³⁸⁵⁷⁷

Tuesday, 19 April 2005

[Open session]

[The accused not present in court]

--- Upon commencing at 9.07 a.m.

JUDGE ROBINSON: We are here without the accused. We have been informed that the accused is ill. We received this information yesterday evening. The doctor has advised that he should not attend court. We will be getting a written report from the doctor this afternoon which should say exactly what is wrong with the accused, the nature of his illness, why he's unable to attend court, and for how long he will be unable to attend court. But in the meantime, we have to consider how the proceedings will carry on. I think we have an obligation to do that. We have the decision of the Appeals Chamber which clearly anticipated that in the event of the illness of the accused, assigned counsel will carry on. That, of course, has its own difficulties, but they may not be insurmountable. I'd like to hear submissions from assigned counsel and the Prosecutor on this matter.

Mr. Kay.

MR. KAY: Yes, Your Honours. We were informed yesterday of the indisposition of the accused as a result of his medical condition and that he would be unable to attend court today. We have no further information about it, and we've received no report, so we don't know the period of time that is involved nor the nature of the illness nor what exactly the prognosis is for the accused because it's unknown whether this is just a temporary indisposition or something that is more permanent. So we would ³⁸⁵⁷⁸ be urging the Court to forestall any decision-making as to what to do until the Court has been fully briefed with medical opinion as to what we are dealing with here.

In those circumstances, we would be concerned, because this appears to have been a very sudden and dramatic turn of events in relation to his medical condition, that the accused be entitled to obtain a medical report on his condition for himself and that that be able to be submitted before the Trial Chamber.

As I remember all the medical issues that we had dealt with last year, it seems that there is a GP, a local general practitioner who has the day-to-day supervision of this accused. That is Dr. Falke whom the Trial Chamber will remember appears on a great many of the medical reports, but he is not a cardiologist as such, and if the issue is to do with cardiology rather than a virus or any other kind of illness but the undercurrent and long-standing illness of the accused, then in our submission it would be important that the cardiologist express an opinion to the Trial Chamber. And in pursuance of that, we would also seek on behalf of the accused an expert opinion report relating to such an issue on his behalf.

The Trial Chamber will remember that in the stage of last year in the September period when we were dealing with these issues, and at the end of the August, the accused made a plea for an independent medical opinion from a source that he identified so that information from such an expert could go before the Trial Chamber.

So that is our submission on this matter as a first point to be ³⁸⁵⁷⁹ made this morning.

We move --

JUDGE BONOMY: Before you move on, Mr. Kay, do you need authority for the accused to arrange his own medical examination?

MR. KAY: There has been an issue between the Registry and the accused as to who is able to give medical attention to him or to see him for medical purposes, and the Rules, Rule 74 bis, I think it is, deals with medical examination within the Rules. Ms. Higgins has turned it up for me. And the Court will notice under Rule 74 bis: "Medical Examination of the Accused." A Trial Chamber may of its own motion or at the request of a party, order a medical, psychiatric, or otherwise examination. "In such case, unless the Trial Chamber otherwise orders, the Registrar shall entrust this task to one or several experts whose names appear on a list previously drawn up by the Registry and approved by the Bureau."

And then we have Detention Rules number 30: "Detainees may be visited by and consult with a doctor or dentist of their choice at their own expense. All such visits shall be made by prior arrangement." And it should not be refused on reasonable grounds.

JUDGE BONOMY: Does that not answer the question that he can arrange it himself? The issue before when it arose was the timing.

MR. KAY: Yes.

JUDGE BONOMY: And obviously the time -- the suggestion after everything else had been done that yet again there should be an embarkation on medical examination. ³⁸⁵⁸⁰ My -- I see no -- off the top of my head, I see no difficulty him arranging that unless there is a Rule that causes a problem. Where I do see the difficulty is the timing. It would have to be done expeditiously.

MR. KAY: Yes.

JUDGE BONOMY: Like immediately.

MR. KAY: Like all such -- such issues, they have to be grasped and dealt with. And if the Court is conscious that this is an aspect of this issue that we're dealing with, what I would say is one's got to not say that it's a race as to who gets the report in first but one must understand someone has to be instructed and expeditiously deal with the issue, which is part of the overall issue of fairness.

JUDGE ROBINSON: Your essential submission is that the Chamber should take no decision until it has in its possession a written report.

MR. KAY: Yes, at this stage. We simply don't know what we're dealing with, why it's happened. There are --

JUDGE ROBINSON: We are expecting a report from Dr. Falke --

MR. KAY: Yes.

JUDGE ROBINSON: -- this afternoon, but you mentioned a report from the cardiologist as well.

MR. KAY: Yes, from a cardiologist, because Dr. Falke was not a cardiologist. He was a GP. And there has been a reluctance throughout all his reports to express in round terms a medical opinion as to the physical condition of the accused in relation to the trial, and we can see that throughout it and that is one of the reasons why a cardiologist was sought, because it is an expert opinion that is required. ³⁸⁵⁸¹ This goes to two matters: Whether the condition is permanent and the accused is, therefore, too ill in a permanent form to attend his trial or to be tried, and there's a distinction between attending a trial and being tried, or whether this is a temporary condition with a temporary effect that will not in the overall scheme of things affect the course of the trial but is something that can be quickly absorbed. We've had experience of this in relation to the recent bout of 'flu that the accused had which people recognise is a general ailment that an accused may be subject to and, as anyone having such an affliction, unable to take part in the proceedings if it is of sufficient gravity.

JUDGE ROBINSON: What you characterise as permanent is important. The accused's condition is, as I understand it, a permanent one. It's a recurring one. It's chronic. But he's able to recover after, on the basis of past experience, a week or two weeks' rest. So he would be temporarily absent from court for that time, even though the condition that he has is a permanent and recurring one.

MR. KAY: That has been the history and condition to date. What I'm pointing out is that we have to consider this as it arises and see whether it is within that category of illness that is subject to recovery or whether it is permanent and, therefore, the accused is of such a condition that he is too sick to be tried, too ill to be tried, and courts in all jurisdictions have had to deal with issues such as that. We have at this particular Tribunal. I remember in 1996 it was General Djukic who was too ill to take part in proceedings. I can't now remember whether as a -- oh, no. He came over as a witness or thought he was coming over as a ³⁸⁵⁸² witness and became an accused.

So it's one of those issues that all courts have to balance in relation to human rights and fairness. If someone is too sick to be tried, then they are not subject to the proceedings if the requisite medical opinions are able to establish such an issue.

JUDGE BONOMY: I should make it clear, Mr. Kay, that I don't see a basis for that submission at the moment. That's a sort of submission that might be made on the strength of medical evidence you'd actually obtained but there's nothing has occurred in this trial to indicate to me that the accused is unfit to be tried at the moment or that that's an issue that requires exploration.

MR. KAY: I agree that it hasn't been an issue thus far to date, but I am raising it so that it is a pointer, because it's important that the Court has in mind all the various matters that have to be raised in relation to this issue.

If it is -- is raised, the Court then has to make its judgement whether it agrees or disagrees, but as his assigned Defence counsel, having been given the evidence that I have, which is not in the form of a medical report, it gives me a right to put before the Court this position, that it may be something serious that falls into that category and it's as well to flag that up now.

Moving on from the sickness issues which I've put before the Trial Chamber, we then deal with the current position. Again, we don't know the extent of that indisposition, and the Trial Chamber has ordered information to inform itself of what the position is. ³⁸⁵⁸³ It brings into this play whether an accused is too ill to be present in court and therefore is absent from his trial, or whether an accused is well enough to be in court but too ill to perform his function of representing himself. Two entirely separate issues. To form a judgement about that, that requires a medical opinion. And as we can say, the doctor for today certainly has said he is not fit enough to attend court, we would have to deal with the instant issue and deal with it on the basis of whether it is right to have trial in absentia under such circumstances.

The first matter to raise about that is that as the Trial Chamber has requested a report on the current issue, that before any such argument on that matter could properly be raised the Trial Chamber would need to be properly briefed as to the extent of the indisposition. However, on the issue of trials in absentia, the prevailing legal authorities throughout all jurisdictions is that in the absence of obstructionist behaviour or voluntary absconding by an accused, that it is not right to hold trials in absentia, and the procedures within the Tribunal here actually are developed and are formed on the basis that trials takes place in the presence of an accused. The Trial Chamber may be familiar with the comments by Professor Cassese, the former president of this Tribunal, writing on these matters in his book of 1999, I think it is, where the issue of whether trials in absentia should take place or trials in the presence of the accused is dealt with by him, and his opinion and commentary is that that should not take place.

This argument and debate arises as a result of the observations or ³⁸⁵⁸⁴ comments that have been made that certain leading figures who featured in the evidence here, such as Mr. Karadzic or General Mladic, could be tried in absentia, whether they could or not.

In relation to the issue of trials in absentia, this is a very major jurisprudential topic. In fact, the assigned counsel have a prepared argument on this matter.

JUDGE ROBINSON: Mr. Kay, I'm wondering whether this is the time for that submission now, because it may be that we will have to come to it, and I'd like to come to it in a much more informed way --

MR. KAY: Yes.

JUDGE ROBINSON: -- where all the parties are prepared and perhaps have made written submissions.

MR. KAY: Yes. We've got one we've done earlier, as they say, but it was prepared so that all the stages and steps within this issue are considered and considered properly and fairly so that the Trial Chamber is properly informed and advised from our part.

That's really what it comes down to at this stage and as far as today is concerned.

JUDGE BONOMY: There is, I think, in fairness, one other issue which I'm not suggesting has to be addressed at the moment, but the wording of the Appeals Chamber's determination in this was that if the problems, the health problems resurfaced with sufficient gravity, the presence of assigned counsel would enable the trial to continue even if the accused was temporarily unable to participate. So there's a script that has to be interpreted on any view here, ^{38585 BLANK PAGE 38586} even on a temporary absence basis.

MR. KAY: Yes. Ms. Higgins has put my bullet points here for me including that very phrase, Your Honour, and indeed the next sentence: "The precise point at which the reshuffling of trial roles should occur will be up to the Trial Chamber."

We do have that in mind. It is an issue of gravity, which is why I've requested that medical reports and medical reports that are competent to deal with the issue from the -- with the requisite expertise be available.

And the issue concerning the Appeals Chamber decision, which in a passage from the paper that we have written in draft is that the Appeals Chamber wasn't dealing with the point as to whether an accused should be tried in his absence or not, merely on the assignment of counsel and how that affected the rights of the accused. But maybe we haven't got to that point there yet, and I agree with Your Honours entirely, that it requires detailed submissions and reference to a wide range of authorities so the Trial Chamber is fully briefed on the issue.

But for today's matter, our view is, our submission is that there should be no proceedings today, and that the Trial Chamber should be informed of the medical condition, as I put before the Trial Chamber before, prior to dealing with this issue in full.

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

MR. NICE: Your Honour, the assigned counsel were assigned I think so far as possible to avoid adjournments, not just to apply for them, and we have, I would submit, reached the stage where it's time to look at how ³⁸⁵⁸⁷ they can fulfil the function for which they have indeed been retained. It appears, although nobody's being explicit, that there is no question but that the medical problem today is the same as the recurring medical problem that so compromised the trial last year and that was subject to various expressions of opinions, including, directly and indirectly, that the accused was in a position, if he so chose, to mitigate the consequences of the underlying condition to avoid the disruption of the trial. And it was with that in mind and all the evidence, no doubt, that the Appeals Chamber expressed the opinion and decision that it did in paragraph 20 to which His Honour Judge Bonomy has referred, as indeed now has Mr. Kay, which, in our submission, would allow this trial to continue immediately without further disturbance while medical evidence is being obtained.

The assigned counsel are here to be ready to get on with the case. Bulatovic has given evidence in chief so that my learned friends know what the accused's intention is in relation to that witness, his --

JUDGE ROBINSON: Mr. Nice, you say that merely on the basis of the dictum in paragraph 20 of the Appeals Chamber, the Trial Chamber can continue with assigned counsel in circumstances such as these, and you say that it wouldn't be necessary to -- for the Trial Chamber to inquire into the jurisprudential basis for continuing the trial in the absence of the accused.

MR. NICE: Two answers to that -- or three, actually. The first answer is yes, of course it would be desirable at some stage to inquire into the jurisprudence. ³⁸⁵⁸⁸ The second point is that it's really inconceivable in the light of the history that the Appeals Chamber didn't have in mind the situation where the accused was temporarily unable to attend court but not meeting the test of ill health such as to thwart the trial altogether. Of course they must have had that in mind.

And third, this trial is radically different from many others around the world in that there are video recordings and transcripts immediately available of all proceedings, so that the accused's interest, if any, deriving from what witnesses actually say can always be preserved by the recalling of witnesses at a later stage.

And if I can return to where we are at the moment, Bulatovic has given evidence in chief, so that my learned friends know, by attending to what the accused was doing, what his purpose was in dealing that witness. They have access to all the material so that any issues arising on re-examination should be well within their researched and prepared knowledge and understanding, and there is nothing to stop his cross-examination being concluded and re-examination happening today. The next witness listed is one who is to produce a number of witness statements subject to a particular order that the Chamber has made, and again there will be nothing to stop that being done. Other witnesses are, I believe, in the Hague, probably in The Hague according to the witness list we've got. They deal with comparatively confined matters, and there is nothing to stop the assigned counsel negotiating with, talking with the accused's associates or, subject to the extent of his medical condition, the accused himself in order to understand the ³⁸⁵⁸⁹ position and intention of the accused in relation to those witnesses and to get on with the trial.

We have to have in mind the extraordinary disruption of this trial caused last year and indeed the year before by the underlying medical condition. We have to have in mind what was clearly found by the doctors as to some of the reasons why things proceeded in the way they did, and there has to be an absolute -- not an absolute priority but a very high priority given to avoiding further delay and disruption. As I say, the accused, if matters proceed in the way I propose, will be in a position to review transcripts and video recordings of the witnesses, and although it's to some degree an expense, it's probably a trifling expense compared with the downtime costs of a day or more of this court not sitting and costs in real or other terms, and those witnesses could always be recalled, if it was justified, to answer further questions.

So my submission to the Court, given that it is clearly not envisaged at the moment that this is other than the underlying medical condition, is that the Court can, and on the basis of paragraph 20 of the Appeals Chamber's decision certainly can prima facie, press on with the hearings. There's no prejudice to the accused. Medical investigations can be carried out, jurisprudential argument can be perfected over the next few days, but there's no need to waste time now.

JUDGE ROBINSON: You would have us carry on immediately.

MR. NICE: Yes, absolutely.

THE INTERPRETER: Microphone, Your Honour, please. ³⁸⁵⁹⁰

JUDGE ROBINSON: [Microphone not activated]

MR. NICE: Your Honour's microphone is not on, by the way.

JUDGE ROBINSON: I'm sorry. I was saying that apparently you would have us carry on immediately even without -- even before obtaining the report of the doctor which we anticipate getting this afternoon.

MR. NICE: Your Honour, yes. There's a certain amount of discrete shadow boxing but I think it's quite clear to all the parties from what we do understand that this is not viral or influenza, this is the underlying previous condition, and therefore it's exactly for this that the litigation before the Appeals Chamber was heard and resolved, and every day in this court costs an enormous amount of money and every day of delay has serious effects for the trial itself and for the consequences of this trial more generally, and in my submission the time has come to be resolute and to press on.

JUDGE ROBINSON: Thank you, Mr. Nice. Mr. Kay, anything?

MR. KAY: Nothing in reply.

[Trial Chamber confers]

MR. NICE: The microphones are on, Your Honours.

[Trial Chamber confers]

JUDGE ROBINSON: We'll adjourn for ten minutes.

--- Break taken at 9.38 a.m.

--- On resuming at 9.47 a.m.

JUDGE ROBINSON: There is merit in the submission of the Prosecutor that we conclude the testimony of the current witness, ³⁸⁵⁹¹ Mr. Bulatovic. If the decision of the Appeals Chamber is authoritative for anything, it seems to us that it authorises the completion of a witness's testimony in the temporary absence of the accused. The decision that we make now, I make it plain, applies only to this witness. We'll order that the transcript and video of the evidence be made available to the accused so that he can review the testimony, and it will be competent for him to apply to recall the witness if he considers that there is any prejudice to him.

So let the witness be called, Mr. Bulatovic.

[The witness entered court]

WITNESS: KOSTA BULATOVIC [Resumed]

[Witness answered through interpreter]

JUDGE ROBINSON: Mr. Bulatovic, you remain subject to the declaration that you made.

Mr. Nice, please continue. Cross-examined by Mr. Nice: [Continued]

Q. Mr. Bulatovic, a couple matters of history. Vojvodina had enjoyed some autonomy in the Austro-Hungarian Empire and in 1946 was accorded the title of province in its autonomous status as opposed to the different title of Oblast for Kosovo; correct?

THE WITNESS: [Interpretation] Mr. Robinson.

JUDGE ROBINSON: Yes, Mr. Bulatovic.

THE WITNESS: [Interpretation] I have come at your invitation to testify here for my president, the president of the state, Mr. Slobodan Milosevic. He asked me questions in your presence, and his examination ³⁸⁵⁹² has been completed. I was cross-examined for half an hour by Mr. Nice, the Prosecutor, and I think that there are some 40 minutes to go. Mr. Milosevic is not here today, and I am a witness. I am Milosevic's witness and nobody else's witness. So without his presence, I cannot make any statements nor can I have any conversation. Thank you.

JUDGE ROBINSON: Mr. Bulatovic, the -- Mr. Milosevic is ill. The Trial Chamber has ruled that your testimony be completed in his absence. There is an assigned counsel. That assigned counsel represents Mr. Milosevic.

I should tell you that the -- we have ordered that a video and the transcript of the proceedings be made available to Mr. Milosevic. But the Trial Chamber's ruling is that the -- your testimony will be completed. You might also wish to know that it is open to Mr. Milosevic to recall you having reviewed the video and the transcript.

THE WITNESS: [Interpretation] You can recall me, although my health is poor. I invested every effort to appear here before you to testify and to give the statements that I have given, and if you recall me, I will do my best to respond to your invitation, and if there is something interesting to say here for me to say it. So perhaps I'm a witness who can say something important, but without the presence of Mr. Milosevic, I cannot accept any kind of examination. You must understand me. That for me would be a shame, it would be a defeat, and I prefer death to going home in disgrace.

JUDGE ROBINSON: Mr. Bulatovic, then you must consider your position carefully. I've explained to you that there are safeguards which ³⁸⁵⁹³ have been put in place to ensure that there will be no prejudice to Mr. Milosevic. The matter has been very carefully considered on the basis of submissions from the assigned counsel and the Prosecutor. There is a body of jurisprudence, a body of law regulating matters like this. We have a decision our highest court, the Appeals Chamber, which authorises continuation of proceedings in circumstances such as these, and you must consider your position very carefully.

If you decide not to give evidence, not to answer questions, then I must make it very plain to you that you will open yourself up to charges of being in contempt of this Court.

THE WITNESS: [Interpretation] I respect the Court, but I cannot accept, without Mr. Milosevic's presence, any further conversation.

JUDGE BONOMY: Mr. Bulatovic, you pride yourself in being a rational person. Can you explain on what possible rational ground you could refuse to answer the Prosecutor's questions when we have set in place every possible facility to protect the interests of Mr. Milosevic?

THE WITNESS: [Interpretation] Mr. Bonomy, let me answer that question straight away. I came on condition that I testify, and that's how I began my testimony, and the testimony has come to an end, was completed. Mr. Milosevic was taken ill in the meantime. That means that we can just have an agreement here for me to come back to The Hague once his health is better, or I can stay in the hotel if he's able to come tomorrow, if there are any guarantees that he will be back in court tomorrow, for example. So that would be it.

JUDGE BONOMY: I didn't understand you. Evidence is not complete ^{38594 BLANK PAGE 38595} until the Prosecutor has had a chance to ask his questions. What I wanted to know is on what rational basis could you possibly now say that it was not right for you to give evidence. You're here to tell the truth, as I understand it. The world wants to know the truth, and you want that --

THE WITNESS: [Interpretation] Yes, yes.

JUDGE BONOMY: And you want to conceal the truth purely and simply on some irrational basis.

THE WITNESS: [Interpretation] Mr. Bonomy, thank you for that insult, but I'm a civilised man, so I don't want to harm anybody, the Prosecution nor the Trial Chamber, and I shall take the insult without insulting anybody back. I think that is reasonable. And it is also a result of reason that I came to this Court under certain conditions to testify, and now that has changed. Now, I don't accept those changes. It's not that I don't wish to testify before the Court, but there's a difference there, and I think it is rational and reasonable.

MR. NICE: Your Honours --

JUDGE ROBINSON: Mr. Nice.

THE WITNESS: [Interpretation] I cannot understand that you cannot understand me. You as world men of the law are unable to understand me. I can't accept that.

MR. NICE: Your Honours, before I return to asking questions --

JUDGE KWON: Can I say something?

MR. NICE: I am so sorry.

JUDGE KWON: Can I ask one thing, Mr. Bulatovic: Your examination-in-chief is over and now Mr. Nice is cross-examining you. The ³⁸⁵⁹⁶ presence of the accused, Mr. Milosevic, has nothing to do with his cross-examination, so his absence will make no difference. If there is anything further for Mr. Milosevic to ask you in re-examination, you can come again. What do you say to this?

THE WITNESS: [Interpretation] The difference precisely lies in the fact that he was present throughout, and I came in his presence to give my testimony and not in his absence. Had it been in his absence, you could have taken the statement in Podgorica where I live as a displaced person. I could have made the statement there before a court of law and everything could have been televised, filmed by television. So there are differences, and they are great. And it would be an insult both to my family and for my brotherhood and clan for whom I have come to testify here and for the entire Serbian people and the state of Serbia. So you must understand me. You are all intelligent men, I don't doubt that for a minute, regardless of the fact that we don't seem to see eye-to-eye and cannot reach an agreement.

JUDGE ROBINSON: Mr. Bulatovic, do you understand that the transcript of the evidence and a video of the evidence will be made available to Mr. Milosevic?

MR. NICE: Can I very respectfully --

JUDGE ROBINSON: I'm asking --

MR. NICE: I realise that, but I -- very well.

JUDGE ROBINSON: Did you understand that?

THE WITNESS: [Interpretation] I understand everything. But without Mr. Milosevic in his presence here I cannot accept to continue my ³⁸⁵⁹⁷ testimony. And would you please understand that and take that on board. But I'm ready to return, although I am of ill health, but I am willing to come back once you recall me and when Mr. Nice can continue his examination. So I think this is very human, above board, honest, and that there are no problems. It's a simple matter and need not be complicated.

MR. NICE: Your Honour, I apologise for interrupting, but I was going to request the Chamber to go no further in making offers or explanations to this witness because it has already been fulsome in its explanation and the question of the Court's dignity and authority is being confronted in a direct and offensive way by this witness and it's a return to the position we had last year of the witnesses trying to control the Court which gave rise to the litigation that led to the imposition of counsel in part.

As to this witness, if he is still a witness, I think there are some matters that I should draw to your attention before I return to questioning him if I'm allowed to.

The Chamber will probably have had in mind, listening to him in chief, some rather curious characteristics that may run entirely counter to his assertion this morning that he has any respect for you. First, and the limited --

JUDGE ROBINSON: Mr. Nice, I don't think we should enter into that now.

MR. NICE: I -- if Your Honours so decide, but I'm interested to know, first of all, how it is that this witness comes armed with detailed knowledge of timings, because 40 minutes, if I was confined to precisely ³⁸⁵⁹⁸ two-thirds, would be something that would be about the right estimation. I'm not aware of that having been mentioned in court. If I'm wrong, that's a point of no significance.

But second, I am very concerned on behalf of the Court generally that -- as to the way this witness treated Your Honours on the last occasion, I can be specific about that, and this morning in respect to His Honour Judge Bonomy. And I would press the Court to be firm in its resolve to maintain its dignity and not to let witnesses control these proceedings.

The matter should not, in my respectful submission, be put off. Either the witness's evidence is concluded on the basis that he declines to be cross-examined, in which his case evidence should be struck altogether and it should stand at naught, and he should then be dealt with forthwith for contempt. It will be a disastrous precedent to set to allow witnesses to attempt to control the Court in this way. But, Your Honour, if he were to be -- to have his evidence set at naught, there would be problems for the Prosecution because I have material I wish to put to him, in particular his own words, that might be of considerable value to the Court in its unraveling of the truth of these events. And the Court will recall that when dealing with the witness Balevic, I said specifically that I would tailor my cross-examination of other witnesses because I knew that I was going to be able to ask one or two material questions, and it's only a couple of topics, of this witness. So my urging of the Court is to review the way he's treated the Court, and I can give you the details if you would wish it, to require him ³⁸⁵⁹⁹ to answer questions, and then to decide, if he declines to answer questions, how to deal with him forthwith and not to put the matter off, but also to give me an opportunity to explain at least as to one or two pieces of material, the material I would have wanted to explore with this witness.

JUDGE ROBINSON: Thank you, Mr. Nice. Mr. Kay, any submissions on this matter?

MR. KAY: I think what is needed is less emotion in dealing with this issue. The witness has not been insulting to the Court. The witness, for his part, has presented a -- a clear and reasoned basis for his position before the Trial Chamber.

JUDGE BONOMY: Perhaps you could explain the reasoned basis to me which I'm not able to understand at the moment.

MR. KAY: It is that the accused is not present today during this stage of the proceedings. It is clear that the witness regards the accused highly. That has been his approach and demeanour to the accused throughout the proceedings and as it was this morning. He refers to him still as "Mr. President." And obviously the issues in this trial that are being brought by the Prosecution against this accused, those witnesses of the accused, a number of them, take issue with the very trial itself in the same way that the Prosecution witnesses would support the Prosecution of the accused. There's nothing unusual or extraordinary about that. And so for his part, it is clear that the witness is -- is saying that this accused should be able to hear for himself the questioning and the answers that are given by him as a witness so that the accused is more fully ³⁸⁶⁰⁰ informed of the issues that are happening in his trial.

JUDGE BONOMY: But that's going to happen, Mr. Kay. I'm trying to find a rational basis for this refusal. We know that that information will all be passed to Mr. Milosevic in glorious technicolour. So where is the reason in the witness's assertion that he will not give any further evidence?

MR. KAY: It is apparent that he believes that the accused is the best person to deal with the Defence issues in the case, that the accused may want to object to some of the lines of questioning of the Prosecution, as he has done.

JUDGE BONOMY: Now you're speculating.

MR. KAY: Yes. It may well be that those are the issues within this witness's mind in looking at this issue, and that the matter of the passing on of transcripts or the production of the film, video of the proceedings are the less than satisfactory way of someone understanding what has taken place. And the witness, in our submission, is presenting a calm and reasonable position for what he is faced with today and is not in any way being insulting.

One sometimes has to accept that others don't agree with decisions that are made or other people's points of view, and that's plainly the case here with this witness. He's willing to give evidence. He's willing to answer Mr. Nice's questions, but in the presence of the accused, which he no doubt sees as fulfilling the accused's rights in full. He is plainly a man whose evidence has been given on a very narrow compass to the issues in this case. Whether the Prosecution need to ³⁸⁶⁰¹ question him on his testimony is another matter. He's given what seems to be a version of facts and evidence that is without controversy, incontrovertible, and has explained his position. He arises here as a result of the questioning of the Prosecution in relation to a witness and assertions that they made as to what people who had been present at the meetings concerning the accused in 1987, what their objectives and purposes were. And what he had to say about that was uncontroversial and it's apparent that that is his position.

Quite what material he has or brings in this Court for the Prosecutor for the moment is beyond me, and in our submission Mr. Nice is not being prejudiced by having to forego questioning in relation to this witness.

I just remind the Court there was a Prosecution witness in the early stage of the Kosovo trial. I think he was the very first witness of fact. I can't remember his name, but he was unable to continue his questioning. It may have been an illness matter or an emotional matter, and so the accused was unable to complete questioning of that -- that witness. I can't remember the witness's name, but I think it was the first witness of fact. He was a crime-base witness from the village of Celina, I think it was, and nothing more was done in relation to the proceedings.

We're not really in any too dissimilar a position here. It's difficult to see how the Prosecution are prejudiced by hearing no more from this witness at all. He is not a main player within the main issues on this indictment. ³⁸⁶⁰²

JUDGE ROBINSON: Mr. Kay, could I hear you briefly on whether in your view the reaction or non-response of the witness is contemptuous.

[Trial Chamber confers]

JUDGE ROBINSON: If you wish to comment on that.

MR. KAY: What I was going to advise is he should be instructed by an independent lawyer -- well, he should be instructed. He should instruct an independent lawyer whom he should see and be able to explain his position in a -- in relation to himself on that matter and that this matter would then be referred out of this Trial Chamber, as has been the previous procedure.

JUDGE BONOMY: Well, it's slightly different here, perhaps, from previous cases, because one issue that arises is whether the witness will give evidence, and it is necessary for this matter to be dealt with to enable the trial to proceed. And these are normally circumstances in which the presiding Court itself would deal with the contempt rather than remit it to anyone else.

Now, is there any reason why that should not be the case?

MR. KAY: In these circumstances where this witness, as I have said, is not a major witness for the proceedings, what is at stake here does not create unfairness to the other side, in my submission, as this is not pivotal evidence, it should not take place before this Trial Chamber.

JUDGE ROBINSON: Well, I was really seeking your views as to whether it should take place, but perhaps you're right, that he should have independent counsel.

What I did ask you, because you -- you are, it appears to me, ^{38603 BLANK PAGE 38604} giving an explanation for the conduct of the witness, which might go to his mens rea, and that's why I asked. But if you're not comfortable answering, then don't.

MR. KAY: Yes. Well, we've made our -- our observations on the matter.

MR. NICE: May I make just two points. First of all, this witness is actually, in the way the accused has presented his case, really quite important and capable of providing really very valuable information, whether he likes it or not, in a way that may be quite powerful as to exactly what led to the consequences of the former Yugoslavia of this accused's actions. So I don't accept that characterisation of his evidence at all.

Secondly, although I'm not going to go behind your earlier observations in response to my invitation to look at his behaviour generally, if the record of his evidence giving and if an analysis of his respect for the Court, genuine respect for the Court, needs to be considered, the Chamber might like to remind itself of the way the witness dealt with the affirmation and whether that was accidental or intentional, and his method of addressing personalities in the Court. On the question of contempt, in my submission this is as straightforward a case of blatant contempt of a Court as there can be. The Court has announced its order. The subject witness has no obligation -- no alternative, I beg your pardon, but to accept the authority and order of the Court. And if there is not contumacious refusal to answer a question, I don't know what is. And it would be our position that this is ³⁸⁶⁰⁵ an appropriate case for immediate institution of proceedings under 77(C)(iii) by the Court itself although the Court might think it prudent to give the witness one last chance of considering his position. But in our respectful submission there could be no clearer case nor one in the overall setting of this trial that more requires an immediate and firm response.

[Trial Chamber confers]

JUDGE ROBINSON: We'll adjourn until a quarter to eleven. We are adjourned.

--- Recess taken at 10.21 a.m.

--- On resuming at 10.49 a.m.

MR. KAY: Your Honours, I mentioned a witness who didn't conclude their evidence. It was Agim Zeqiri, who was the first Kosovo crime-base witness.

JUDGE ROBINSON: Thank you. Mr. Bulatovic, the Trial Chamber will give you until tomorrow to reconsider your position. That is to say we will adjourn the proceedings until tomorrow morning at 9.00 a.m. so that you can think about this matter. In that interval, you should seek advice. And in that regard the Registry should provide any assistance that the witness will need by way of legal advice.

You will need to be advised carefully, because if you maintain your position it must be clear to you that you're liable to be charged with contempt. It is also very possible that the Trial Chamber will totally ignore the evidence that you have given. That is to say the ³⁸⁶⁰⁶ Chamber will attach no weight to it at all. In the circumstances, that would almost be inevitable if the Prosecutor is unable to complete his cross-examination because of the position that you have taken. Contempt is a serious charge. It carries with it the possibility of a term of imprisonment or a fine, so please have that in mind as well.

[Trial Chamber confers]

THE WITNESS: [Interpretation] Mr. Robinson, I have in no way insulted you as human beings or as Judges nor have I violated this Court in any way. You are world renowned lawyers, and I respect you as such. The same goes for the Prosecutor, regardless of the attitude he's taking to me as a human being.

I have no other objection than being unable to testify in the absence of Mr. President. I can remain in The Hague to avoid having to come again if I am recalled if you want me to testify in his presence. That is all there is to it. I have nothing more to say. Please do not delay until tomorrow because you would exposing yourself to disgrace. I am a serious person and an honest person, although I see there are some who doubt it here.

JUDGE ROBINSON: Thank you, Mr. Bulatovic. As I indicated, we will adjourn until tomorrow morning, and the position is, as I indicated before, that you should advise yourself. The Registry should make available to you that advice by way of counsel. Mr. Kay, I'd like to find out from you whether you would be in a position to -- to continue with the next witness on the list, Mr. Jasovic.

MR. KAY: That isn't a witness that we have met or proofed, and ³⁸⁶⁰⁷ his files have only just been prepared. So it would be something that we would have to consider.

On another issue, I believe that the accused himself is willing to attend the proceedings. This is not at his insistence that he is not here. This is at the -- a decision taken by the Registry based on the medical opinion. The accused himself wants to be here and to participate in the proceedings, and I feel the Trial Chamber should know that - it's something that the liaison officer has brought to my attention - because this is an issue concerned with personal choices.

JUDGE ROBINSON: I see. We don't have that information, Mr. Kay.

MR. KAY: It may be something that in the intervening period when these matters are more -- there is more information issued to us that the accused's personal position is something that the Trial Chamber may like to consider.

JUDGE BONOMY: It's of vital importance. I mean, I'm astonished that we're now being told this, that this was not relayed to us earlier.

MR. KAY: Yes. It seems to me it's something that we need to have perhaps looked at. And I'm not in a position to confirm or deny but merely report what's brought to my attention as it does rather change matters, in my mind.

JUDGE ROBINSON: Yes. The legal officer will give us whatever information he has.

[Trial Chamber and legal officer confer]

JUDGE ROBINSON: Mr. Kay, you mentioned that you had not yet proofed -- you hadn't proofed Mr. Jasovic. ³⁸⁶⁰⁸

MR. KAY: No.

JUDGE ROBINSON: Could that be done today?

MR. KAY: Yes. We would need to meet and make an appointment and have an interpreter provided to us and consider the exhibits that have been prepared with him. That is something that we can look at today and then report back to the Trial Chamber tomorrow on that -- that matter.

JUDGE KWON: Or any other witness.

MR. KAY: Yes. I don't know who is here as well, but we can find out.

JUDGE ROBINSON: Mr. Nice.

MR. NICE: Two very short points. On Jasovic I recall that the accused was able to be ready to call him after a very short encounter, as I think he told us one afternoon, and in any event the readiness to proceed with the witness it may be should be determined on the cooperation that can be expected and reasonably expected to exist between the accused, his representatives and the assigned counsel.

Second matter, I see that I overlooked, for which I apologise, of course, reminding the Chamber to warn this witness about not contacting people about his evidence at either the first break or at the end of the session last week, and the Chamber might think it would be prudent to clarify the position with him.

JUDGE ROBINSON: We are going to adjourn until tomorrow morning at 9.00, Mr. Bulatovic, and I remind you not to discuss the evidence, not to discuss the case with anybody. Do you understand that?

THE WITNESS: [Interpretation] Yes. ³⁸⁶⁰⁹

JUDGE ROBINSON: If a counsel is assigned to you for the purposes that we discussed, then quite clearly you'll be able to discuss that issue, that particular issue with him.

We're adjourned until 9.00 tomorrow.

--- Whereupon the hearing adjourned at 11.02 a.m., to be reconvened on Wednesday, the 20th day of

April, 2005, at 9.00 a.m.