APPEAL AGAINST THE IMPOSITION OF COUNSEL HEARD
www.slobodan-milosevic.org - October 21, 2004

Written by: Andy Wilcoxson

The Appeals Chamber of the Hague Tribunal today considered an appeal against the Trial Chamber’s decision to ban Slobodan Milosevic from defending himself.

Mr. Steven Kay and Ms. Gillian Higgins, the court-imposed lawyers, filed the appeal against the tribunal’s decision to impose counsel on Milosevic.

Mr. Kay told the appeals hearing that he was not able to defend Milosevic. "My team and me are unable to properly perform our function," he said adding that “we are ineffective in this trial and we are unable to say we are acting in the interest of justice.”

Kay said, "People are kidding themselves making believe that what is happening here is a proper defense."

The outcome of a trial where an accused is not permitted to represent himself, Kay argued, is likely to be rejected by history as ''unfairly warped.''

 
Kay said that scores of defense witnesses were refusing to appear so long as Milosevic was not allowed to represent himself. "We have driven ourselves into the sand," Kay told the appeals chamber.

So far, only five witnesses have testified since the imposition of counsel was announced on September 2nd.

"To window-dress this case puts me in ethical and professional difficulty,” Kay said. Adding that the imposed lawyers are “unable to say that we are meaningfully putting forward his defense."

"This is the biggest criminal case ever in the world,” Kay said adding, “It can only be managed by the Accused and his support."

He stressed that Milosevic consistently asserted his right to defend himself before the tribunal and said the prosecution had mounted "a concerted attack over a period of three years against this accused being able to present his own case.”

Kay said that Milosevic’s right to self-defense had to be fully restored. He also rejected the possibility of acting as a stand-by counsel for Milosevic. "We urge the court to overturn this decision and return the right to defend himself back to this defendant," Kay said.

"One cannot think of a more fundamental right, more in the interest of justice, more going to the fairness of a trial, than the right to present your defense as you want to present it, rather than how somebody else would like for you to present it," Kay said.

Milosevic was unequivocal in his position. ''I demand the right to defend myself back. My legal position can not be changed in the middle of the trial,'' he told the appeals hearing.

Milosevic said that he had nothing against Kay personally, but that Mr. Kay was simply unable to present his defense properly.

 
''No lawyer, Kay or any other, is able to replace me in this trial,'' Milosevic said. ''This is a political trial. It is not at all about whether I committed a crime.” Milosevic said adding that “The truth of what happened in the former Yugoslavia has to be told here.''

Milosevic cast doubt on the medical reasoning behind the trial chamber’s decision to impose counsel on him. He produced a medical report from 2002 showing that his blood pressure was higher then than it was when counsel was imposed.

In 2002 when his blood pressure was worse, the doctors said that he was fit enough to represent himself, but in 2004, when it was better they suddenly changed their position.

Milosevic speculated that the sudden change in medical reasoning was the result of political pressure put on the tribunal by Madeline Albright when she visited just before the decision to impose counsel was made.

Milosevic also showed that a large share of the “sick days” were not due to his hypertension. He brought a document from the detention unit showing that most of the days missed were due to influenza. He said that the flu is something that can strike down anybody no matter how healthy they are.

Milosevic denied accusations from the prosecution that he was intentionally making himself sick by not taking his medicine.

Milosevic said that he was following his therapeutic regime exactly. He pointed out that his medicine is administered to him in the detention unit by the guards, and that he has to take the medicine in their presence, meaning there is no possibility for him not to take his medicine.

Disturbingly, the medical reports show that the drugs prescribed are not in his blood stream at as high a level as they should be. The reports also show the presence of other drugs that have not been prescribed. This can mean one of only two things; either the medical reports are fabricated, or somebody in the detention unit is manipulating his therapeutic regime by giving him the wrong medicine.

On November 23, 2002 the Dutch paper NRC Handelsblad reported in a story entitled “Milosevic Kreeg Verkeerd Medicijn” that the Tribunal had given him the wrong medicine. Their report said, “In the Scheveningen prison Slobodan Milosevic was given the wrong medicine, causing his blood pressure to rise very quickly. This was why at the beginning of this month the trial against the former president of Yugoslavia was suspended. Sources within the tribunal have confirmed this. However a spokesman for the Tribunal denies that mistakes were made. He refuses to discuss the issue further on grounds that ‘This is about the privacy of the defendant.’”

The prosecution opposes the restoration of Milosevic’s right to defend himself, and argued against it at the appeals hearing. The prosecution claims that Milosevic is “irrational” for wanting to defend himself.

Rather than relying on legal argument, Mr. Nice appealed to the judges’ sense of territoriality saying, ''Who's running this court, the accused or the judges appointed to do so?''

In spite of the fact that Milosevic successfully conducted his own defense throughout the entire prosecution case Mr. Nice argued that ''This man is not capable of presenting a case in what is manifestly a criminal court trying him on criminal charges.''

It is not yet known when the appeals chamber will hand down its ruling. The appeals judges notified the parties that they would submit further questions in writing, before handing down their decision.
 

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