³⁸⁶¹⁰

Wednesday, 20 April 2005

[Open session]

[The accused not present in court]

--- Upon commencing at 9.05 a.m.

JUDGE ROBINSON: I'm going to deal first with the wider issues relating to the trial and secondly with the specific issue that relates to the witness Kosta Bulatovic.

Yesterday when we adjourned, we were awaiting a medical report on the health of the accused Slobodan Milosevic. We have received a report, and the Chamber has determined that it's in the interest of the trial and there is a public interest in the disclosure of the report, so I'll read the report.

It's from Dr. Falke, and it says: "Further to the Milosevic meeting yesterday evening and the specific questions posed by the Trial Chamber this morning, I confirm that Mr. Milosevic should not attend court for the duration of this week.

"In relation to the questions posed by Judge Robinson: "What is wrong with the accused? Beginning on Friday, 16/4/2005, I noticed an increase in Mr. Milosevic's blood pressure readings which spiked to an unacceptably high 215/130 on Monday afternoon. "Why should he not attend court? With reference to the first question, as the blood pressure was dangerously high yesterday afternoon, coupled with an increased risk of cardiovascular accident, it is imperative that any stressful activity should be ruled out until the blood pressure has normalised. ³⁸⁶¹¹ "How long will he be unable to attend court? In consultation with the consulting cardiologist, the medication regime has been changed. Providing the amended medication takes effect, the accused should convalesce for the remainder of this week, and I will review his condition on Monday, 25/4/2005."

That's the medical report. I should inform the parties that the Chamber has since informed the doctor that the report and the review of the condition of Mr. Milosevic should take place by Friday of this week so that we will be informed before the end of the week about the condition of the accused and be in a position to determine what will happen next week, since next week we are due to sit Monday to Wednesday.

If there are no comments on this matter, I will ask Mr. Kay to inform the Chamber about his briefing with Mr. Jasovic.

MR. KAY: Yes. I went to the hotel where Mr. Jasovic is staying yesterday, having been informed whilst I was in the building that he wouldn't consent to see me, but I decided, nevertheless, to go myself and meet him. And I did meet him, and I spoke to him for some 15 minutes, in which I explained to him that -- the position and asked whether he would agree to become a witness in the Milosevic case for the Defence, albeit being questioned by me, and he refused on several occasions to consent to such a course. And so in those circumstances -- I have no proof of evidence from him, and I'm unable to -- to advise the Court as to what he would -- would say.

Having reviewed the file of exhibits that he produces or seeks to ³⁸⁶¹² produce, it is clear that he is an important witness, particularly relating to the activities of the KLA in the Stimlje area, not exclusively Racak but Rance, other towns around Stimlje, or villages, which have a bearing on the indictment and the allegation concerning Racak in particular.

So that's all I can say about that particular matter. Yesterday the Court said that before any issue of the trial continuing in the absence of the accused, a trial in absentia, that the trial would have legal argument -- the Trial Chamber would have legal argument before it, and I've told you that we have worked on such a document in advance, although it is not completed but would be completed later on today, and it's a thorough review of the issue.

JUDGE ROBINSON: Thank you, Mr. Kay. Mr. Nice, do you have any --

MR. NICE: Only one observation in respect of what Mr. Kay's just said. We understood that Jasovic was a willing witness at the hands of the accused, although that was never, I suppose, absolutely expressly revealed, but it was the clear implication of the conduct of the Defence case by the accused. Mr. Kay doesn't say expressly that the refusal of Jasovic is because of the absence from the courtroom of the accused and, therefore, doesn't tell us that Jasovic would be a willing witness were the accused in fact to be here.

MR. KAY: That is the case.

MR. NICE: I'm much obliged.

MR. KAY: That much is obvious. ³⁸⁶¹³

JUDGE ROBINSON: Thank you. I want to turn next to the matter relating to the witness Kosta Bulatovic. Let the witness be brought into court. Mr. Bourgon, I recognise you.

MR. BOURGON: Good morning, Mr. President; good morning, Your Honours. If I may ask with leave of the Trial Chamber to address the Trial Chamber in the absence of the witness, before he is brought in.

JUDGE ROBINSON: Yes, you may.

THE INTERPRETER: Microphone is on, Your Honours.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Bourgon, I presume that you will be seeking to address the Chamber in the absence of the witness with the consent of the witness?

MR. BOURGON: Indeed so, Mr. President.

JUDGE ROBINSON: Yes. Go ahead.

MR. BOURGON: Thank you, Mr. President. Your Honours, I have been assigned by the Registrar to act as standby counsel to the witness Mr. Bulatovic pursuant to the wish of the Trial Chamber yesterday at the end of the hearing. For this purpose, I have been provided with a copy of the transcript of yesterday's session, which I have had the benefit of consulting. I have also met with Mr. Bulatovic this morning for approximately 45 minutes. What I would like to do at this time before the witness is brought in is simply to report to the Trial Chamber as to my duties accomplished as standby counsel. ³⁸⁶¹⁴ I have -- I am informed this morning, and Mr. Bulatovic will confirm the same, that last night he met with an associate of the accused as was requested after the hearing by the parties. I'm also informed --

JUDGE BONOMY: Mr. Bourgon, I've got to express concern. Why are we hearing this outwith the presence of the witness? Is there a reason for that?

MR. BOURGON: Your Honour, simply to report on my duties as standby counsel. If the Court wishes, I can do the same report in the presence of the witness who I met this morning. I thought it would be more appropriate to have this information before having a chance to get the witness's position this morning.

JUDGE BONOMY: All right. If my colleagues think that's the appropriate course.

[Trial Chamber confers]

JUDGE ROBINSON: All right. Let the witness be brought in.

MR. BOURGON: Thank you, Your Honour.

[The witness entered court]

WITNESS: KOSTA BULATOVIC [Resumed]

[Witness answered through interpreter]

JUDGE ROBINSON: Mr. Bulatovic, the counsel assigned to you, Mr. Bourgon, was addressing the Chamber, but the Chamber has brought you in because we consider that you should be here to hear what he's saying. Mr. Bourgon, you may address the Court. Start again.

MR. BOURGON: Thank you, Mr. President. I will start my submission again, which will be very short. ³⁸⁶¹⁵ I have been assigned by the Registrar of this Tribunal to stand -- to act as standby counsel to the witness, Mr. Bulatovic, pursuant to the wish of the Trial Chamber expressed at the end of the hearing yesterday. I have been provided with a copy of the transcript of yesterday's session, which I have read, and I have also met with Mr. Bulatovic this morning for approximately a period of 45 minutes. What I wish to do at this time, with the consent of Mr. Bulatovic, is simply to report on my activities as standby counsel to allow the Court to benefit from all the information before they would ask any questions to the witness. I have been informed that Mr. Bulatovic, yesterday, has met with an associate of the accused as was authorised by the Chamber after the hearing. I'm also informed that this meeting was kept to discussing the issue of the testimony of the witness and that it had nothing to do with the substance of his testimony.

In my dealings this morning with the witness, Mr. Bulatovic, I have informed him of the applicable rules and regulations of the International Tribunal dealing with his situation as a witness before the Trial Chamber this morning. I simply wish to confirm that at this point in time Mr. Bulatovic is ready to answer questions of the Court and make his positions known in full knowledge of the possible consequences. Thank you, Mr. President.

JUDGE ROBINSON: Thank you, Mr. Bourgon. Mr. Bulatovic, when we adjourned yesterday, we adjourned to give you time to reconsider your position, that is to say, whether you are prepared to answer questions asked by the Prosecutor in cross-examination. ³⁸⁶¹⁶ Have you reconsidered that position?

THE WITNESS: [Interpretation] Yes, I have reconsidered.

JUDGE ROBINSON: And what is the position that you now take?

THE WITNESS: [Interpretation] I stand by the decision I presented to you yesterday.

JUDGE ROBINSON: To be absolutely clear: That means you are not prepared to answer questions of the Prosecutor in cross-examination.

THE WITNESS: [Interpretation] Yes.

JUDGE ROBINSON: As I said yesterday, you are liable to be charged with contempt under the Rules of Procedure and Evidence.

[Trial Chamber confers]

JUDGE ROBINSON: We will adjourn for half an hour so the charge may be formulated. So we will resume at ten minutes to 10.00. Mr. Bourgon.

MR. BOURGON: Mr. President, am I to understand that a decision has been made, that he is being charged? Because you say that the charge is being prepared. Or is it just a proposal? I would just like to know exactly what is the status of the witness at this point in time.

JUDGE ROBINSON: He will be charged. The charge will be formulated and will be read to you and to the witness when we resume at ten minutes to 10.00.

MR. BOURGON: Thank you, Your Honour.

--- Break taken at 9.23 a.m.

--- On resuming at 11.02 a.m.

JUDGE ROBINSON: The Chamber has issued an order pursuant to ³⁸⁶¹⁷ Rule 77(D)(ii). That order should be transmitted to the witness and his counsel Mr. Bourgon. It may be transmitted to the parties as well. The order is in English, and we recognise that it needs to be translated. I am going to go through the order, and the translated version in the language of the witness will be available in about an hour's time.

The order notes the refusal of the witness to answer questions asked by the Prosecution in cross-examination. It sets out the relevant provisions of Rule 77, and it states that the Trial Chamber has reason to believe that the witness may be in contempt and that it is appropriate for the Chamber to initiate proceedings itself. It also states that the Trial Chamber considers that there are sufficient grounds to proceed against the witness for contempt, and pursuant to Rule 77(D)(ii) to issue an order in lieu of an indictment and to prosecute the matter itself. Then the order sets out the charge, and I read slowly: "Kosta Bulatovic, born in 1937 in the village of Dobrusa in Northern Metohija, is charged that on the 19th and the 20th of April, 2005, being a witness before Trial Chamber III of the International Tribunal, he knowingly and wilfully interfered with the administration of justice by contumaciously refusing to answer questions asked by the Prosecution, contrary to Rule 77(A)(i) of the Rules."

That's the specific charge. The Trial Chamber will prosecute the matter itself.

It is right that Mr. Bulatovic and his counsel should have time to consider this matter, and for that purpose we will adjourn until 12.30, ³⁸⁶¹⁸ when we'll -- we'll resume and take a plea from Mr. Bulatovic. Mr. Bourgon.

MR. BOURGON: Thank you, Mr. President. I would just like to clarify for the benefit of the Trial Chamber that during the break, during the adjournment I have had a conversation with the Deputy Registrar who has clarified my mandate given to me by the Registrar. I noted earlier, Mr. President, that there was no order in writing. Yesterday it had been explained to me that I was to act as standby counsel for a witness. It has now been clarified that my mandate is twofold. It was to both act as standby counsel to a witness, and if and when such witness was to be accused of contempt pursuant to Rule 77 of the Rules of Procedure and Evidence, that in such a case I was to represent him. Of course, subject to the consent of Mr. Bulatovic, the witness, who has now become an accused.

I will therefore, Your Honour, consult with my client during this break. However, to facilitate the issue of my consultations with the client, I would like to ask some clarification from the Trial Chamber as to how the Trial Chamber intends to proceed with this matter. You have just mentioned a few moments ago that you intend to have an initial appearance this afternoon.

JUDGE ROBINSON: No, no. I didn't say initial appearance. No, I said we will take a plea. As you know, the Rules apply mutatis mutandis to the prosecution of a contempt under Rule 77. They apply but just mutatis mutandis. So what we'll do is we'll take a plea when we resume at 12.30, and we will proceed with the trial for contempt. We'll hear ³⁸⁶¹⁹ anything which the accused person has to say in his defence or any submissions that you wish to make on it.

MR. BOURGON: Thank you, Your Honour. I may -- if I may inform the trial at this time that I have considered the matter and of course I need to consult with the witness, but there might be some preliminary submissions at 12.30 when we reconvene.

Thank you very much, Mr. President.

JUDGE ROBINSON: Thank you, Mr. Bourgon. We are adjourned until 12.30.

--- Recess taken at 11.09 a.m.

--- On resuming at 12.35 p.m.

JUDGE ROBINSON: Mr. Bourgon, I see you on your feet. Do you have submissions before we proceed with the plea and the hearing?

MR. BOURGON: Indeed, Mr. President. On behalf of the accused, whom has accepted to be represented by myself, at least until trial proceedings are instituted, I would like to address the Court and make the following preliminary submissions.

To begin with, Your Honours, an order has been issued, and the trial has decided to proceed in this matter against Mr. Bulatovic pursuant to Rule 77 subparagraph (D)(ii). As was mentioned by the Trial Chamber, parts 4 to 8 of the Rules of Procedure and Evidence apply mutatis mutandis to contempt of court procedures. However, the Trial Chamber has confirmed just before the adjournment that this was not per se an initial appearance pursuant to Rule 62 of the Rules of Procedure and Evidence and that the Trial Chamber intends to first take a plea, and two, to proceed with the ^{38620 BLANK PAGE 38621} trial for contempt.

In this respect, Your Honours, I wish to make the following preliminary submissions: My first submission is that it would not be appropriate for this Trial Chamber to proceed with the trial for contempt. In support of this submission, I offer the following arguments: First, Rule 77 subparagraph (C)(ii) states that the Trial Chamber may initiate proceedings itself. In this case an order has been issued by the Trial Chamber and the Chamber has done that. It has initiated proceedings. We then move to subparagraph (D)(ii), which says that the Chamber may also prosecute the matter itself. Our submission, Mr. President, is that it would not it be appropriate for the Trial Chamber to prosecute this matter.

JUDGE ROBINSON: You're saying it would be an improper exercise of our discretion.

MR. BOURGON: Indeed, Mr. President, and I would like to explain why.

Mr. President, when we look on the face of it, prima facie, the order issued by the Trial Chamber is straightforward and the charge itself may appear to be simple. First, did the Prosecution ask any questions? And second, did the accused refuse to answer these questions? So indeed it may appear to be simple.

However, in this case my submission is that the matter is much more complicated. The issue in this case, Mr. President, is was the accused, when he was a witness before this Chamber, required to answer such questions in the first place? The background to this question, ³⁸⁶²² Mr. President, is whether this Tribunal has jurisdiction to hold a trial or trial -- or parts of a trial in absentia. Should the answer to this question be no, then in our view the matter is closed and the issue becomes moot.

Yesterday, the Trial Chamber has rendered a decision on this issue based on an interpretation of a decision rendered by the Appeals Chamber. It said it could proceed without the accused being present. Moreover, the Trial Chamber has recognised that this is an issue which is, first of all, not clear, and more importantly, which will require detailed submissions from the parties. In other words, Mr. President, the Trial Chamber has already made up its mind with respect to whether it could proceed in absentia in this case.

In light of the above, it is our respectful submission that it would not be appropriate for the Trial Chamber to deal with this matter. In support of this submission, I would like to quote the following paragraph which comes from the United Kingdom, and this refers to a practice note which was issued by the Lord Chief Justice in May of 2001. Reference, 3 All E.R. 94. I apologise for not knowing exactly how to translate this abbreviation at this time.

JUDGE BONOMY: All England Law Reports is the description. Do you say that's 2001 All England Law Reports?

MR. BOURGON: 2001, Your Honour.

JUDGE ROBINSON: That would be 3 AER.

JUDGE BONOMY: No, All E.R.

JUDGE ROBINSON: Okay. ³⁸⁶²³

MR. BOURGON: According to this practice note which was issued by the Lord Chief Justice, if in an offence of contempt is directed to the magistrate, it will not be appropriate for the same Bench to deal with the matter. And B, in the case of a contested contempt, the trial should take place at the earliest opportunity and should be before a Bench of magistrates other than those justices before whom the alleged contempt took place. If a trial of the issue can take place on the very day of the alleged offence, such arrangements should be made, taking into account the offender's rights under Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms. In addition, Your Honours, I have here a document which consists of guidance for judges, which has been issued by the Judicial Studies Board in the United Kingdom, and it is a document which is available on the Internet. This document deals with contempt of court procedures. And on page 5 of this document -- or, sorry, on page 51 of this document there is a paragraph which states when contempt is denied, the trial should take place at the earliest opportunity. It must be tried by a different Bench. The need for an independent and impartial tribunal may require that a Bench or district judge be brought in from elsewhere to try the case. It may be necessary for the court to instruct independent solicitors to prosecute the matter, and justices, legal advisors, and advocates may find themselves called as witnesses.

Mr. President --

JUDGE ROBINSON: Are there any European cases on this from the European Court? ³⁸⁶²⁴

MR. BOURGON: This is judicial -- this is guidance for judges in the United Kingdom --

JUDGE ROBINSON: No, no. I was asking if you are aware of any case that is might have gone to the European Court.

MR. BOURGON: I am aware of some cases in the European Court of Human Rights. However, I did not find at this time and with the short time that I had at my disposal, I did not find a specific case on point. However, when discussing the practice note which was issued by the Lord Chief Justice, this was made in a commentary which dealt with the case of Kyprianou versus Cyprus, a judgement of the European Court of Human Rights.

Now, I'm not in a position to tell you that this case fits exactly the present situation. What my submission is today, Mr. President, is that the issue of trial in absentia is intimately linked to the issue of contempt of this witness, and on this issue the Trial Chamber has already made a determination. In my view it would not be appropriate for this Trial Chamber - and this is of course respectfully submitted to Your Honours - to proceed with the order issued by the Trial Chamber before this Chamber.

JUDGE ROBINSON: Mr. Bourgon, you might want to consider what the Trial Chamber said about the Appeals Chamber's ruling was specific to this particular witness. I don't myself believe it is correct to say that the Chamber has made up its mind already about the issue of trial in absentia in relation to the continuation of the case as a whole. We gave a ruling that was specific to this witness. ³⁸⁶²⁵

MR. BOURGON: Mr. President, I have the transcript here, and indeed you are right. The Trial Chamber did not make a position on the issue in principle of trial in absentia. On the contrary, the Trial Chamber did say this is an issue which would require submissions. However, and I don't have the exact paragraph, but Trial Chamber did say that in respect of this witness, the interpretation of the Appeals Chamber decision allows it to continue and to proceed with the cross-examination which was to be conducted by the Prosecutor.

JUDGE ROBINSON: Yes. But bear in mind this was a witness who was already examined-in-chief, and his cross-examination was what was outstanding. It's not as though he was being examined and cross-examined in the absence of the -- of the accused. The accused had already examined him. And we also instituted certain safeguards to ensure there would be no prejudice to the accused, in that we ordered that the transcript and a video of the proceedings would be made available to the accused.

MR. BOURGON: Mr. President, in this case what I would -- my submissions would include the following: Indeed there is -- there are specific circumstances which apply to this accused when he was a witness before the Trial Chamber. My submissions do not relate to the specifics. It relates to simply that the Trial Chamber did say that the Appeals Chamber, regardless of the circumstances, this is something that will be looked at in any trial for contempt, but there was a decision made that the Trial Chamber decision did allow the Trial Chamber to continue with the cross-examination. In my respectful submission, whatever the circumstances which led to the Trial Chamber making this determination, it ³⁸⁶²⁶ doesn't change the fact that a determination was made. Moreover, Mr. President, when addressing the witness yesterday, the fact that the Appeals Chamber was in authority to continue in this case is a fact which was mentioned to the witness who is now standing before you as an accused for contempt. Therefore, this determination, in my respectful submission, did indeed -- has a major role to play in these proceedings.

JUDGE BONOMY: Mr. Bourgon, surely that determination is one that can only be challenged by an appeal. That isn't the sort of determination it would be appropriate for another Bench of equivalent standing to this one to interfere with. That decision having been made, the only issue now that arises is whether or not the accused refused to answer questions, and once that's determined, one way or another, if you're unhappy with the outcome, then the whole issue may be explored before the Appeals Chamber, and there is a right of the accused to have that done. But our concern must be with whether an order that we have made is obeyed or not, and that I would not have expected to be open to challenge before a court of equivalent standing.

MR. BOURGON: Your Honour, if I may respond to your comment. I think your comment is exactly on point, but why is it exactly on point? Because this Trial Chamber, having made a determination in addressing the issue of contempt certainly would have difficulty to review its own determination.

JUDGE BONOMY: But its own determination doesn't arise for review. That's passed. The only question here is whether the order having been ³⁸⁶²⁷ made, it was obeyed or not. We're past that stage.

MR. BOURGON: I must respectfully disagree with Your Honour, because the fact that this determination does become one of the issues that will lead to whether this accused who stands before you is guilty or not of contempt. Another Trial Chamber is not bound by your determination that it was possible to proceed with a cross-examination by the Prosecution, and for this -- in this respect, then another Trial Chamber will be much more able to guarantee the right of the accused to a fair trial before an independent and impartial Trial Chamber. If I may continue, Mr. President, with my other submissions. My second submission is that should the Trial Chamber nevertheless decide to proceed with this issue itself as was said earlier, if a trial must take place at the earliest possibility, all the guarantees, all the rights of the accused guaranteed under Article 6 of the European Charter must be guaranteed. In this regard --

JUDGE ROBINSON: As far as I'm concerned, it's safer and better to cite the International Covenants on Civil and Political Rights, which is an international, not a regional convention, and of course has a much wider participation. And it is, after all, that convention, Article 14 of which the Secretary-General enjoined the Tribunal to adhere to in respecting the rights of the accused.

MR. BOURGON: Mr. President, if I did by my comment say something that the Trial Chamber feels was an inappropriate legal reference, I apologise.

JUDGE ROBINSON: No, no. I'm not saying it's inappropriate. I'm ³⁸⁶²⁸ not saying it's inappropriate. But as far as I'm concerned, for this Tribunal it is always safer to rely on the international covenant and the commentaries to that covenant for the reasons that I have stated.

MR. BOURGON: Thank you, Mr. President.

JUDGE ROBINSON: If you look in the -- if you were to read the Secretary-General's preparatory statement, that is preparatory to the adoption of the Resolution which established the Tribunal, you will see in relation to Article 21 that he makes specific reference to Article 14 of the International Covenant on Civil and Political Rights, and for very good reason. It's an international covenant with about 150 members as States Parties.

MR. BOURGON: Mr. President, I thank you for your kind advice. But since you bring the topic up of Article 21 of the statute, I guess maybe it's better common ground to have Article 21 of the statute, and I think if we are going to proceed in this case with contempt proceedings in -- against Mr. Bulatovic, then the rights of the accused pursuant to Article 21 must be safeguarded completely.

Now, this includes in Article 21, paragraph 4(A) the fact to have the necessary time and facilities to deal with this issue and to prepare the case for the Defence.

In this case, Mr. President, the accused who stands before you cannot be ready to answer these charges today, and the reason for this is quite obvious, because as I've explained a little earlier, even though on the face of it, it is a simple matter, the Defence to be prepared may involve lengthy legal submissions, may involve detailed research, may ³⁸⁶²⁹ involve even the calling of witnesses, because it goes much further than simply refusing to answer a question.

JUDGE ROBINSON: He may have witnesses to call. Are you saying that?

MR. BOURGON: I'm saying, Mr. President, he may, yes.

JUDGE ROBINSON: Is that -- have you considered that seriously? You make that submission seriously?

MR. BOURGON: I do not make that submission having considered the matter seriously. However, it is a possibility that arose in my discussions with my client, but I cannot say that at this point in time I can make it a submission that witnesses would be called. But there are circumstances in this case, there are matters, there are issues that were -- not issue, that there were words stated to this accused by members of this Tribunal when he was first called to testify, and there are other possibilities also for a Defence to call witnesses in the case of this specific contempt. But regardless or not, we have -- sorry, Your Honour.

JUDGE BONOMY: Before I could see any weight in that I would really need to know what you're talking about. Give me an example of words that were said to him that -- by the Tribunal that may require legal research and lengthy submissions and possible evidence.

MR. BOURGON: Your Honour, the Trial Chamber itself has stated that the issue of trial in absentia --

JUDGE BONOMY: Well, let's assume that's irrelevant for the moment. Let's assume we decide that --

THE INTERPRETER: Microphone, Your Honour, please. ³⁸⁶³⁰

JUDGE BONOMY: Well, let's assume that just for present purposes or that hypothetically that's not a defence, what else is there?

MR. BOURGON: Then let me point to you, Your Honour, a hypothetical scenario whereas a witness, and I wish to stand aside from this particular case even though this may very well apply, a hypothetical scenario where a witness is contacted by representatives of this Tribunal and asked to testify, and as he is asked to testify, during those consultations which take place back and forth some promises, some guidelines, some guarantees might be offered to a witness. This witness then appeared before the Trial Chamber, and suddenly there is a change of circumstances which make it that even though the Trial Chamber tries to reassure him he still have those guarantees or promises or words in mind, and that very well be an excuse.

Again, I'm stating this aside from this case because I'm being asked to provide an example. So there is the possibility in a case of contempt such as this one that a witness could be called. Another example, Your Honour, is yesterday there was a meeting. I informed the Trial Chamber earlier today that there was a meeting between one of the associates of the accused in the main trial with the accused now. What was discussed at that meeting may be of some relevance. I don't know, and I don't want to say, but we cannot ignore that what was said at that meeting may be relevant to the charge of contempt. For all these reasons, to proceed at this stage does not allow the accused to have the necessary time and facilities to prepare his defence. Furthermore, Mr. President, another issue is the health of the ^{38631 BLANK PAGE 38632} accused. This witness has been here for ten days. He has a medical condition which without being precarious is indeed not the best. As such, Mr. President, and given what happened and the stress that was put on the witness over the last two days in something that came completely as a surprise to him, this is indeed, Mr. President, something to take into account not to proceed at this time.

The International Tribunal always goes beyond what is even necessary or what is possible to ensure the well-being of victims and witnesses. Before Mr. Bulatovic was an accused, he was a witness. We need to take this into consideration, and we need to give him time to reflect.

Another issue, Mr. President, is the right to counsel of his choice. All of this came all of a sudden for Mr. Bulatovic. Today I am representing him, and as I expressed at the beginning, my mandate is limited to representing him until trial proceedings begin. Why this is so? Because rightfully this accused would like to consult with legal counsel of his choice back home, to use his own words, and then make a determination as to how he would proceed.

Your Honours were able to see that the witness conduct in the courtroom was made a matter of principle, and this matter of principle is something that he may want to discuss with counsel of his choice. In this case, he does want to discuss this with counsel of his choice before proceeding any further with everything that took place in a very short period of time and completely unexpectedly to this witness. He is placed in the position where he made a decision. He decided to stood by -- to ³⁸⁶³³ stand by his decision. Now he faces charges before an International Criminal Tribunal. I believe, Mr. President, that the right for him to choose legal counsel, even though he may in the end decide to continue with myself, I have no idea. What I can confirm today is that my mandate is limited to representing Mr. Bulatovic until the beginning of the proceedings.

JUDGE BONOMY: Mr. Bourgon, there should be no doubt in the mind of the witness that he can change his mind now and relieve himself and everyone else of the anxiety that he has been causing. It remains open to him to do that.

MR. BOURGON: Your Honour, I cannot respond to this comment. In the situation of my client, I think it would be improper for me to respond to this comment. My submission is that first of all, this Trial Chamber should not handle this case for the reasons mentioned; and number two, that in any event, this -- these proceedings should not even begin today, and in accordance with Article 77(D)(ii), the matter can be -- where it says prosecuted by itself, we believe this matter should be transferred to another Trial Chamber, and that of course the trial for contempt can take place at the earliest possibility to which, if the Trial Chamber wishes to put questions to the accused, he may very well answer to you that he would be available and he would consent to coming back at the earliest possibility for such proceedings.

JUDGE ROBINSON: Can I ask you, Mr. Bourgon, on the discretionary power that the Rule gives a Trial Chamber to prosecute the matter itself, you have said that in these circumstances it would be improper for the ³⁸⁶³⁴ Trial Chamber to prosecute the matter itself, and this is what I want to be clear. The reason for that, in your submission, is that the Trial Chamber has already expressed itself on a particular issue.

MR. BOURGON: Mr. President, this is indeed one of the submissions, but the submission in general is that an accused has a right to a fair trial before an independent and impartial Trial Chamber, and simply by reading the transcript of what happened yesterday it appears that this would not be the case, or there is a likelihood that this would not be case, given the conversation and the questions that were put back and forth with the accused in this case.

JUDGE ROBINSON: It is the impartiality of the Trial Chamber that is in question.

MR. BOURGON: And independence from the facts, yes, Your Honour. And one of the major submissions respectfully is the issue of the determination made as to whether the Trial Chamber could continue in the first place with the cross-examination of the Prosecution.

JUDGE ROBINSON: But by citing the practice direction of the Chief Justice of the United Kingdom you seem to be going further, because that practice direction, if followed, would seem to indicate that a Trial Chamber before which a contempt has been done should not itself prosecute the contempt, that it should be for another body of judges to prosecute that contempt.

MR. BOURGON: As a given, Mr. President, I think that this would be the normal course of action in a case where the Trial Chamber has been involved in any way into the events that led to the conduct that is now ³⁸⁶³⁵ the object of the contempt proceedings.

JUDGE ROBINSON: And that would be so in most cases, which would then mean that this portion of the Rule is, ultra vires, some law, some body of law, because it would mean, then, that that discretionary power would seldom be able to be exercised properly.

MR. BOURGON: Mr. President, I would not go as far as saying that Rule 77(D)(ii) is ultra vires. On the contrary. I believe that there may be in some instances cases of contempt which the same Trial Chamber may handle. My submission to you today are limited to the facts of this case, where I'm saying that in the particular circumstances of this case, I respectfully submit that it would not be appropriate for the same Trial Chamber to conduct these proceedings.

JUDGE ROBINSON: But I mention it to you because you may be aware that there is a range of jurisdictions that actually proceed with a contempt case where the contempt has been committed in the face of the court and the court itself proceeds with the hearing of contempt.

MR. BOURGON: Mr. President, I am familiar with the -- the issue of the contempt proceeding, which is very much, as we all know, at the starting point a common law procedure. I come from a common law background. In my own country, in Canada, in some Trial Chambers it depends on the facts of the case. In some cases the Trial Chamber or the judge will decide to proceed himself if the issue is minor, if the issue does not infringe or does not come close to influencing the Trial Chamber in their decision-making. Whereas in more serious issues a new -- the matters would be referred to a different Trial Judge for this issue to ³⁸⁶³⁶ continue, and this will not -- in the same way this also has an advantage in many systems where you transfer the case of contempt because it does not delay the trial proceedings in the main case. Now, in this case this trial appears to be temporarily stopped, and it appears that maybe there would be time to do so, but that's another reason why in most cases cases are transferred to another Trial Chamber. The main reason remains: The right of the accused for a fair trial before an independent and impartial Trial Chamber. However, there is also the practical issues that come with that.

JUDGE ROBINSON: Just help me to understand your submission on the linkage between a trial in absentia and these proceedings for contempt. Are you saying that if a trial in absentia is improper in the circumstances, then the Prosecutor would not have been entitled to put any questions to this witness in the absence of the accused, Milosevic?

MR. BOURGON: That is indeed my submission, Mr. President. That if there would be -- if a trial in absentia is not a possibility, if parts of a trial in absentia is not a possibility, then in such a case the witness would not have any questions to answer and would not be in a position he is facing today.

JUDGE ROBINSON: And I think that's why in that regard I -- I said to you that what was taking place was not a trial in absentia, that we made it clear that we were dealing with this witness, whose evidence had already started, who had already undergone examination-in-chief and it was just left for the Prosecutor to cross-examine him, and that perhaps the parallel with a trial in absentia is not entirely appropriate. ³⁸⁶³⁷

MR. BOURGON: Mr. President, we use the word "trial in absentia," but the -- our focus in this case should be could the trial continue. Now, what the Trial Chamber is saying today, Mr. President, appears to me that indeed the Trial Chamber was convinced that it could continue with the cross-examination on the basis of the Appeals Chamber decision. Now, if that is the case, Mr. President, and if the Trial Chamber could not continue, then in this case there would not be contempt of court proceedings, and for this reason, I think this is a very good reason why another Trial Chamber should try this case.

JUDGE BONOMY: Mr. Bourgon, could I see the two documents you referred to, please?

MR. BOURGON: Absolutely, Your Honour. I apologise for the highlighter, Your Honour.

JUDGE ROBINSON: Well, we may benefit from your highlighting, Mr. Bourgon.

JUDGE BONOMY: I think you also referred to the case from the All England Law Reports or did you have the report? It wasn't the case; it was the practice direction.

MR. BOURGON: The practice direction --

JUDGE BONOMY: Is it here?

MR. BOURGON: No. What I have is the -- when we talk about the case, and I cannot say that name again, Kyprianou.

JUDGE BONOMY: Yes.

MR. BOURGON: -- against I guess it was Cyprus, and as part of the commentary -- ³⁸⁶³⁸

JUDGE BONOMY: Kyprianou is more recent, though, I think, than the Lord Chief Justice's direction; is that correct?

MR. BOURGON: I believe it is so, Your Honour, and that is why they make reference to this practice note by --

JUDGE BONOMY: All right. It's just that my recollection, and it may be someone in this room can assist, but my recollection is there is English authority on this question of the Court of Criminal Appeal which proceeds that the sort of situation we're in here, where it may be necessary to deal with the contempt to enable the trial to proceed, is precisely the situation where the English courts recognise the right of the presiding court to deal with contempt, and that this is in fact one of the sorts of situations that in the English jurisdiction is envisaged as one that would not be dealt with by a separate court. But I was hoping to try -- that I might find that in the documents that you had -- or contradiction of it in the documents you had presented.

MR. BOURGON: Your Honour, I don't think this is in the documents that you have. However, if I may say, whatever is decided in this case, I don't think will delay proceedings. On the contrary. By transferring the matter to another Trial Chamber, this will allow the trial to continue. But I believe --

JUDGE BONOMY: You see, Mr. Bourgon, this book, the reference to judicial studies, is about misbehaviour in court and defines contempt of court as insulting behaviour. I doubt if it actually deals with the situation we're dealing with, which is the wilful refusal to answer a question. It may also be that what you do in an English magistrate's ³⁸⁶³⁹ court is really of no relevance to what might happen in a court like this. However, I can read that separately.

And the other one is just some sort of commentary on Kyprianou, is it? Oh, it's the report of Kyprianou, which was January 2004. Thank you.

MR. BOURGON: Your Honour, if I may, I mean this matter came up for me last night. I have gathered as much material as I could this morning, but -- and submissions on the application of national law or national rules of procedure and evidence are often made. There is a specific rule that says that the International Tribunal is not bound by such rules, and I cannot agree more. However, they can be cited in terms of trying to explain issues in principle. And I believe that the issue in principle in this case is the right of the accused to a fair trial before an independent and impartial Trial Chamber, and I believe that this would be best guaranteed in front of another Trial Chamber given the background issue, which is whether the trial could continue in the first place with the cross-examination by the Prosecution.

JUDGE ROBINSON: I should same the Chamber is indebted to you for your submissions, particularly bearing in mind that you have come into this matter only recently, Mr. Bourgon. I think the accused would be well advised to continue with your services for the trial itself. I'll consult with my colleagues.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Bulatovic.

THE WITNESS: [Interpretation] Yes, please.

JUDGE ROBINSON: Mr. Bulatovic, I want to ask you, your counsel ³⁸⁶⁴⁰ has indicated that you wish to retain counsel of your choice with regard to how you would plead and with regard to the hearing itself. How long would you take to retain counsel? And I want to say that, as I indicated, the Chamber itself has absolute confidence in Mr. Bourgon, and indeed as I said, I think you would be well-served by retaining Mr. Bourgon. But in the event that you decide to retain counsel of your choice, how long would it take for you to retain that counsel?

THE WITNESS: [Interpretation] Mr. Robinson and Your Honours, I think that I would need a maximum to confer with my counsel in Belgrade up to a month. Within a month they would provide a response to the charge against me. I think that would be sufficient time.

JUDGE ROBINSON: I myself don't think a month is necessary for a charge of this kind, but I'll consult with my colleagues.

[Trial Chamber confers]

MR. NICE: May I ask to be heard just on one issue of timetabling?

JUDGE ROBINSON: Yes, Mr. Nice.

MR. NICE: The suggestion that there should be any significant time allowed to this now accused person to prepare his defence should be set, it may be, beside the absolute need for this Chamber to be able to conduct its affairs and to control the conduct of witnesses. I don't want to go into the substantive issues at the moment. Any delay leaving matters in the air at all as against this witness, accused person, may act as an extreme encouragement to others and leave the Chamber powerless to deal with recurring problems of a like kind. ³⁸⁶⁴¹ I would invite the Chamber to consider at this stage as a maximum putting the case over until tomorrow to review the state of law on -- in case the Chamber wants further assistance beyond the two documents provided by Mr. Bourgon, on the issue of dealing with these cases peremptorily and indeed immediately.

I am bound to observe - and I'm sure the Chamber won't have missed it - that it could be argued that the response of this witness, now an accused person, could be seen to fit into a course of conduct first started with the reaction of the witnesses --

JUDGE BONOMY: I would like to say here and now, Mr. Nice, I do not think you have standing in this context at this stage in this proceedings. If this Bench requires assistance from the Prosecutor, which may well arise in the circumstances that now are developing, I think, then it will be appropriate for us to ask, but I don't think you have an independent role in this at all, if I may say.

MR. NICE: If that's Your Honour's view, then I'll say no more apart from that of possible assistance to you may be, and it's only a document of limited assistance, but it's a decision of the Scottish sheriff who reviewed the law on the question of a court dealing with contempts before it and reviewed it in light of the convention. It's been made available to me by Mr. Ruxton. I've got hard copies of it.

JUDGE BONOMY: Is that a review following of Kyprianou or --

MR. NICE: Yes. This is 2001. So it's -

JUDGE BONOMY: Well, it is of no assistance in my opinion.

JUDGE ROBINSON: The ruling of the Chamber is by majority. We ³⁸⁶⁴² will adjourn until Thursday, the 5th, resuming this hearing at 9.00 in the morning. That will give time to the accused to consult a lawyer of his choice and to prepare his case.

I said Thursday, the 5th of May. Thursday, the 5th of May at 9.00 in the morning.

Mr. Bourgon.

MR. BOURGON: Thank you, Mr. President. Am I to understand from this decision that the Trial Chamber has decided to proceed itself with the matter and not to refer the matter to another Trial Chamber?

JUDGE ROBINSON: Yes. But we can't preclude submissions being made by counsel of choice in relation to that matter. We are adjourned until Thursday the 5th of May at 9.00 a.m. Mr. Bulatovic, you may leave and then we will return to the trial proper.

THE WITNESS: [Interpretation] Thank you.

[The witness withdrew]

MR. BOURGON: With your permission, Mr. President, I will leave with my client.

JUDGE ROBINSON: We just have ten minutes. Mr. Kay, may I inquire whether you would have any witnesses available for testifying?

MR. KAY: I have no witnesses available, and the issue that the Trial Chamber would have to move to in consideration of the calling of any witnesses other than the dealing with the Bulatovic problem is the issue of trial in absentia. ³⁸⁶⁴³

JUDGE ROBINSON: We will be getting a report on the medical condition of the accused on Friday.

Mr. Nice, any submissions on this matter?

MR. NICE: Yes. On this matter, my submissions are that the case should proceed as if Mr. Kay was in the driving seat, and to use the vernacular we used at earlier stages, and as if the Chamber could proceed, at least until argued to the contrary, in the absence of the accused and in accordance with paragraph 20 of the Appeals Chamber's decision. That would mean that the witness Jasovic should be the subject of efforts to be called or could be the subject of efforts to be called by Mr. Kay -- yes, by Mr. Kay. But, Your Honour, I can go no further than that. I understand that Jasovic is still in The Hague.

My second submission is that one way or another, the time that has passed this week is time that should count from the accused's 150 days. I can summarise the reasons for that submission.

The point was first raised by me expressly when witnesses were declining to cooperate before the Appeals Chamber's decision. It was then referred to by the Prosecution in a skeleton argument lodged in the course of the hearings on, I think, the 9th, 10th, and 11th of November of last year, subsequently made public, and it was dealt with at paragraph 17, and I returned to the issue at the time that the accused suffered from influenza.

It seems to the Prosecution really of the highest priority that this trial should be brought to a timely conclusion, and the Appeals Chamber and this Chamber have collectively made to the accused every ³⁸⁶⁴⁴ facility to meet his particular circumstances, including the circumstances of ill health, which in combination with the work that he puts in on this case or independently may keep him from coming to court from time to time, and in light of the decisions that have been made, it would be appropriate for the days this week to count against him.

I observe, as I was on the point of almost observing before His Honour Judge Bonomy indicated he wished to hear no more of it, I observe that although it may never be possible to establish whether witnesses on that earlier occasion or now are acting according to any concerted plan or under any instruction, the Chamber can be certain of this, that one word for the accused encouraging or instructing or requesting witnesses to cooperate with the orders of the Court and to give evidence in his absence would undoubtedly have been obeyed, and the objectives of this Court to bring this trial to a timely conclusion would be better served. Those are my only submissions on the point, but I have going back to the matter upon which I'm not to be heard but nevertheless may be able to offer assistance, I'm again grateful to Mr. Ruxton, and I'll tell or make sure that Mr. Bourgon knows of this. There may be a case rather more recently - Your Honour may indeed be aware of it - and it appears to come from -- it does from the High Court of Justiciary, Lords Penrose, Hamilton and Abernethy, and it's 2004. And, Your Honour, I'm sorry not to be familiar with the proper citation system, but I've got a copy of it here. It's appeal number MISC 306/03, and that appears to deal with this issue. We'll try and get a better version of the version that I've got at present, which is off, I think, the Internet by the looks of it. ³⁸⁶⁴⁵

JUDGE BONOMY: But it does deal with Kyprianou, I think.

MR. NICE: I haven't yet been able to scan it sufficiently but the date would suggest that it does, yes. Your Honour, if that's of assistance, we'll make that available and we'll notify Mr. Bourgon of it as well.

JUDGE BONOMY: Thank you.

JUDGE ROBINSON: Mr. Kay, particularly on the question of the counting of time.

[Trial Chamber confers]

MR. KAY: Yes, Your Honour. Just a couple of matters. In our submission, the Trial Chamber would be driven into grave jurisprudential error to follow the line that Mr. Nice for the Prosecution is trying to drive you into. It would be a line that is not followed by any of the jurisdictions of the world nor any of the commentaries contrary to Article 14 of the International Covenant on Civil and Political Rights, contrary to the report of the Secretary-General during the establishment of this Court, pursuant to paragraph 2 of Security Council Resolution 808 in which it was said there is a widespread perception that trials in absentia should not be provided for in the Statute as this would not be consistent with Article 14 of the International Covenant on Civil and Political Rights which provides that the accused shall be entitled to be tried in his presence. And we urge the Trial Chamber not to be driven into jurisprudential error that would invoke great criticism on it until it has properly considered the matter.

JUDGE ROBINSON: How, then, do you interpret paragraph 20 of the ³⁸⁶⁴⁶ Appeals Chamber's --

MR. KAY: The word used in paragraph 20 is the word "participate." It doesn't deal with the absence of the accused from the proceedings, and the Appeals Chamber was never seized of the issue of trials in absentia. That was not the matter before it, and indeed it was the issue of participation. So it may be that his presence was possible in the court, but his right to conduct all the affairs could be restrained and the imposition of assigned counsel in those circumstances, hence the phrase the "reshuffling of trial roles."

We're unable to drive this case without any passenger in the back.

JUDGE ROBINSON: I see. Thank you, Mr. Kay. We will adjourn until --

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Nice, we have heard your submissions on the question of time being counted against the accused, but on this particular occasion the Chamber is not inclined to count the time against the accused, although we recognise that we'll have to revisit that question on a wider basis.

So we will adjourn until Monday morning, but we expect a report on the condition of the accused on Friday. If we have that report, then we will issue an order.

MR. NICE: And will that order -- excuse my asking, for clarification for preparation purposes, will that order make clear whether even if the accused is not here there's any expectation that I may have to deal with evidence because it's -- ³⁸⁶⁴⁷

JUDGE ROBINSON: It depends on all the information that we have available at that time.

MR. NICE: I'm obliged.

JUDGE ROBINSON: We are adjourn.

--- Whereupon the hearing adjourned at 1.46 p.m., to be reconvened on Monday, the 25th day of April, 2005, at 9.00 a.m.