KAY CALLS IT QUITS, BUT WILL THE TRIBUNAL LET HIM GO?
www.slobodan-milosevic.org - October 27, 2004

Written by: Andy Wilcoxson

Slobodan Milosevic Freedom Center board member, Nico Steijnen appears to have successfully effected the resignation of Mr. Steven Kay and Ms. Gillian Higgins, the lawyers appointed by the Hague Tribunal to represent Slobodan Milosevic against his will.

Mr. Kay’s resignation came on the same day as the Disciplinary Board of the Dutch Bar Association served papers on him. They informed him that he was obliged to appear before the board to defend himself from the accusation that he is representing Milosevic against his will.

Mr. Steijnen, who serves as Milosevic’s attorney before the Dutch and international courts, filed the complaint against Kay earlier this month, after consultation with President Milosevic.

Steijnen’s complaint asserts that it is a violation of the Dutch Bar’s ethical standards for a lawyer to represent somebody against their will. The Dutch Bar accepted this line of reasoning and agreed to hear the complaint on the grounds that Milosevic was being represented by Kay against his will.

Under Rule 60(a) of the Dutch Lawyers Act, the rules and ethical standards of the Dutch Bar bind all lawyers who practice law in The Netherlands (including at The Hague Tribunal). The disciplinary board has the authority to temporarily suspend a lawyer’s practice, or to disbar a lawyer so that he is permanently banned from practicing law in The Netherlands. 

Kay, confirming his resignation to the Serbian newspaper Blic, said on Wednesday that “We are now forced to withdraw, otherwise we would violate the lawyer's codex.”

The Hague Tribunal confirmed that Mr. Kay and Ms. Higgins submitted their resignation. However, tribunal spokesman Jim Landale, said they will remain as defense counsel until the tribunal removes them, or accepts their resignation.

"I can confirm that the registry has received a request from Steven Kay and Gillian Higgins for their withdrawal from their role as assigned counsel in the Milosevic case," Landale said at a press conference on Wednesday.

"Both counsel are still assigned to the case until there is a decision otherwise," Landale said.

Meanwhile, a spokeswoman for Kay and Higgins told Agence France Presse on Wednesday, "Until the court makes a decision, they will continue to be involved in the case."

Because Mr. Kay is the only lawyer familiar with the case, his resignation puts the tribunal in a very bad position, and leaves it with very limited options.

The tribunal could reject Kay’s resignation, and try to force him to represent Milosevic against both of their wills. In this case a conviction would have absolutely no credibility, because the argument would be made that no defense was put before the conviction was handed down.

If Kay is forced to remain, the witness boycott will be intensified. Kay already admitted in the appeals hearing last week that he was “ineffective in this trial” and unable to say he was “acting in the interest of justice.” The witnesses will certainly not come and testify for an ineffective lawyer who doesn’t want to be there in the first place.

Furthermore, forcing Mr. Kay to continue representing Milosevic would put him in a very unfortunate situation. If he continues under any circumstances to represent Milosevic, then Nico Steijnen will proceed with the effort to have him disbarred.

The tribunal’s other option is to restore Milosevic’s legitimate rights and allow him to present his own defense, but this is unattractive to the tribunal because Milosevic’s defense would disprove the indictment and severely embarrass the NATO powers that fund the tribunal.

Slobodan Milosevic’s legal advisor Zdenko Tomanovic told Belgrade’s B92 radio that Milosevic’s views have not changed.

“All I can say is that Slobodan Milosevic will continue to insist on the court returning the right which was taken away from him, the right to lead his own defense case. He will not hire an attorney, he will ask for the right which he had, to question his witnesses himself, and to prepare the witness testimony on his own terms.” Tomanovic said.

According to Tomanovic, if Milosevic is returned the right to defend himself, he will ask all of the witness that Kay questioned to take the stand again so that he can question them himself.
 

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