Now, what is the difference now in practical terms, assuming we follow the set-up laid out in paragraph 19 of the disposition?

MR. KAY: For an assigned counsel in general other than me.

JUDGE BONOMY: Yes, in general. ³³¹⁷²

MR. KAY: Oh, there wouldn't be any problem, but there must be an issue which has to be considered very carefully. The accused calls evidence in chief, and it was something that was never resolved when we were amicus, as to what was to happen in the Defence phase of the case in the questioning of the accused's witnesses, because that would be considered to be cross-examination if not evidence in chief from him. And I can tell the Court I'd struggled for six weeks over this issue in the back of my mind over how it -- not knowing that we would end up as assigned counsel, but as amici curiae, how Ms. Higgins and I would have dealt with that issue.

JUDGE BONOMY: So to that extent the matter has improved. That issue has been resolved because your interests are clearly those of Mr. Milosevic to pursue what -- the lines that would emerge from his own examination and to amplify these insofar as you considered it appropriate.

MR. KAY: The trouble is if he wanted you to do that. He didn't really have -- and I can say, have any objection, as amici curiae, us questioning witnesses, and sometimes he would encourage it, and he'd say, "Mr. Kay, remember the NATO bombing," in an informal way, and we'd note that down and follow it through.

The difficulty, if you don't have that relationship --

JUDGE BONOMY: I've got that point, Mr. Kay.

MR. KAY: Yes.

JUDGE BONOMY: I just want to be clear, absolutely clear in my mind whether the modalities that the Appeals Chamber have guided us to follow put you in a position where you're more or less in the role of an ³³¹⁷³ amicus. Do you accept that that's the position?

MR. KAY: No, I don't accept their decision did. And paragraph 19, it was a matter of concern to me. Paragraph 20: "The Appeals Chamber stresses the following point: Practice, if all goes well, the trial should continue much as it did when Milosevic was healthy, playing the principal role in the courtroom during the hearings and the difference may well be imperceptible. If Milosevic's health problems re-surface with sufficient gravity, however, the presence of assigned counsel will enable the trial to continue even if Milosevic is temporarily unable to participate. The precise point at which that reshuffling trial roles should occur will be up to the Trial Chamber."

And this causes, again, the ethical issues.

JUDGE BONOMY: I can see -- I can entirely understand that, but that's a problem that may or may not arise.

MR. KAY: Yes.

JUDGE BONOMY: That's a hurdle we have to deal with if we come to it.

MR. KAY: I don't disagree with that.

JUDGE BONOMY: And I fully appreciate your concern about that. But subject to that, do you see that for counsel in general the role that the Appeals Chamber have indicated that counsel should play is broadly similar to the role of the amicus?

MR. KAY: Yes, the issue is over questioning and --

JUDGE BONOMY: But to that extent it's assisted because it has removed the dilemma you had before. ³³¹⁷⁴

MR. KAY: Submissions Issues on the law, filings on the law that he doesn't make that are in his interests may be possible. The -- there may be some things that he wouldn't want to challenge as a matter of law, I don't know, but you have to work it out. In our role as amici curiae, we gradually worked things out as to how we were able to best cover the accused's interests, as we saw it, and certain issues we put firmly before the Trial Chamber, like the filing over whether we made a submission under Rule 98 bis, so that Mr. Milosevic had an opportunity, if he wanted, to make a representation about it. It's the instructions and acting without them that is the problem in the case.

JUDGE ROBINSON: Mr. Kay, if you have nothing more on the preliminary issue of jurisdiction, I'll ask the Prosecutor if he has anything to assist us.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Nice.

MR. NICE: On the preliminary issue, I didn't come prepared to deal with that. I'd need some further time to deal with it. The matter was substantially ex parte so we received some but not all of the documentation.

The only points I can make without further careful consideration to guide you are these: That it might be possible to construe the reaction of the Registrar as a refusal, but that of course would then lead to a referral to the President.

The second point is it's obviously sensible, in a way, that this ³³¹⁷⁵ Chamber should deal with the issue, it having caused the assignment of counsel in the first place following argument about imposition, and I suppose it would be possible procedurally for there to be argument before this Chamber as if Mr. Kay had brought his application first here, as it might have been sensible to do, in order that an opinion of the Trial Chamber could be available to the Registrar for his deliberation. But again, I haven't considered that as a general procedural device and would seek some time before doing so.

JUDGE ROBINSON: That concerns me a little, because the Trial Chamber is not in the business of providing opinions.

MR. NICE: Well, if it can't do that we'll have to look at the matter much more formally. But as I say, I wasn't alerted. My responsibility entirely to the need to deal with this as a preliminary issue, and I'd prefer some time to deal with it. Other matters that have been raised, to some extent they really trespass onto the territory of the substantive argument, if it is ever held before this Trial Chamber, but other matters that arise from what Mr. Kay said this morning, for him to say that there is a fundamental flaw in these proceedings is to go a very long way and is arguably an unhelpful observation to be made at this stage.

What we know is that there was argument at an earlier stage by Mr. Kay about whether counsel should be assigned or not and that that argument proceeded on the basis, as indeed the Chamber instructed arguments should proceed --

JUDGE ROBINSON: I'll stop you there, Mr. Nice. Not dealing with ^{33176 BLANK PAGE 33177} whether there is a substantial flaw, but if he's right that a question of a substantial flaw arises, then that may go to the issue of fairness.

MR. NICE: Yes. I don't dispute that.

JUDGE ROBINSON: Yes.

MR. NICE: But going back -- absolutely. But going back to where I was, the earlier argument proceeded on the basis, as the Chamber instructed it should, that there would be no cooperation by the accused. And indeed the submissions of Mr. Kay before he ever accepted the assignment and thus the change in his terms of engagement forecast specifically that witnesses would not cooperate with him. Indeed I was concerned to see that in a public filing for fear that it might encourage witnesses to non-cooperation.

Further, in the very document that he provided you at court on the 2nd of September, his proposed model to which in large part the Chamber indicated it had turned for assistance, Mr. Kay said at paragraph 5: "In the event of the failure of the accused or any persons acting on his behalf cooperating with assigned counsel in the production and calling of witnesses identified by the accused as potential witnesses in his case, assigned counsel may cause those witnesses or any other witnesses deemed by him to be relevant in the case."

He went on at paragraph 6: "In the event of witnesses identified by the accused to be called in this case not cooperating with assigned counsel, that counsel may seek orders from the Trial Chamber to compel their attendance or cooperation if deemed necessary." And I -- ³³¹⁷⁸

JUDGE ROBINSON: Mr. Nice, that's going into --

MR. NICE: Yes, it's going into the merits.

JUDGE ROBINSON: And we are going to address that if we come to it, but I'd like us to be tidy in this process.

MR. NICE: I'm happy to do that. It's just that to some degree we'd ventured into these issues at the questioning of the Bench.

JUDGE ROBINSON: Yes.

MR. NICE: And if we want to stay narrowly within the confines of the procedural issue, I'd seek a little time to state our position so that we can be of maximum assistance to the court in something that, as I repeat, is essentially ex parte and which I don't have complete information. For example, I don't think we've seen the letters, but I might be wrong, passing to and from the Registrar. I have got a copy of the referral by the Registrar. That's the document of the 27th of October of this year or, rather, the Deputy Registrar, and I'll be corrected as to our possession or sight of the letters, but in any event I'd like them before offering you further assistance.

JUDGE ROBINSON: Thank you, Mr. Nice.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Milosevic, you've heard the matter that we're discussing, and if you have anything to say on it, bearing in mind that I'm confining discussion at this stage to the preliminary issue as to whether the Chamber has jurisdiction to deal with Mr. Kay's motion. I am not dealing with the merits of that application now, just the jurisdictional question. ³³¹⁷⁹ Do you have anything to say on that issue?

THE ACCUSED: [Interpretation] Mr. Robinson, as far as I understood, with your decision you put Mr. Kay in the situation he's in in the first place, so it's logical to assume that you do have the jurisdiction to resolve the situation you created yourself.

JUDGE ROBINSON: That's a very pragmatic approach. I hear it. Mr. Nice, how -- you said you might -- you would want some time. How much time?

MR. NICE: Well, within this morning. I don't -- I don't think very long, but --

THE INTERPRETER: Microphone, please.

MR. NICE: -- quite sure that I -- I want to be quite sure I give you the maximum assistance I can.

JUDGE ROBINSON: Forty-five minutes?

MR. NICE: Yes, I should hope so.

JUDGE ROBINSON: We will give you an hour.

MR. NICE: Thank you very much.

JUDGE ROBINSON: Yes, 11.00.

MR. NICE: I'm grateful to Judge Bonomy.

JUDGE ROBINSON: We will adjourn until 11.00.

--- Recess taken at 10.02 a.m.

--- On resuming at 11.07 a.m.

JUDGE ROBINSON: Yes, Mr. Nice.

MR. NICE: Your Honours, I'm grateful for having had not just 45 minutes but an hour, because with the considerable assistance of ³³¹⁸⁰ Ms. Graham, who has done a lot of the research into this topic, I have to tell you we'd reached three-quarters of the way to our conclusion by 45 minutes and we needed the full hour to get the final result. Our conclusion, which will need some minutes fully to explain, but our conclusion is that what should have happened is that Mr. Kay should have made an application under Rule 73 for further exercise of your powers under Rule 54 to annul your earlier decision.

The whole process of reasoning on this application of his is disturbed by the fact that the letter was sent between argument before the Appeals Chamber and their decision. And it may be -- when you've heard how we would invite you to approach the problem, it may be that it is easier to reach a resolution of this problem by considering what would have been the position had that application, the subject of the letter, not been launched until after the conclusion of the Appeals Chamber had been delivered. I will return to that because it may not be immediately obvious why we make that point, but I ask you to have it in the back of your minds.

It's necessary to go right back to the beginning and to look at the powers that the Court has to assign counsel, and immediately to have either in the back or the forefront of your minds, I don't know which, that although the word "assignment" is used in the regulatory documents of this Tribunal and is ordinarily construed as assignment on a voluntary basis of counsel to willing accused, it has been construed as including assignment of counsel to an unwilling accused which has been sometimes described as imposition of counsel, something not specifically covered in ³³¹⁸¹ the Statute, Rules, or regulations.

Assignment of counsel under the Statute, Rules, and directive appears to be something for which there is a comprehensive structure. On examination, that structure is, in fact, incomplete, for it does not cover specifically and cannot cover in practice that segment of assignment of counsel where it is assignment of counsel to an unwilling accused. This problem falls within that segment of the assignment of counsel for which there is not a fully articulated set of Rules, regulations, and directives.

Articles 20 and 21, in particular, of the Statute give rise to the right to assign counsel, and it may or not be fairly inferred that at that stage this particular circumstance was not envisaged. The Rules of Practice and Procedure deal with the assignment of counsel, and again it may be reasonably inferred that at the time of their creation, this particular type of problem was not envisaged, likewise with the directive. Assignment of counsel on an unwilling accused, sometimes described as imposition of counsel, has been achieved at this Tribunal in two cases; Seselj, and in the Milosevic case. In the time that you helpfully made available to me, I've tried to review our -- several pleadings over a number of years where we have dealt with imposition of counsel, i.e., assignment of counsel on an unwilling accused, and I think our pleadings have always relied upon Article 21 without articulating the precise regulatory mechanism by which the rights and powers given in Article 21 could be exercised so as to lead to such assignment or imposition of counsel. ^{33182 BLANK PAGE 33183} Had we -- I may be wrong, it may be lurking in one of the earlier pleadings, but I haven't been able to review them all in detail. However, had we been asked to explain the precise mechanism by which such assignment or imposition would have been achieved, we would have said that it would be achieved by an application under Rule 73, the general Rule for applications, with the Chamber exercising its powers under Rule 54. And it is interesting to observe that in the Seselj case, the other case where counsel was imposed, it is specific that the imposition was under Rule 54. In one case or the other, and in any other such case where counsel may be assigned to an unwilling accused, the question arises what happens next if a problem arises? And we have the answer in part in Seselj, because in Seselj a problem did arise between the accused and counsel assigned to him, unwilling though he was. And that problem was dealt with, and completely, by the Registrar. But the problem was radically different from the problem that we have here, because the problem there was that counsel wished to be relieved of his role for various reasons and he applied to the Registrar with the eventual result that there was substitution of him by another counsel in accordance with the directive. If I can just take a minute out to go back to my earlier point. The structure, the overall structure for dealing with assignment of counsel is incomplete because it doesn't deal - Statute, Rules, regulations, directives, whatever - with assignment of counsel on an unwilling accused, but wherever the structure, including the directive, can deal with the problem, then obviously it should deal with the problem. And that was emphasised in Blagojevic, where the Appeals Chamber made the ³³¹⁸⁴ point that the Trial Chamber's real power in something that could be dealt with by the Registrar is simply to stay proceedings. So we have two helpful bits of material from Seselj, as would have been inferred from our applications for imposition of counsel and as could have been articulated by me if I'd been asked and as has been made clear in Seselj. Imposition or assignment on an unwilling accused takes place by exercise of Rule 54, powers under Rule 54; thereafter, everything remaining with the Registrar under the directive insofar as it is possible.

So we then move to the present position and ask the question: Is this something that it is possible for the Registrar to deal with on detailed analysis under the directive, or is this part of the overall limited number of assignment-of-counsel problems that fall outside the fully articulated regime? And that's why I say we should look at the position as it would have been had Mr. Kay not served this letter at what for other reasons may be thought to have been an entirely inappropriate moment but waiting until there had been a decision of the Appeals Chamber. Let's examine what that would have shown us. It would have shown the Appeals Chamber saying assignment of counsel is indeed justified even if it is against the will of the accused concerned. And then what do we know Mr. Kay is trying to achieve? Is he doing something broadly parallel to what first counsel assigned to Seselj was doing, which was to seek a substitution of counsel, something that could stay with the Registrar? No, he is not. He has made it clear in his letter. And I understand I do have all the correspondence; I said earlier I wasn't sure. He's not ³³¹⁸⁵ seeking the change of --

Your Honours, just give me a minute. He made it clear in his letter and made it absolutely crystal clear today by his observation that there is a fundamental flaw in these proceedings that he is challenging the appropriateness or justification of assignment against the will of this accused at all. That question is a question that was originally asked and answered by effectively an application -- well, it wasn't an application by us because we were invited to make submissions, but effectively an application by us under Rule 73 for your exercise of your powers under 54, Rule 54, and would either constitute by Mr. Kay a second appeal, almost, because he would be asking the Appeals Chamber to say, "Well, you've said you can have counsel assigned, but we're saying no, you can't have counsel assigned because there's a fundamental flaw," or he would be asking the Trial Chamber, by route of Rule 73 and exercise of powers under 54, to annul its earlier decision to impose or assign counsel to an unwilling accused at all. Now, if that analysis, and I'm sorry to have taken some minutes of your time, is correct and logical, it means that the decision, the subject matter of the letter, should indeed be with this Chamber, and that, of course, accords with a certain feel of logic and indeed with the accused's own and on this occasion admirably succinct contribution, but in that way the matter can be before this Chamber.

Technically to reconstruct the documentation as an application for you to annul your earlier decision on the assignment of counsel should not, I hope, be beyond the ability of the Chamber to deal with, for what ³³¹⁸⁶ we have is a letter sent, as I say, inappropriately early, and the Registrar indicating by his -- or the Deputy Registrar indicating by his order that the matter is more appropriately dealt with by you. And in combination, those documents could be taken by the Chamber, or perhaps with Mr. Kay being required to make a further submission in writing, could be taken by you as an application to annul your earlier order. Nothing else to say save this: That if you were to be against this interpretation and proposed solution, the only alternative would be to say that this application should fall within the overall competence of the Registrar, but for the reasons I've advanced, the Registrar might find it impossible to deal with, because unlike the question of finding another counsel, which is something he was able to do in the Seselj case, he would be being asked to make a decision based on the whole conduct of a trial and all the evidence in the trial, which are things not known to him, and so it might be revealing the incompleteness of the overall code dealing with assignment of counsel by requiring the impossible of the Registrar. I don't know if I can assist further.

JUDGE ROBINSON: Thank you very much. It's quite helpful. Mr. Kay.

MR. KAY: Yes. Your Honours, the submission you've just heard plainly hasn't read carefully our letter, and I appreciate Mr. Nice had not seen it before today, although it was copied to them on the day that it was issued.

The reason for writing this letter to the Registrar on the 26th of October, after the Appeals Chamber hearing, was that the issue of the ³³¹⁸⁷ assignment of counsel was an entirely distinct issue from that which we were forced to deal with personally as assigned counsel. These two matters are not in any way connected.

The appeal on behalf of the accused that we took dealt with the assignment issue and the modalities. And in fact, I point out to the Court Prosecution actually objected to us appealing the modality, saying that it was an entirely separate matter, although plainly the Appeals Chamber didn't find any jot of sense in that application. When we got to the Appeals Chamber hearing, we knew that by the time we'd got to witness number 5 that our position had become increasingly untenable. And during the hearing, when I was in a position to have to explain the breakdown in relations between assigned counsel and the accused and what had happened and referred that to the Appeals Chamber, it was decided the moment that we walked out of this court that we had to logically express that in a proper way to the Registrar, who has a power under Article 19 of the directive on assignment of Defence counsel to deal with the issue.

So this was not any attempt to appeal the issue of assignment at all. It was a professional step taken in consultation with our Bar. We'd referred the matter as well to the Association of Defence Counsel, who I may say today have told us that their disciplinary committee, who have had a review of this entire matter, totally support our position and understand it, and I believe are issuing a draft statement later on today. But we felt that professionally we had reached the stage at the culmination of that Appeals Chamber hearing where we had argued ourselves ^{33188 BLANK PAGE 33189} into an untenable position, and, therefore, this matter had to go back to the Registrar whose directive had appointed us in the first place. He referred it, quite properly, under his own motion to the Trial Chamber, and yesterday we put in a formal and expanded motion on this issue which is a development from the 26th of October.

It quite plainly is a fair trial issue. I was asked about the jurisprudence earlier on. The lines of decisions dealing with this particular problem are all entirely consistent, and it's been pointed out to me that Your Honours Judges Robinson and Kwon were in the case of Knezevic where again you ruled that matters relating to the assignment of counsel for an accused affect the conduct of a trial, the Chamber has a statutory obligation to ensure the fair and expeditious conduct of the proceeding.

JUDGE ROBINSON: That was before Blagojevic, though.

MR. KAY: But it's precisely where we are.

JUDGE BONOMY: Are you saying it's consistent with Blagojevic?

MR. KAY: It is a matter to do with the fairness of the trial.

JUDGE BONOMY: Mr. Kay, you've just made reference to the Association of Defence Counsel. At the moment I haven't the remotest idea of what possible relevance something said to you by an association could have in the submissions that you're making before us. Could you help me on that, please.

MR. KAY: Certainly. The ADC is a body that was established through the Registry of this court as a way of assisting in the development of Defence counsel, their terms and conditions, their ³³¹⁹⁰ education, matters concerning their involvement in cases, and are the official body by which members of the Bar join if they're in the conduct of a case here. And they have a disciplinary committee. The executive committee appoint a disciplinary committee on an issue. They were naturally referred to by us as we were taking something that was a matter of professional conduct, and it is of concern to them the position that we find us in, because we feel in many respects we are standing for a position of integrity to make it clear to the Court what can and cannot be done by assigned counsel.

So there are two issues. There is the assignment issue, which we dealt with, and there arose and came about after two months our professional position, which we naturally would seek to consult others associated with the issue to take their advice.

JUDGE BONOMY: It seems to me very odd to make a submission about something an association thinks orally in the context of a hearing such as this and expect us to give any weight to it when we haven't the remotest idea of what were the factors considered by them and without anything presented in writing. So I for one, for my part, make it clear to you here and now that that will play no part in my determination of this.

MR. KAY: Well, if I'll just explain to Your Honour. They were provided all the materials that Your Honour was provided, and asked to review the issue and the professional course of conduct that we were embarked upon and whether, in their view, they disapproved or approved. And for us, it is an important issue, as it would be to consult our own Bar on the issue. ³³¹⁹¹ These two matters concerning the assignment are not linked, and that is not our position. As I have said and made clear, it may well be possible for the Court to assign counsel giving them particular roles and responsibilities in relation to the conduct of this trial. We now come before the Court with experience having tried to implement in good faith to enable this Defence case to happen, but we ran up against obstacles that have caused us to consider our professional position. And in our view, the Registrar rightly referred this matter to the Trial Chamber, it having come about as an issue relating to the conduct of this trial and its overall fairness.

If the Registrar had taken a decision I'm -- that said, "Ms. Higgins and Mr. Kay, you may withdraw," I'm sure this Trial Chamber would have suddenly been wondering what was going on. If that decision had been made in the absence, I'm sure the Registrar would have been invited, I'll use the word rather than hauled up, to explain himself. To us, it is quite plain where this issue arises and that we properly arose it or sent it to and gave it to the person who had appointed us in the first place. And that, we submit, is the issue in relation to jurisdiction.

Thank you.

JUDGE ROBINSON: Thank you, Mr. Kay.

[Trial Chamber confers]

JUDGE ROBINSON: The Trial Chamber will adjourn to consider this matter. We will adjourn until half past twelve.

--- Recess taken at 11.37 a.m. ³³¹⁹²

--- On resuming at 12.28 p.m.

JUDGE ROBINSON: At the beginning of the hearing this morning, the Chamber asked for submissions on the question of jurisdiction to hear the application filed by Mr. Kay for withdrawal. All the parties expressed the view that the Chamber had jurisdiction to hear the application. The Chamber is grateful for those submissions.

The Chamber has considered the Statute, the Rules, and the jurisprudence of the Tribunal and has concluded that it does have jurisdiction to hear the application.

We will hear from Mr. Kay first.

MR. KAY: Thank you, Your Honour. The Court knows that this issue arose as a result of a letter to the Registrar filed by us on the 26th of October, 2004, and as that letter said, followed the hearing of the Appeals Chamber on the 21st of October on the issue of assignment of counsel to the accused, and we requested a withdrawal of our position by the Registrar under Article 19 of the directive. That letter set out in basic terms a history of the matter, a background, and provided the Registrar with the basic details of the developments in the proceedings.

As the Court will know from that letter, we cited within it the Court's Code of Conduct and referred to Article 8 of the Code and other provisions of the Code and set out a -- within a binder the various materials that we had put together that were relevant to the letter. I know that that was copied for the Trial Chamber, because what we did was set together the regulations that were appropriate as well as references ³³¹⁹³ within the transcripts where issues arose concerning our conduct of the defence and statements made by Mr. Milosevic. I'd just like to check to ensure that that did get through from the Registry to the Trial Chamber. Good.

JUDGE ROBINSON: Yes, Mr. Kay, it did get through.

MR. KAY: Thank you.

JUDGE ROBINSON: Thank you.

MR. KAY: Because that is the basic working file --

JUDGE BONOMY: What I have is a document that's entitled "Assigned Counsel's Motion for Withdrawal with Annex A."

MR. KAY: That was filed yesterday, the 8th of --

JUDGE BONOMY: Is that not what we should be working on?

MR. KAY: -- of November. I'm just checking what materials you have, because with that Annex A we put the regulations, but we obviously didn't put the transcripts and other materials. It's the big file that we prepared for all the parties.

JUDGE ROBINSON: Mr. Nice.

MR. NICE: We haven't got that. We have Annex A, Table of Contents 1 to 10, and I think nothing else.

MR. KAY: There is the letter of the 26th of October, which the Prosecution should have. I don't know whether you would have had all the materials that went with it, because at that stage it was for the Registrar and the interested parties.

[Trial Chamber and legal officer confer]

JUDGE ROBINSON: The only disadvantage is that the Prosecutor ³³¹⁹⁴ doesn't have the material.

MR. KAY: Yes.

JUDGE ROBINSON: But I think the Prosecutor is well-versed in the case law of this, so --

MR. KAY: I was going to say it's all footnoted.

JUDGE ROBINSON: Yes.

MR. KAY: As the Court knows from the letter to the motion we filed yesterday, everything is footnoted and referenced, and you're able to pick up all these details.

JUDGE ROBINSON: Mr. Nice, if you find yourself embarrassed in any way, then you can bring it to our attention.

MR. KAY: And as I obviously know from Judge Bonomy's observation, you have the filing of the 8th of November, which was an expanded basis of the original letter, because having known that it had been referred to the Trial Chamber, we decided it was -- it was prudent to put a proper motion before the Court as well as expand the issues relating to the ethical issues that have arisen.

As the Court knows, the order was issued on the 2nd of September, 2004, for assigned counsel to be appointed, and on the 3rd of September, 2004, the Deputy Registrar appointed us, and later on that day the Trial Chamber issued the order on the modalities to be followed by court-assigned counsel.

Thereafter, on the 7th and 8th of September, we called the first of five witnesses in the accused's trial, working from a witness list that had been filed under Rule 65 ter, which is where an accused gives notice ³³¹⁹⁵ to the Trial Chamber and the Prosecution details of those witnesses that are not protected. And during the run-up to the presentation of the Defence case, during the period of several adjournments from May until August, the accused had filed five schedules of witnesses, detailing witnesses to be called by him at the start of the commencement of his trial. They amounted, in all, to 50 identified witnesses. The first witness we called, Ms. Avramov, was on the accused's list of witnesses, was in The Hague, and had been seen by the accused prior to being seen by us and a proof taken from her. She was asked if the accused had said to her whether or not she should be a witness called by assigned counsel, and she stated that the accused had left it to her whether or not to give evidence. And we looked at that as being perhaps an indication of some form of cooperation in the conduct of the Defence that perhaps could be worked upon to enable a Defence case to proceed involving us.

The witness gave evidence, and prior to her giving that testimony, I had asked the Court whether the accused could question her first, and the Trial Chamber decided that the order on modalities was clear, that that should be a function carried out by me first with the accused following. And I had made the application because I felt it was in the best interests of attempting to get a Defence case running smoothly if the accused could be given the lead hand in the calling of the evidence and dealing with issues of strategy.

That was not accepted, so I called that witness, and the accused, at the end of my examination, refused to take part in the questioning ³³¹⁹⁶ himself and criticised the way I'd presented the case. And meanwhile, we had set about an appeal against the issue of the assignment of counsel in the first place, and the Trial Chamber had issued its certificate for appeal.

We then called a second witness and the procedure followed that as before. This witness was Mr. Jatras. We saw him after he had been seen by the accused. We asked him whether he had been told not to cooperate with us. He said that had not been the case, the accused had left the matter up to him. And so we called that witness, and again at the end of it, the accused refused to exercise his right of questioning and criticised assigned counsel.

This matter was repeated with the next three witnesses; Mr. Keith, Mr. Hutsch, and Ms. Kanelli.

During this time we had made ourselves available to the accused at any time for him to meet with us and cooperate. There was one occasion when we telephoned the UN Detention Centre and indeed attended the detention centre that afternoon to be available if he wished to see us, and it was quite clear he did not.

We set about the task of being involved in putting into some sort of order the Defence's case, and I proceeded to go through the Rule 65 ter filing of some 1.631 witnesses in an attempt to try and understand the strategy and the issues to be presented as well as divide the witnesses into groups for the indictment - Kosovo, Croatia and Bosnia - in accordance with a direction of the Trial Chamber that the Defence case should be presented in an orderly matter, concentrating on each section of ³³¹⁹⁷ the indictment separately, obviously understanding that there would be crossover witnesses.

It was quite clear that that task of attempting to have a clear Defence that could fit into the time allocated of 150 days for the Defence case was going to be impossible from the base witness list of over 1.600, and we decided to divide the case into three, allocating what we could think of as being a 50-day strategy for each section of the indictment. To do that, we requested from the legal associate to the accused, Mr. Tomanovic, his assistance, which he gave on the instructions of the accused, which was the -- a list of 140 priority witnesses for the Kosovo phase of the case. And the Trial Chamber will be familiar with that document, as it has been reproduced several times since the end of 28th of September when we have filed each week an update of the developments in the Defence case to keep the Trial Chamber informed as to how our role was progressing as assigned counsel.

The provision of that list on the 20th of September in a way gave us some hope that bridges could be built here and a Defence case could perhaps be presented in a mutual fashion between the accused and us. Drawing on my experience as amicus curiae, where the accused rejected us right at the start of the trial proceedings but we were able to build up a cordial but informal relationship during the conduct of the Prosecution case, we had hope that we might be able to assist the Court in getting the Defence case presented in a way that was in the best interests of the accused.

Meanwhile, our filings were made appealing our appointment to the ³³¹⁹⁸ Appeals Chamber, and we responded to motions by the Prosecution, and we embarked on a -- on an exercise of trying to contact as many witnesses as possible to see if they would cooperate with us and maybe we could get to a position which would enable us to, if we were lucky, have the accused cooperate with us as well. It was quite clear that there was a wholesale reject, in fact, by witnesses of us performing our function and that we were building up to a situation where our functioning as counsel, assigned counsel for the Defence, was becoming impossible. During our case preparations, much research was undertaken on the identity of witnesses, the means of contacting them, the putting into shape a strategy for the Kosovo section of the indictment based on the 140 priority witnesses identified to us, and all the while hoping that in some way we could assist the Court by fulfilling our function. The fourth and fifth witnesses were called, and by that stage we had really run aground and run out of immediately available witnesses. Furthermore, one witness whom we had available, a man called Mr. Hensch, the Court will remember this, was nearby in the jurisdiction, to the jurisdiction, and we were going to call him as a witness but we received an instruction not to do so, which came from the accused. The fifth witness who was called, Ms. Kanelli, at the end of my examination of her, the accused asked a single question, which I don't think anyone else understood, but the witness appeared to understand, as to whether the case had properly been dealt with by me. "Has everything been covered," I think was the phrase that was used, that was discussed, and she said no. I saw her afterwards, and she apologised for what had ³³¹⁹⁹ taken place. I knew that we were then running into areas of conflict that was making my particular task impossible.

Meanwhile, the Appeals Chamber had indicated an early and expedited hearing of this matter, including an opportunity for the accused to orally make his representations to the Tribunal, and that proceeding took place. And I had to refer to the conflict that assigned counsel was in with this accused, and those are detailed in the transcripts that have been supplied, as well as the terms of what was said. During the course of those five witness, we'd been called on two occasions. The prosecution, our professionalism had been criticised, and we were, in respect of what would have been hoped to have been achieved by assigned counsel, which includes a number of duties such as to communicate, discuss a case, we were in a position where we had crossed the rubicon and there was no going back. The relationship between us and the accused had completely foundered and was not in any way in the future, in our view, going to be restored to a place that it had been at prior to the assignment.

As a result of that, we made our filing after the Appeals Chamber hearing. We viewed this as being a distinct issue from that of the assignment, and it dealt with our personal position and what we had found.

JUDGE ROBINSON: Mr. Kay, you must have anticipated non-cooperation or the possibility of non-cooperation and non-instruction from the accused. It couldn't have come as a surprise to you. So I take it, then, it is -- is it the reality of the non-cooperation and the lack ³³²⁰⁰ of instructions that has created the problem? It seems to me that you can't say that this was not envisaged.

MR. KAY: We had predicted it, as the Court has been referred to in the filings. And the Prosecution take exception to us, when we were amicus, notifying in our filings as far as possible what we could foresee happening.

We had drawn the Court in legal argument, the Court's attention to the provisions of the Code of Conduct. I remember having a discussion with Judge Bonomy about it as it being something that we had to pay regard to. But the position was then that you never know in a criminal case what is going to happen. You can't always say it will never work. It may have worked. And we tried, in a spirit of cooperation. All services within this Court were directed in that direction. Everyone was anxiously looking to see if there was to be a cooperation and whether we could make something work.

JUDGE ROBINSON: Are you saying, then, that you accepted the assignment on the basis that there would be cooperation, although it was clearly envisaged that there would be lack of cooperation and lack of instructions?

MR. KAY: Yes. It was done in good faith both ways. It was done in -- there was great pressure on us to accept the assignment. The Court will remember a deadline by 1.00 on the 3rd of September. We felt with our history, knowledge of the case, a sense of professional duty and obligation to fulfil that role. If we had not attempted to do it, the Court would have been faced with bringing in a new ³³²⁰¹ assigned counsel who may not have viewed the case from our perspective, having been involved in it right from the beginning, who may not have taken an appeal against the assignment in the first place. We felt that we were in the position to act in the accused's best interests to try and make the Defence case work. And we were aware that it might -- it might not succeed, but we were hopeful.

JUDGE ROBINSON: But there was nothing in the assignment to you and your acceptance of it which would have indicated this hypothesis that you accepted the assignment on the basis that you would be able to have a good working relationship with the accused. It was clearly envisaged that there would be -- that there might be lack of cooperation and lack of instructions. I mean, in fact the order which I made at the end indicated that the modalities order would be made broadly, following the very outline that you yourself had presented, paragraphs 4, 5, and 6 of which all anticipated the possibility of lack of cooperation, lack of instructions.

MR. KAY: I will tell the Trial Chamber what the problem was: You made me go first. And if you had permitted the accused to go first, I think I could have made this work. And it came as a complete shock to us when you reversed what we thought and what we had argued for, was that he would go first.

JUDGE ROBINSON: That's the essential problem.

MR. KAY: That has caused the foundering.

JUDGE ROBINSON: Well, then thankfully we have a system in the Tribunal which respects the rule of law. You appealed that, and that has ³³²⁰² now been corrected.

MR. KAY: Yes. On the 7th of September, the Trial Chamber will remember I stood up and asked for the accused to go first. We were very fearful of that order on modalities, and I reopened the issue again. I argued, on the 7th of September, against that which had been ordered. And it may well have been then that we could have got it to work. We've now moved on such a distance that problems have arisen which has caused an issue between us and the accused on a professional basis. And then when you examine it -- sorry, My Lord.

JUDGE ROBINSON: You just said that the essential problem was the sequence.

MR. KAY: Yes.

JUDGE ROBINSON: And that has now been corrected.

MR. KAY: Sometimes --

JUDGE ROBINSON: So what now then is the basis for your application?

MR. KAY: I don't know whether you -- did you want me to go -- I mean, our basis is the position that we've had to face in a breakdown of the relations with the accused that I feel, having been accused of unprofessional conduct. The accused has filed a complaint against me with the Dutch Bar, citing the jurisdiction relating to --

JUDGE ROBINSON: The accused has also accused me of taking instructions.

MR. KAY: It's very different for Your Honour. I am here in a position where there's trust. To view our positions in a -- in the same ³³²⁰³ way is -- is, in my submission, wrong. We are here in a particular capacity, and in attempting to fulfil a role, there is a great issue of trust and confidence. Sometimes you can get a bad order, and I'll put it like that, but you can still make it work. We've all had experiences of this, Judges making orders, and you work within it and you can make it work.

We felt that we could still have a go at making it work, but when the Court refused to allow him to go first, when the Court refused my application, I think on the 15th of September, to stay the proceedings until the Appeals Chamber had heard the matter, that was a last ditch attempt by us to try and stop eroding any further the relationship and the position that we were in. But as I said, things have developed and moved on from there. And although we attempted and we hoped that we could make things work, we were presented with a -- with a modality that undermined us. It may well have been that the accused, having gone through the whole process of the hearings concerning whether he was assigned counsel or had stand-by counsel, whether he represented himself, having gone through that whole process, we may have been in a position to influence the structure of his case, help those helping him.

We had seen ourselves as providing at that stage something that could have been a valuable service in assisting in the presentation of the Defence case, but it would have required the accused being in the driving seat and being able to deal with his witnesses in his manner and then us maybe assisting in questioning but using our tact and discretion in the performance of our role in his best interests, to help him with his ³³²⁰⁴ defence case.

JUDGE BONOMY: Mr. Kay, what do you mean by paragraph 5 of the document you presented to us, which said: "In the event of the failure of the accused or any persons acting on his behalf cooperating with assigned counsel in the production and calling of witnesses identified by the accused as potential witnesses in his case, assigned counsel may call those witnesses or any other witnesses deemed by him to be relevant in the case"?

MR. KAY: That was at a stage when we were very much at the Last Gasp Saloon concerning the rights of this accused to represent himself. And if you notice in paragraph 3 --

JUDGE BONOMY: No. The question is what did you mean by that paragraph?

MR. KAY: There could have been circumstances in which the Court might have said there were conditions that we could have called witnesses on his behalf. We had discussed this in the hearing. I remember suggesting allow him to represent himself, it's his decision. If he's ill, allow a stand-by counsel to call witnesses on his behalf. At that stage, it may have been that that kind of order could have worked.

JUDGE BONOMY: But that particular paragraph, Mr. Kay, envisages the most extreme failure in cooperation. And you produced it.

MR. KAY: It depends how it would have arisen. I was asked at the last minute to draft modalities that I had been arguing against in the first place. So I was very much influenced by the conditions of the ³³²⁰⁵ argument that the Trial Chamber was advancing on these issues. I couldn't have written my own document, which would have been, "Let him conduct his case and assigned counsel does nothing." It wouldn't have been accepted. We weren't in that territory on the 3rd and 2nd of September.

JUDGE BONOMY: I'm afraid I'm not understanding the submission you're making at all.

MR. KAY: Oh, I'm sorry.

JUDGE BONOMY: This is what you indicate was one means of implementing the assignation or the assignment of counsel, and you have envisaged in producing this document that counsel might get no cooperation from the accused or those who work with him. And you must in these circumstances have known that the appointment could involve a requirement on you to ask questions initially, examine witnesses, and indeed examine witnesses that you'd called yourself, witnesses that were not even included in the initial 1.631 witnesses.

MR. KAY: We had raised the issue that he should call his witnesses first. This Court was looking at it very much as a carrot and stick operation. I remember His Honour Judge Kwon asking the question, "What about stand-by counsel, Mr. Milosevic?" Putting that forward as a way of perhaps encouraging a stand-by position. We did not know what Your Honours were going to decide on the matter. But on that matter, we had wanted the accused to present his evidence first. That is why we made the application. You refused that application. We felt that that would have been a way of making this case work. Who knows what would have built up over the six months or three months between us and him. And we approached ³³²⁰⁶ that in good faith, and we were hoping that we might be able to help him in his best interests in the presentation of his case. At the -- what we have tried to do doesn't work, and we are telling you that that is now in breach of the Code.

So it's not a question of blaming people here. It's a question of recognising that which has happened and which causes the Court and us difficulty. It's not an issue here of blame. We were attempting to make this case work, the Trial Chamber wanted it to work, and we put ourselves in a position to try and put a proper effect into that order. We had discussed the issue of instructions in argument before. The Trial Chamber knew our position in relation -- we'd raised all these issues as to instructions, dealing with witnesses, all those difficulties, the Code of Conduct. We had alerted the Trial Chamber to that. The order on modalities that was eventually drafted put us in the driving seat instead of him, and it put us in the position of having to get the witnesses instead of him. If he had been going first and producing the witnesses and dealing with the issues of law as they arose, as our paragraph 2 gave him full responsibility, it may well have been possible, but it wasn't followed, for us to have been able to continue this case and develop and build a relationship, which often happens in a criminal trial. That's what we were hoping to do. We have been now forced to recognise the position, with non-cooperation of witnesses, the accused's position over the matter, which has been trenchantly put, as well as in our argument on his behalf, which, if you like, lit the blue-touch paper when we were in the Appeals ³³²⁰⁷ Chamber and we had to say what we said, that we didn't represent him, we didn't put his Defence case, it wasn't our Defence, it was his Defence, and that he should have his right restored to him. The problem now is that us being in the position we're in after that two-month period, we are in professional difficulty that is open to criticism.

JUDGE ROBINSON: I'm not sure that I agree on that. Where an accused person unilaterally takes action that destroys the trust between himself and his counsel through lack of cooperation and otherwise, I am not sure, Mr. Kay, that the jurisprudence is that there is any breach of the code in those circumstances.

If you read Blagojevic, there are paragraphs in it in which the Appeals Chamber affirmed certain dicta from the Trial Chamber which clearly suggests that there is no breach in those circumstances.

MR. KAY: If we look at the law on the subject and see what conflict we're in, our submission is we are in a very difficulty -- great difficulty.

I appreciate, and I think I'm right in saying this, that the Trial Chamber is going to be looking at the modalities again, that the issue concerning the case strategy and the running of the case is going to be back with the accused in accordance with the ruling in paragraph 20 by the Appeals Chamber.

We now, if you consider our position under Article 10, have to preserve our own integrity and that of the legal profession as a whole. We are now forced to be the subject of a complaint to a Bar council which ³³²⁰⁸ has claimed jurisdiction over the matter, which is a matter of great concern to us; criticism by the accused over our role in the case, the description of being a prosecutor, none of which happened when we were amicus curiae.

JUDGE BONOMY: But, Mr. Kay, you're rather assuming that there's any substance to the complaint. I mean, the complaint is -- from -- is it from an attorney here representing Mr. Milosevic?

MR. KAY: Yes.

JUDGE BONOMY: And he says he's acting on behalf of Mr. Milosevic.

MR. KAY: Yes.

JUDGE BONOMY: Does he say he's acting in this case on behalf of Mr. Milosevic?

MR. KAY: He has power of attorney.

JUDGE BONOMY: For this case?

MR. KAY: For this case. He filed the complaint against the amicus curiae Wladimiroff, and Mr. Wladimiroff was subject to the proceedings, disciplinary proceedings, under the Dutch Bar. So the Trial Chamber on that occasion, given that issue and that conflict, said justice must seen to be done. And that's the territory we're in now.

JUDGE BONOMY: Let me be clear first of all. Are you saying that a Dutch attorney --

MR. KAY: Yes.

JUDGE BONOMY: -- has a power of attorney to act for Mr. Milosevic in the present trial?

MR. KAY: In this -- sorry. There's a misunderstanding. To ³³²⁰⁹ appear in this --

JUDGE BONOMY: Yes.

MR. KAY: -- these proceedings. I doubt it. I don't know, I've never seen that.

JUDGE BONOMY: Where is the difficulty that is caused by the fact that a complaint is made? We're all often subject to complaints, whether formal or informal, about things that are done. Appeals are taken against Judges' decisions. That's a form of complaint. The routine method of dealing with a dissatisfaction over a representative, either a counsel or solicitor, is to make a complaint. That doesn't mean to say there's any substance in it, that it's right. So why is that at all relevant to what we are considering?

MR. KAY: Because your relationship as a Judge is very different with the accused. You are in a position of control. We have a duty of loyalty. We have a duty to communicate. We have a duty to understand the objectives of Defence. It is a close fiduciary duty, and it is very important that that be recognised.

JUDGE BONOMY: And is the complaint -- sorry. Is the complaint about the way in which the -- these trial proceedings are being conducted by you?

MR. KAY: Yes. I received a communication yesterday - it's dated the 3rd of November - from the Dutch Bar, referring to the Appeals Chamber hearing and the decision made by the Appeals Chamber on the 1st of November and responding that the person writing the letter could see no further ground in the complaint but giving the opportunity to the ³³²¹⁰ particular attorney to make representations further on the matter. So thus far, thus good on that issue.

JUDGE BONOMY: And what jurisdiction do the Dutch Bar have over you?

MR. KAY: The jurisdiction is a European jurisdiction, that under the European legislation, visiting lawyers from fellow Member States of the European Union practising within the Dutch courts are subject to the Dutch disciplinary code.

If you look at the host agreement, Article 19, paragraph 3, there appears to be an exception relating to disciplinary proceedings against counsel as not being exempt from the host agreement. And that is why the dean of The Hague Bar - it's not someone I know practising in these Courts - but the dean of The Hague Bar stated originally in correspondence -- or accepted jurisdiction of the matter, citing as well the example of Mr. Wladimiroff and how they accepted jurisdiction in relation to that matter against him. Now, it may be that there is a lacuna here.

JUDGE BONOMY: But he -- he would be a member of the Bar here.

MR. KAY: Yes. But the point is --

JUDGE BONOMY: Is that not the difference?

MR. KAY: But we are subject to the European regulations, that lawyers visiting -- I don't believe it's founded at all, Your Honour, and that's not the -- I'm not saying it is founded, and it's not actually the point. The point is -- and I'm going to fight that tooth and nail when we get time to turn our attention to it.

JUDGE BONOMY: But we have to ask ourselves the question, Mr. Kay, ³³²¹¹ who's running this Court? What you're suggesting is that any mischievous complaint that might be made might be a reason for disrupting the proceedings.

MR. KAY: No. What we have here is a -- a history, something that has developed over the last eight weeks, and I am -- I'm not covering things up. I'm being transparent, and I don't think that we should be criticised for this. I think that the Trial Chamber should be pleased, and the Prosecution, that we have raised ethical issues on the role of assigned counsel and our personal positions that enable them to consider judicially what is right and appropriate. And the arguments I advance are as a result of reflection of our position, consideration of justice being seen to be done, and the Court being able to understand and recognise our position.

The Court must realise the proceedings -- of course you realise, that came out wrong.

What happens in here is -- goes around the world and is observed very, very closely and attentively, and people ask the question, "Well, what did you do? Why did you do that?" We constantly get matters and issues referred to us. And if we were less than transparent about this matter, it would not reflect well on this Tribunal. And what we have set out here is a history of our period as assigned counsel, the several matters that arose and occurred that we feel, having considered them, that if this accused wanted to use assigned counsel for any particular reason, if he wanted to, if in six months or one year he wanted to, we feel that the matters that we have raised, it could be said, would have militated ³³²¹² against that position.

The more neutral role that we had as amicus curiae did not cause that conflict, because our role was one of assistance to the Trial Chamber, assistance to the accused, and it did not have the same fiduciary duty that the client/attorney relationship has.

Judge Kwon, sorry.

JUDGE KWON: Let me put to you a very simple and pragmatic question at this stage. Before that, I have to mention for the record that I don't remember I mentioned the stand-by counsel to Mr. Milosevic. What I said, as I remember, was that I recommended him to invite his associate to come into the courtroom.

And my question is whether the relation -- your relation with the accused, is that not the kind of one that can be restored now we have the Appeals Chamber decision and setting aside the issue of paragraph 20, whether your relation can be restored or not? Can I hear from you on that matter.

MR. KAY: It's going to be you'll have to ask him that, because we would always seek to make our services and expertise available. That's what we've been doing for the last three years. And in many respects, our concern for our position now is that our previous status, if you like, or the way we were regarded has been undermined.

JUDGE KWON: Then is it your position that if Mr. Milosevic does not object to you, your existence or your role, then you are ready to withdraw your motion for withdrawal?

MR. KAY: Well, we would have to be acting explicitly on his word, ³³²¹³ then, and that would be something that he would have to engage in. I think Your Honour's got to a very sharp point on the issue. We are having to present this half in the abstract because we've got no instructions, we've got no information. We have just seen that we are subject to criticism that make it difficult for us to perform the role.

If -- if they were to be restored, it would have to be through the conduct of Mr. Milosevic. And I think it would be wrong for me to stand here and say I think I can work on this and make it restored, because the evidence now I've been able to assess and receive the experiences that we feel this matter should be considered in the way that it is being raised. But, yes, if restoration was able to take place, then obviously that would, so to speak, be a cleaning of the slate. You can often have that with a client in a case. There may be criticism over something, but then you deal with that. But this has been a different form of criticism. It has been one of attack rather than criticism. It has been one of alleging professional misconduct, not calling evidence that should have been called, which we have not appreciated, and one has to consider one's professional reputation in this matter.

Pointed out to me, because I was going through the summary of the breaches that have been alleged, that we set these out in the last paragraph, 56, of our motion filed yesterday. Very different from the Blagojevic situation which we cited earlier.

Some of these go to the role of assigned counsel, and in many respects would reflect on any future modalities. It is the professional ³³²¹⁴ criticism that can be the base point, if you like, of the whole issue. I don't want to stand here for an accused and seek to represent him and his interests if he's going to think I'm unprofessional, if I'm no good at my job, he doesn't want my expertise or anyone associated with me, and he doesn't want the benefit of our advice. And to think that you may turn to me and ask me for advice and representation on matters, not as an amicus here, which is distinct, but in the position as an assigned counsel. And my own standing is the subject of dispute by the accused.

JUDGE BONOMY: So does it boil down to paragraph 4, or point number 4?

MR. KAY: Yes. After you take out the modalities issue, I think Your Honour Judge Bonomy has that right as the base point. Once you take out the modalities issues --

JUDGE BONOMY: Mr. Kay, looking at 3, it may be that I have, on this one area, some advantage over others here in having had to read everything that's happened in this case fairly recently, and it seems to me that there's loads of indications in the way in which the case has been conducted by Mr. Milosevic about the lines that ought to be pursued by any counsel representing him and his -- and presenting his Defence. I quite accept that there may be doubt about the relevance here of many of the things that are raised, but it's clear that there are many which are directly relevant and relate to subjects on which it would be important for evidence to be led, and they're identifiable by anyone reading the documents.

So I have difficulty accepting that as an example, that's point 3, ³³²¹⁵ that counsel would be able to identify how to go about the best presentation of the case.

MR. KAY: To protect the accused's best interests. What we've learnt is, in our research and experience, that he views the case probably very differently from the way that we would view it, and he is the guardian of his best interests.

In a way, we're getting back to how assigned counsel should work and the problems over instructions.

JUDGE BONOMY: His best interest can plainly be assessed objectively in the situation in which you find yourself. It's not a subjective matter when counsel has been assigned to a -- rely exclusively on what the accused perceives as his best interests.

MR. KAY: It -- it goes to this: I mean, counsel owes a duty of loyalty to the client. If we go to our Article 14. Counsel owes a duty of loyalty to a client. If he's going in one direction, you want to go in another, you have no choice.

If our plight is considered, counsel shall advise and represent a client until counsel's representation is terminated; when representing a client, counsel shall abide by the client's decisions concerning the objectives of representation.

We discussed this in oral argument on the 2nd of September. Consultation with the client about the means by which those objectives are to be pursued, seek or accept only those instructions which emanate from the client.

There is nothing here that entitles you, once you've reached a ³³²¹⁶ certain position, to start to do your own case. That is the trouble that we have fallen into. We can --

JUDGE ROBINSON: Mr. Kay, Article 8(B) of the code.

MR. KAY: Yes.

JUDGE ROBINSON: Article 8(B).

MR. KAY: Yes.

JUDGE ROBINSON: Which says that counsel shall consult with a client about the means by which those objectives are to be pursued but is not bound by the client's decision.

MR. KAY: Yes.

JUDGE ROBINSON: Moreover, what I said to you earlier ought to be considered. Every single one of the grounds set out in paragraph 56 results from the refusal of the accused to communicate with you or to instruct you, and you have to consider what the jurisprudence is in those circumstances. You haven't addressed that, and I'd like the Prosecution to address that arising out of Blagojevic. It is not clear at all to me that the jurisprudence of this Tribunal is that in those circumstances there is any breach of the code. So it's not appropriate simply to cite provisions in the code without reference to case law which is interpretative of those provisions.

Another issue that worries me, Mr. Kay, about the position you're taking is that the Appeals Chamber has now made an order in two parts. In the first part, it affirms the right to assign counsel to the accused. The second part, it reversed the modalities.

If it is right to assign counsel and counsel has been assigned and ³³²¹⁷ the accused refuses to cooperate with that assigned counsel, isn't the effect of your submission then that no counsel can effectively be assigned to the accused once he refuses to cooperate, so that the Appeals Chamber's decision in its first part would simply not be implementable.

MR. KAY: Yes. The problem is that you've got to abide by the client's decisions, and if his decision is not to instruct you and you do nothing in his case --

JUDGE ROBINSON: That is not the case law, as I have been trying to tell you. Mr. Kay, it is not the case law. You are reading the code and the provisions in vacuum. They don't exist in a vacuum, as you well know. You have to read them and interpret them against the background of the cases.

MR. KAY: Blagojevic was a very different case, Your Honours, than this. Entirely different case on the facts. I don't think a single commentator, legal commentator, would put these cases on the same platform as to how they arose.

JUDGE BONOMY: Is it not correct, though, to say, Mr. Kay, that in Blagojevic counsel was regularly subjected to criticism?

MR. KAY: The defendant filed a motion to have his lawyers withdrawn and replaced, alleging deficiencies in the quality of legal assistance they provided to him. No factual support was found for those allegations, and indeed they had had 350 hours of consultation between counsel and the accused, and he raised the issue at a late stage, after that period of consultation.

He based his motion on a personal preference over who was to ³³²¹⁸ represent him, and the Registrar could see no purpose in allowing that facility, the accused having had a relationship with the attorney, the issue arising in a late stage, and then him saying he wanted another counsel instead of the team that had been assigned to him and who had worked on his case and presented it.

We're not saying you can't assign counsel, as I've -- as I've said. It's what you ask them to do, which is a separate matter, really, from what we're dealing with at the moment, which was the issue of our application to withdraw. That's rather more the modalities.

JUDGE BONOMY: Is it really a question of what you ask counsel to do? Is it not a question of what the accused decides to do, the way you're putting it? Even if the order had been made in the form that you sought or that you now say it would have been more appropriate, what happens if it's not implemented?

MR. KAY: If the counsel just doesn't follow the Trial Chamber's modalities.

JUDGE BONOMY: No. If the accused decides he's not going first if somebody's following him second.

MR. KAY: Yes. If the accused decides because he has that particular role in the case and he wishes to represent himself, his instructions in relation to the witness and the objectives of the case must be paramount. And that again is going back to the arguments that we were making on the whole issue of the assignment of counsel.

JUDGE BONOMY: But that simply means that it's up to the accused to decide whether he has counsel or not, and the Court is powerless ³³²¹⁹ against his extreme actions to impose counsel.

MR. KAY: Well, we've -- you can assign counsel, but it's what you ask them to do, and if they're in conflict with the Code of Conduct, which is not the same position that we have here as in the Blagojevic case where it is quite clear now where we stand, at the start of the Defence case, over who is going to be in possession of the objectives of the case. If we have a Code of Conduct for Defence counsel which has been worked out with the Judges and all parties, what is the point if it is going to be, at the convenience, almost, of the Court, overwritten. This Code of Conduct actually tells us to stand firm in relation to these issues, which is exactly what we're -- we are doing, because in making us his assigned counsel, we have a duty of loyalty to him. If he expresses, "I don't want you to do anything," that is an instruction that you have to follow, because that is what the Code of Conduct requires of you. That is what all the international Codes of Conduct require you to follow. And we have cited not only the Code of Conduct of this Tribunal, also the Code of Conduct from the English Bar, the various papers deriving from international bodies, such as the IBA. And I was actually on the working party for the draft Code of Conduct for counsel for the ICC filed -- created by the IBA.

All these duties of counsel -- it's no one else, it's just counsel, all these duties require counsel to follow the accused in the case in his objectives and what he wants done. And if that is what he wants done, that is his responsibility. All of the international provisions state that quite clearly, and this Tribunal has to pay regard ³³²²⁰ to what also is out there, what also --

JUDGE ROBINSON: No. I'm going to tell you what the Tribunal has to pay regard to, and I think this is the fundamental flaw in your argument. All of those codes which are national codes are subject to our Statute and to customary international law. The fundamental duty of the Chamber is to ensure a fair trial, and every single provision in all of those codes is subject to that provision. That is the fundamental weakness in your argument. They are trumped by the duty and the obligation of the Trial Chamber to ensure a fair trial.

MR. KAY: With respect, Your Honour, they're not trumped by that. They are part of the fairness of the trial, because they govern and regulate the rights between the accused -- not between the accused and the Judges but between the accused and counsel.

JUDGE ROBINSON: They are to be interpreted and applied subject to the customary international law obligation of a trial court to ensure a fair trial. They are to be interpreted in that context. That is a contextual interpretation that is called for. So don't cite them as though they exist in a vacuum. They do not exist in a vacuum.

MR. KAY: They exist, Your Honour, as in any court anywhere, as the duties of counsel. Any court anywhere has to provide for a fair trial.

JUDGE ROBINSON: Mr. Kay, I'll tell you why I think you're wrong. You're wrong because it is competent for a Trial Chamber to assign counsel. You're wrong if you say that if you acknowledge that competence but then go on to say that it is not implementable because an accused ³³²²¹ person is going to take a particular position not to instruct or communicate with his counsel, then you nullify that competence if that is correct. In that case, that makes total nonsense of what the Appeals Chamber has said, which is that it is competent to assign counsel. We can assign counsel and follow every single directive of the Appeals Chamber, and the accused or an accused can still withhold communication with his counsel. What then is the position? What then is -- this is what I'm asking you. What then is the position?

MR. KAY: And I'll answer it, Your Honour. This is the -- this is the position: This is the extreme end of the scale. Legal aid counsel are all assigned counsel throughout every jurisdiction. In our own jurisdictions, when we get a murder brief, whatever court, we are assigned as counsel. It generally works; 99.9 per cent of the time it works. We are at the extreme end of the scale here, which does not nullify the principle of assigned counsel. That can still remain, and the Court may choose to implement that form of assignment, but it is what they do which is at issue.

You are wanting a lawyer to come in here and do things that the accused doesn't want the lawyer assigned to him to do, and every code, which is customary international law, says that is wrong and that we should stand against that.

JUDGE ROBINSON: Mr. Kay, we now have a ruling of the Appeals Chamber which the Trial Chamber is obliged to follow and implement, and the Appeals Chamber has said the accused is to examine his witnesses first. He is to brief his witnesses. He is to prepare them. He is to ³³²²² make submissions on law. He is to make a closing address. It puts him at exactly the same position where he was before. But they also said that there is a right to assign counsel. The two things have to coalesce. The two things must run on parallel lines.

MR. KAY: I haven't disagreed with that. And the Appeals Chamber say that, "If Milosevic's health problems re-surface with sufficient gravity, however, the presence of assigned counsel will enable the trial to continue even if Milosevic is temporarily unable to participate." They haven't considered the Code of Conduct. They don't refer to the Code of Conduct. The argument before them was of the assignment in principle, which the accused wanted to be taken in principle. That is why these two issues are distinct.

We were arguing against the fact of the assignment. That we took. Your order of the 3rd of September. The Appeals Chamber was not considering the issue of how it was going to work in the future. That is something that is an obiter dicta concerning how they might see it working. They haven't referred to the Code of Conduct. We weren't arguing at the Appeals Chamber point what had happened from the 3rd of September onwards. The Prosecution didn't want us to have included within the ambit of the appeal the issue of the modalities.

JUDGE BONOMY: You did include it, though. You did include it.

MR. KAY: I did include it, but they argued against it. That is how narrow --

JUDGE BONOMY: Yes, but it was the basis upon which the appeal was successful. ³³²²³

MR. KAY: That is how narrow --

JUDGE BONOMY: It's the basis on which your appeal was successful, was it not?

MR. KAY: The workings of it --

JUDGE BONOMY: Is there not an answer to that question?

MR. KAY: Well, yes.

JUDGE BONOMY: Thank you.

MR. KAY: But... That's the danger of approaching things this way. It's a yes, but. It wasn't on offer and discussed before the Appeals Chamber on the 3rd of September because it wasn't part of the appeal. We didn't refer to all the issues.

JUDGE ROBINSON: So all of the Appeals Chamber's conclusions on that part of the appeal are obiter?

MR. KAY: The whole issue is up for grabs again in front of a Trial Chamber in many respects, because it's referred back to you. "Reversed in part, the case is remanded for further proceedings not inconsistent with this decision," which refers to the issue of the modalities. But you would be able to say, "Well, we won't proceed now with assigned counsel. We'll take some other route in this case." You're not bound to follow that. You could make another order here in dealing with the future conduct of the trial. That is open to you. What was appealed and what the interlocutory decision concerned was that particular decision on the 3rd of September.

The Trial Chamber is able, as what it says, "The precise point at which reshuffling of trial roles should occur will be up to the Trial ³³²²⁴ Chamber." The whole thing -- the whole thing is open to review.

JUDGE ROBINSON: When you say the whole thing, that surely is an exaggeration, because they have said clearly what the accused should be allowed to do. He is to go first. He is to be able to prepare his witnesses. He is to be able to make legal submissions. He is to be able to make a closing address. Those were the essential issues relating to modalities.

MR. KAY: They have kept your decision to assign counsel, but you could -- you could say, "Well, we prefer a stand-by counsel, actually, having considered this. We think that that is more appropriate." They have affirmed your decision on the 3rd of September to have an assigned counsel but overturned the modalities. But --

JUDGE BONOMY: Mr. Kay, they plainly haven't done that. The words of paragraph 19 start: "In light of the foregoing discussion, the Appeals Chamber affirms the Trial Chamber's imposition of Defence counsel," not their right to impose Defence counsel, "but reverses its order on modalities."

MR. KAY: Yes, but you are able -- you have been affirmed in the order that you have made, which was under contest between the parties, but you don't have to stay with that order if you don't want to. If you felt it was more appropriate to move back to having an amicus, you could do so.

JUDGE BONOMY: But we can't. There are two sides to this case. There's a Prosecution as well as a Defence. We can't just unilaterally decide to do something when a decision we've already made has been affirmed by the Appeals Chamber. ³³²²⁵

MR. KAY: Well, in our submission, you are entitled to review, as you can review at any stage, decisions that you have -- you have taken. The Prosecution constantly in this case sought to review decisions. Judge Robinson has mentioned it frequently in the last three years. We hesitate to proceed in that way, but if it was felt to have a far better chance of succeeding in producing a fair trial, surely no one will stand by and criticise you for implementing something that might have a more fair application to the proceedings.

JUDGE ROBINSON: Mr. Kay --

MR. KAY: You wouldn't be arguing with me for a start.

JUDGE ROBINSON: Mr. Kay, I understand we have to adjourn now. We will resume tomorrow morning at 9.00 a.m. Thank you.

--- Whereupon the hearing adjourned at 1.51 p.m., to be reconvened on Wednesday, the 10th day

of November, 2004, at 9.00 a.m.