Tribunal Criminal Tribunal for the Former Yugoslavia

Page 27021

1 Tuesday, 30 September 2003

2 [Motion Hearing]

3 [Open session]

4 [The accused not present]

5 --- Upon commencing at 10.02 a.m.

6 JUDGE MAY: This hearing has been called to deal with various

7 administrative matters. It should be recorded that the accused is not

8 present, having been detained in the Detention Unit with illness.

9 A report has been obtained from a cardiologist which indicates

10 that the accused is suffering from hypertension with steep rises in blood

11 pressure in moments of stress. He displays symptoms of exhaustion and

12 extreme fatigue coupled with rises in blood pressure to unacceptable

13 levels. It's against that background that the Chamber meets to consider

14 the position.

15 The cardiologist recommends first that there be a period of rest

16 of certainly two weeks - this recommendation was made last week - and

17 thereafter, a regime of four days rest and three days in court. That is,

18 a regime of hearings three days per week, noting that the current regime

19 is four days rest per fortnight. So effectively that will be a day a

20 fortnight at least less for hearing.

21 That, as I say, is the position. We will hear submissions on the

22 future conduct of the case. We have a motion from the Prosecution to

23 discuss, as it's put, the implication of the accused's recurring ill

24 health, on the 23rd of September supplemented on the 29th of September by

25 a further submission. We have the amici response at the order of the

Page 27022

1 Trial Chamber. That is dated the 27th of September. We will hear

2 submissions on those, but bearing in mind, of course, that we've already

3 read the motions, so there's no need for repetition, and also that we have

4 to end this hearing by 11.30 to enable another case to come into this

5 courtroom.

6 There is one other matter for consideration which the Trial

7 Chamber would wish to hear submissions on. It was raised in the

8 Prosecution motion for the anticipated variation of the witness list of

9 the 16th of September. It's been mentioned by the amici as a matter which

10 may be affecting the position and also the accused's health, and that is

11 the fact that the Prosecution witness list is not yet finalised. The

12 amici have referred to these difficulties arising from that. As far as I

13 can see from the present list which we've been given, there are a number

14 of witnesses who are unidentified for a variety of reasons. Speaking for

15 myself, in my view, the time has come for these matters to be finalised,

16 the position being that we are only 36 days from the end of the

17 Prosecution case, having sat for 250 days to hear their evidence to date.

18 So we have in mind to make an order for the finalisation of that list and

19 a specific period for it.

20 So those are the matters which we would wish to hear from the

21 parties about if they consider submissions are desirable. Half an hour

22 each, I think, should be sufficient.

23 Yes, Mr. Nice.

24 MR. NICE: The problems facing the Chamber, the ill health of the

25 accused and his determination to represent himself are not fully covered

Page 27023

1 by the Statute or the Rules, as we explain in our most recent filing, and

2 I would respectfully submit to this Chamber that where a problem

3 unprecedented and/or unforeseen arises, there may in principle be three

4 options available to the Chamber. One is to fashion a remedy for the

5 problem that it faces, mindful that under Rule 5 - although Rule 5

6 envisages non-compliance of the Rules probably by a party - but that under

7 Rule 5 the principle is that non-compliance allows relief only where there

8 is material prejudice to an accused, and of course it's always open to a

9 Chamber to fashion a remedy that does not cause material prejudice.

10 Its second option is to seek a necessary Rule change if it decides

11 that one is necessary, and indeed under the provisions of 6(D) -- Rule

12 6(d), if unanimity of the Judges is a possibility, then relief in that

13 form could be achieved very rapidly.

14 The third, and in our respectful submission wholly inappropriate,

15 response of any Trial Chamber to unforeseen and unprecedented problems

16 would be to say, "Well, there is simply nothing we can do about it," and

17 metaphorically to wring its hands. This is a case where, in our

18 submission, the Chamber must fashion a remedy if remedy is required for

19 the problem by its own acts or by, if necessary, rule changes.

20 Can I say something about statistics, not least because public

21 perception of statistics is sometimes incorrect? Yes. It's 240-odd

22 sitting days that we've had so far. Incidentally and parenthetically, our

23 calculation was that there are 46 days, not 36 days, left. We'll obviously

24 discuss --

25 JUDGE MAY: Certainly 36 days.

Page 27024

1 MR. NICE: Very well. We've been under a misapprehension for some

2 time. We'll correct that. But if it's something like 240 days that we've

3 sat so far, it's perhaps as well to have in mind that that represents

4 something in the region of 50 weeks and that - 50 weeks of five days - and

5 that if one compares this case with a case proceeding in a natural,

6 national jurisdiction probably offering, for a long trial, something in

7 the order of 46 working weeks a year, something of that order, then judged

8 according to the ordinary timetables of national trials, the case has so

9 far only lasted a little over one normal year. To its conclusion it would

10 be obviously likely to occupy about a year and a quarter.

11 I don't have the completely up-to-date statistics of time

12 consumed, but certainly the accused's cross-examination in combination

13 with the cross-examination of the amici has exceeded the time taken by the

14 Prosecution substantially and recently I think the figures have been

15 working at something of the order of two-thirds to one-third time taken by

16 other parties as against time taken by the Prosecution.

17 Those statistics are perhaps important for the public, but they're

18 also important for the Chamber, and I turn then to some other statistics

19 I've been able to provide as to the number of witnesses sent back through

20 the ill health of the accused. Some uncertainty, but calculations suggest

21 of the order of 12 to 14 witnesses sent back in the Kosovo section of the

22 trial, including one major international witness, five witnesses including

23 Ambassador Okun and the Dr. Bosanac sent back in the Croatian section of

24 the trial, and so far in the Bosnia section of the trial, some 21

25 witnesses have been sent back; 14 or 15 of those have returned to give

Page 27025

1 evidence, five or six have been dropped. One witness certainly has been

2 sent back twice on account of the accused's ill health.

3 I'm grateful to the Victims and Witness Unit for providing some

4 base financial figures in case these are of interest to the Chamber. The

5 approximate figure for cost incurred as a result of the ill health of the

6 accused, the direct cost in flights, subsistence allowance, and hotels is

7 of the order of $157.000, but that does not take any account of the

8 extended periods of time that witnesses have had to spend here as a result

9 of the accused's ill health.

10 Your Honour, our filing makes two suggestions. The first relates

11 to the assignment or imposition of counsel to assist the accused. The

12 second, broken into two parts, deals with procedural possibilities.

13 I regret to say that when I reviewed our filing after it was filed

14 yesterday, I see that there was, or discovered that there was a

15 significant omission from paragraph 40 which stopped mid-paragraph. I

16 have in those circumstances had a completed document prepared. I've taken

17 the opportunity to correct one or two other bits of pleading that needed

18 correcting, and I hand in a version that will be filed later this morning

19 as a corrected version.

20 If I could go through a few paragraphs of that filing without

21 taking much time, I can highlight some points for the Chamber's

22 consideration and I will turn to the substantial addition that turns up on

23 page 14.

24 On page 4 of the filing, in paragraph 9, our submissions are that

25 the Rules of the Chamber which were initially very spare in their

Page 27026

1 construction are still not complete. They require regular amendment.

2 They do not cover in detail ill health of the accused or any regime that

3 should apply where an accused represents himself, still less do they deal

4 with those problems when they are joined.

5 I deal at page 5 with such material as there may be in the

6 jurisprudence of the Tribunal going to show that the Chamber does have an

7 inherent power, if such wasn't in any event obvious, to deal with

8 unforeseen problems, procedural or otherwise. The Blaskic case and the

9 Delalic case. The Delalic case was a case where it appears there were

10 rules that probably did cover the position that the Delalic Trial Chamber

11 found itself in. For some reason, it hadn't complied with them, the rule

12 change having preceded the conclusion of the evidence. It needed to

13 fashion a procedure to deal with the problem it found itself in and one

14 was constructed without objection.

15 If we go to -- and that, we say, reflects that which is obvious,

16 that Trial Chambers facing problems that have not been foreshadowed must

17 find a method for dealing with them.

18 Page 6, and at the conclusion of the paragraph that starts on that

19 page, I deal with a particular matter, that is the smoking of the accused.

20 Can I make this point: We haven't yet authority to show medical reports

21 that are now coming to us on a regular basis to our own advisor. There

22 maybe issues of confidentiality to be dealt with before that authority can

23 come our way. In the circumstances, we've only been able to obtain

24 somewhat informal advice on the medical condition that appears to be that

25 of the accused.

Page 27027

1 Nevertheless, it is our understanding from a source that smoking

2 is a significant aggravating factor to the condition of this accused and

3 that cessation of smoking might materially assist him. Obviously that

4 would be something, if considered potentially significant, that the

5 Chamber would want specifically to inquire into and we would wish

6 specifically to inquire into as well, but it is something we would invite

7 the Chamber seriously to consider. It would be surprising if by such an

8 act someone was able to imperil or further imperil the trial timetable of

9 this particular trial.

10 Page 7 --

11 JUDGE KWON: Mr. Nice.

12 MR. NICE: Yes.

13 JUDGE KWON: Let me understand your implication or intention, the

14 reason why you are putting -- you are raising the issue of smoking of the

15 accused in open court.

16 MR. NICE: Yes.

17 JUDGE KWON: Am I correct that you are trying to put to us that

18 illness of the accused, in particular high blood pressure, is caused in

19 part or in whole by his smoking, and that being so, his ill health is a

20 sort of self-inflicted one, so we can go on -- the trial can go on without

21 his presence like in the case when the ill health -- the accused becomes

22 ill like due to his hunger strike?

23 MR. NICE: No. I'm not putting it that high, but I am inviting

24 you to consider that if, and this requires evidence, but if it be the case

25 that elevated blood pressure is aggravated by regular smoking, and if it

Page 27028

1 be the case that incidents of high blood pressure would be reduced in

2 number or quantity by the cessation of smoking, then the Chamber may

3 decide it has it in its power by one means or another to save itself from

4 that aggravating circumstance and thus to improve the prospects of the

5 timetable.

6 If one were to put it, and just by way of analogy, to consider an

7 accused who was over-addicted to alcohol, a perhaps an accused on

8 provisional release who was representing himself and who so rendered his

9 condition day by day as to be incapable of performing the task he had

10 taken upon himself of representing himself, would the Chamber sit idly by

11 and say it should do nothing or would it do what it could to ensure that

12 the person did not harm his condition? Our submission is that he -- the

13 Chamber would always take actions in those circumstances and should

14 consider, on advice, whether it should be taking an action in this.

15 JUDGE KWON: Thank you.

16 MR. NICE: Page 7. I used word on line 3 that I -- or word was in

17 line 3 that I had not intended to use, "corrupted." The word should

18 "halted" and has been amended.

19 Paragraph 18 on the same page. We set out as significant when we

20 turn to the representation of the accused, turning from the general

21 arguments. It is significant that the accused regularly uses more time in

22 cross-examination than might be used by counsel representing him and that

23 that excessive or greater period of time probably in itself aggravates his

24 condition.

25 Over the page to page 8, paragraph 20. We invite your

Page 27029

1 consideration to cases that are analogous although obviously factually

2 very different from the immediate case. That is to say cases where an

3 accused person suffers from a permanent ill health or disability, and you

4 can see the cases we've cited at footnote 14. These are, of course,

5 extreme cases of ill health or disability - blindness, deafness, or

6 something of that sort - and they give rise to authorities which say that

7 such people have to be represented.

8 The Turkish Code on Criminal Procedure, highlighted at the foot of

9 the page, sets out the position particularly lucidly, the Chamber may

10 think, that in such cases a Defence lawyer must be assigned to any

11 defendant who is deaf, dumb, or too impaired to defend himself. In such

12 case, no request for a lawyer is necessary.

13 Now, we do not suggest at all that the accused is unfit by any

14 permanent condition, but he has shown himself by the history to be

15 periodically but now somewhat regularly unfit, and those cases may provide

16 by analogy -- and I repeat because of course the accused will see this or

17 a record of this hearing in due course, I repeat, they are obviously

18 factually distinguishable, and I don't want him to be concerned about any

19 implication to the contrary. But nevertheless by analogy they provide

20 what happens, or they identify what happens in these analogous

21 circumstances and, in our respectful submission, make it imperative that

22 the accused has assigned to him on one basis or another legal assistance.

23 Paragraph 21. We pick up Article 21 of the Statute, drawing to

24 your attention that the Article does not require indigence on the part of

25 an accused before he may be -- he or she may be assigned legal

Page 27030

1 representation. The article says where the interests of justice so

2 require and then goes on to specify that where the accused has

3 insufficient means it shall be without payment, but it doesn't say that

4 there is no discretion in the Trial Chamber to assign legal representation

5 without payment where the interests of justice generally require it.

6 At the foot of the page, we ask the question in what circumstances

7 other than indigence could the interests of justice require the assignment

8 of counsel to an accused and propose that the answers could include when

9 the task of defending himself is beyond him for any reason, when the task

10 affects his ill health to the extent that the whole of the proceedings are

11 at risk, and/or when the public interest in the prosecution of crime and

12 the administration of justice is being defeated by non-assignment of

13 counsel and the trial is accordingly no longer fair, fairness being a test

14 involved in the public interest -- involving the public interest in the

15 administration of justice and not just a reflection of the narrow

16 interests of the accused.

17 Paragraph 24 on this page, in the last three lines we draw to your

18 attention that the Seselj judgement in which -- or the Seselj decision in

19 which standby counsel was assigned reflected that the need may arise for

20 unforeseeable reasons to protect an accused's interest and to ensure a

21 fair and expeditious trial, emphasising, as the decision did, that the

22 Tribunal has a legitimate interest in ensuring that the trial proceeds in

23 a timely manner without interruptions, adjournments, or disruptions.

24 Over the page at paragraph 26, a qualification to make our

25 position clear. We submit that the accused should be assigned -- that the

Page 27031

1 question whether the accused should be assigned the Defence counsel is not

2 one for him to make. This observation, because of his ill health, it can

3 be seen objectively that the single-handed carriage of the entire conduct

4 of the Defence case is beyond him is not to say he's not capable of

5 defending himself when fit, because he plainly is. This is to reflect, of

6 course, the fact that he has, and it may be needs, his associates, and it

7 is an observation further reflected by the order of this Trial Chamber in

8 respect of his Defence where it has decided that he needs administrative

9 assistance, but the assertions in paragraph 26 do not go beyond that.

10 Our proposition at paragraph 28 is prefaced by this sentence:

11 "The Prosecution considers it may be not be appropriate at this stage to

12 impose counsel on the accused in such a way as to deprive him of his

13 personal participation..." and of course we reflect this Chamber's earlier

14 rulings.

15 We suggest that the preferred solution at this stage may be to

16 assign counsel to work in tandem with the accused but in such a way as to

17 reduce his daily workload. One possibility would be for counsel to deal

18 with what are called crime base witnesses, allowing the accused to focus

19 his available energies elsewhere. We observe that there is much that can

20 be done - Mr. Tapuskovic and Mr. Kay have made this manifest - without

21 counsel's instructions particularly in respect of that category of

22 evidence.

23 At page 11 we pick up on imposition of counsel, paragraph 30. We

24 remind you of your earlier -- respectfully remind you of our earlier

25 submissions and of the jurisprudence that goes to make clear that

Page 27032

1 imposition is a possibility and the time may have come for that to happen.

2 One way or another, whether by imposition or assignment, we would

3 respectfully invite the Chamber to consider the possibility of detaching

4 one of the two amici to become Defence counsel, observing elsewhere in

5 this filing the difficulties that would be associated with imposing

6 anybody completely fresh to the case, difficult as it might be, very

7 substantial.

8 We cannot help but observe that Mr. Tapuskovic, who would of

9 course in any event be free following the Chamber's ruling at the end of

10 the Prosecution case, has plainly many of the qualities that might be

11 required and indeed, as we know, well understands the papers which he has

12 fully logged, and plainly has the ability to get on with the accused.

13 JUDGE ROBINSON: Do you anticipate that such a counsel would be --

14 would receive instructions from the accused?

15 MR. NICE: It's one of the cases I think not cited actually in our

16 brief on imposition of counsel in the United States recommends once the

17 decision is made to assign or impose counsel, a Court can really require

18 the Chamber to cooperate -- beg your pardon, require the accused to

19 cooperate and encourage him or her to cooperate and can discharge its duty

20 to provide a fair trial in that way.

21 In this case, of course it would be for the accused to decide

22 whether he would continue on a formal basis communications with

23 Mr. Tapuskovic that seem to be easy on an informal basis from the little

24 we see in the court, and he would be acting to his own detriment to

25 decline to cooperate with somebody made available for his assistance.

Page 27033

1 Compelling people to talk to one another is something no one can do.

2 Encouragement with ultimately sanctions for rejection of an appropriate

3 measure is what a Trial Chamber can do.

4 Yes. And as the Prosecutor reminds me, there is the Barayagwiza

5 case for your consideration, and we have dealt with that extensively in

6 our filings.

7 Can I turn to the other measures that we propose and --

8 JUDGE MAY: Just help us with this: You've heard what the doctor

9 recommends. Do you wish to make any observations about that?

10 MR. NICE: Yes, Your Honour, I have heard what the doctor

11 recommends as to three and four days.

12 JUDGE MAY: You oppose it.

13 MR. NICE: I'm not in a position to oppose it because I haven't

14 seen the medical evidence yet myself. I think it was made available

15 yesterday but it hasn't actually come to me and I don't know why. It's

16 nobody's fault. But if there is a clear recommendation from the medical

17 advisors of three and four days, three days on and four days off, I can

18 recognise the difficulties facing the Chamber. What we say is that -- two

19 things, really: First, we would like to have the opportunity by

20 disclosure of reports to our own advisor --

21 JUDGE MAY: We cannot have a party second guessing the Court's

22 doctors. It's quite out of -- quite out of all proportion and propriety.

23 MR. NICE: Your Honour, I'm not sure there's any question of

24 second guessing, but Your Honour asks me whether I accept or reject the

25 medical advice given. I can't do it without --

Page 27034

1 JUDGE MAY: Given that you have to accept it, is there any

2 argument you would wish to put forward as to why the Court should not

3 follow that recommendation from a legal point of view and administrative

4 point of view?

5 MR. NICE: No, because I can see -- no, I don't think there is,

6 but there is a point I wanted to make which relates to the procedural

7 measures. But first I would say obviously it's something that should be

8 kept under review, and notwithstanding Your Honour's very recent

9 observations to me about second guessing, we would wish and would regard

10 it as necessary for the fulfillment of our duty, to be able to discuss

11 with our own experts or an expert of our own selection, the somewhat

12 technical material provided by the doctors because only in that way can we

13 inform ourselves properly.

14 JUDGE MAY: It may be, but it is, as you recognise, as a matter of

15 grace and as a matter of courtesy that we have asked for submissions on

16 these matters. These are matters very much for the Trial Chamber and for

17 the Court, as they always are, to resolve.

18 MR. NICE: Your Honour, yes. I would, nevertheless, respectfully

19 remind Your Honour that in other jurisdictions when such issues arise, it

20 is by no means unheard-of for competing parties to be given the facilities

21 to consider medical evidence in order to review it, assess it, and it's

22 not unheard-of at all for opposing parties to have access to parties for

23 the purpose of medical examination. But I'm not pressing that at the

24 moment.

25 And the answer to Your Honour's question is that if the doctors at

Page 27035

1 present say three days on, four days off, there's nothing we can say to

2 counter that save for this observation --

3 JUDGE ROBINSON: If you were allowed to discuss this matter with

4 your experts, what would you seek to do with the results of the

5 information that you gather from your experts?

6 MR. NICE: If there were proposals from those experts as to any

7 regime change that the doctors consulting the accused should consider,

8 then we would perhaps invite them to consider them. If there were any

9 observations of an expert kind that could inform the Chamber about the

10 regime that was appropriate, we would seek to lay them before the Chamber

11 and we see no reason why we shouldn't be allowed to do that.

12 I have to say that when this problem first arose, we went to the

13 most eminent and impartial source we could find to deal with the material

14 that was available to us and would like, if it's possible, to return to

15 that source in order to inform us, but I can't -- at the moment Your

16 Honours are really saying to me there's nothing I can do except accept the

17 medical advice, which broadly speaking I agree with, but nevertheless

18 asking me if there's any way I can oppose it. I can't oppose it or make

19 any sensible observations without having access to an expert with whom to

20 consult.

21 But the point that -- yes, and I'm helpfully reminded from

22 elsewhere that in medical matters, second opinions are generally regarded

23 as a good rather than a bad thing. But in the absence of any second or

24 contrary opinion, I can only concur with what Your Honour has proposed.

25 But the point to which I was coming, and which is made in our

Page 27036

1 submissions, our written submissions, is this: Whatever the period of

2 time appropriate for the accused to be at rest may be. It may also be,

3 and this could require further assistance from the medical experts, it may

4 also be that some of that time could be used, could be used in a way that

5 will assist the timetable generally or the objectives of the timetable in

6 bringing this case to a conclusion.

7 And unless there's anything else that the Chamber wants me to deal

8 with specifically on the question of the medical reports as they now are,

9 I'll turn to those procedural possibilities. I've dealt at page 11

10 already with the question of smoking and would invite the Chamber to take

11 advice on that because, as I say, the advice that I got was that reduction

12 in smoking brings about an immediate -- or elimination of smoking an

13 immediate reduction in risk and a substantial one. The same day

14 effectively. But I would need that to be confirmed.

15 Now, our procedural proposals, let me say I accept straight away

16 are in a way a variant of proposals we've already made and had rejected in

17 respect of written statements, although of course what I'm proposing --

18 for I am proposing the use of video recordings of evidence in chief in

19 certain circumstances. What I am proposing is not covered by the Rules

20 because, as the amici made clear in their filing, videos are simply not

21 dealt with. It's an example of the Rules of course not covering every

22 possibility.

23 It seems to us that certainly when witnesses come here and would

24 be sent back, doing no useful court or court-type work, there is real

25 advantage in their evidence in chief being taken in a recorded form, and

Page 27037

1 our proposals are that that recorded form, a video, whether a video from

2 within this very room or a video in another room, could be made available

3 to the accused and the other parties, of course, could be viewed ahead of

4 the return of that witness for cross-examination if he's had to go back

5 because of the accused's ill health, it could count against the

6 Prosecution's remaining time, so that if it could be viewed safely by the

7 accused in the detention centre in one of his rest days, then the

8 implications for the timetable of his ill health are to a degree reduced.

9 JUDGE MAY: So the proposal is that evidence in chief would be

10 given in the absence of the accused if he were ill --

11 MR. NICE: Yes.

12 JUDGE MAY: -- by way of deposition.

13 MR. NICE: There are two alternatives; it's either by deposition

14 or by simply a recorded statement.

15 JUDGE MAY: Yes, but the recorded statement would be made to you

16 or a Prosecutor generally, as I understand it, and not in Court.

17 MR. NICE: Let me flesh it out. It seems to us there are two

18 routes, and as we say in the filing neither of them without attendant

19 difficulties, we accept that, or attendant difficulties if one has a

20 literal reading of the Rules.

21 Route one is the deposition but in the absence of the accused, and

22 that has the advantages of Court supervision of the questioning and the

23 addition of solemnity that a court proceeding brings whether presided over

24 by three judges, one judge, or indeed an officer of the court.

25 JUDGE MAY: The amici could be present and so admissions,

Page 27038

1 objections to evidence could be taken, before of course the accused

2 wouldn't be here to make them if he wanted to make them.

3 MR. NICE: Correct.

4 JUDGE MAY: But I suppose that could be got round by allowing him

5 to make them later and the portion could be excluded, if practical.

6 MR. NICE: Absolutely, yes.

7 JUDGE MAY: I think we've got that one. The other one is that you

8 would do it, the Prosecution, I mean, would do it --

9 MR. NICE: Yes.

10 JUDGE MAY: -- and present the video recording like a child's

11 evidence is in some jurisdictions.

12 MR. NICE: Absolutely, and that's basically an extension of 92

13 bis, but there of course we run into -- there are two difficulties; the

14 first faces the difficulty -- or the arguable difficulty that the precise

15 part of the Rules within which provisions for depositions fall, pre-trial

16 proceedings, doesn't seem to have a section that permits any deviation

17 from the Rules and the Rules require the accused to be present or have the

18 ability to be present for cross-examination. So that's difficulty number

19 one.

20 Then when we turn to the second possibility, which is that we take

21 the statement in some room - we might be allowed to use the courtroom, but

22 some room - and it's just the Prosecution statement so that it's under 92

23 bis, the difficulty there is that the evidence would like as not be

24 covering the acts or conduct of the accused so it wouldn't meet the

25 technical requirements of 92 bis. And it's at this stage, subject to what

Page 27039

1 we say is the wide scope of Rules 89 and 90 to allow you to be

2 constructive in facing problems of this kind, it's at this stage that the

3 Trial Chamber may need to fashion its own remedy or fashion its own

4 procedure to deal with what is unprecedented and unforeseen.

5 JUDGE MAY: The difficulty is what -- is to work out what the

6 saving would really be if you, say, took a deposition. Of course we're

7 using 92 bis so there's only a limited number of witnesses to whom it

8 could apply, but supposing those limited number of witness it were used,

9 you would then have to build in time, of course, for the accused to see

10 the recording.

11 MR. NICE: Yes.

12 JUDGE MAY: That would be one thing you would have to do, and to

13 that extent you may not make a great saving in court time.

14 MR. NICE: I came to this in response to Your Honour's question

15 about three and four days, and as I was hoping to make clear then when you

16 say do I accept it -- do I accept it as a sort of clear and final

17 proposition for how much time could be allowed in court, I said yes, but

18 with the reservation, because the doctors won't have considered this, that

19 there may be no harm to his health in his using some of the time when he's

20 in the Detention Unit, some of the four-day periods, reviewing in advance

21 the evidence in chief on video of witnesses to come, so that that is the

22 outstanding questioning, and it's one question the answer to which could

23 involve saving time.

24 There are technical difficulties with this. It's not going to be

25 easy, but the problems we face are not easy, and any day of time saved

Page 27040

1 from the projected long timetable is time well saved.

2 We were stimulated to think of this as a potential remedy in light

3 of the large number of witnesses here at the beginning of last week or the

4 end of the week before when the accused fell ill, ready, lined up to give

5 evidence in an orderly way, some of them coming from other continents, all

6 of them giving important evidence, and in the event we sent them all back

7 at substantial expense and personal inconvenience with nothing being

8 achieved apart from that which can be achieved in proofing sessions. And

9 it occurred to me then that if it had been possible to take from all of

10 them, I think three or four, their evidence in chief and serve it on the

11 accused, then when the accused was fit to cross-examine them, they could

12 come back at much less inconvenience and with savings of court time of the

13 time I've already proposed. And --

14 JUDGE ROBINSON: If that procedure were adopted, that is the

15 evidence taken in chief by the Chamber, the amicus would be present and

16 would be able to do the kind of cross-examination that the amicus does,

17 and the evidence, it seems to me, would have to be subject to any

18 objections that the accused may later raise. Then in that case, we

19 wouldn't be looking at appointing any counsel, whether standby or

20 otherwise.

21 MR. NICE: It wouldn't be necessary for this exercise that standby

22 counsel be assigned or counsel be imposed, but obviously if such counsel

23 was assigned or imposed, that would arguably add to the satisfactory

24 nature of this proceeding. The proposals are independent one from the

25 other but they work rather nicely in tandem. Your Honour is quite --

Page 27041

1 JUDGE MAY: Sorry to interrupt you, but just while we're on that

2 train of thought, the difficulty is how much further do we get by a

3 standby counsel who is without instructions - and this accused has been

4 adamant that he would not give instructions - how much further do we get

5 than we do with the amici who are present here and, as you pointed out,

6 cross-examining in any event? Do we gain anything except in terms of

7 formality?

8 MR. NICE: Can I come to that after I've made two other points in

9 answer --

10 JUDGE MAY: Could you do it in five minutes?

11 MR. NICE: Certainly. In answer to His Honour Judge Robinson's

12 point. His Honour Judge Robinson is quite right, of course, and we set

13 this out in the pleading, that the accused would have to have the right on

14 coming into court to cross-examine to challenge the admissibility of

15 passages of the examination in chief. I accept that.

16 As -- I've forgotten the second point I was going to make in

17 answer to His Honour Judge Robinson. To Your Honour Judge May's

18 observation about the practicality of assigning or imposing counsel, this

19 is a problem that accused whose circumstances require imposition or

20 assignment of counsel always face. Once the Chamber makes the decision

21 that it is necessary in the interests of justice to assign or impose

22 counsel and explains the position to the accused who wishes to represent

23 himself, as in the Seselj Chamber, then that judgement that this is a

24 correct course to take is one with which the Chamber has of course to live

25 and the accused has to live with the reality that he can reject what is

Page 27042

1 offered and he can decline to cooperate but ultimately at whatever risk

2 that brings to him because the Chamber will have decided that assignment

3 or imposition of counsel in the circumstances of the case does not

4 prejudice the accused. It may be that the accused prejudices himself

5 thereafter, but that does not mean that the trial is rendered unfair or

6 unsatisfactory.

7 These are difficult decisions. But here we have an accused who is

8 determined to represent himself -- I remember now the second point that I

9 was going to deal with in answer to one of Your Honours. He's determined

10 to represent himself but there may well be times when, for example, with

11 crime base evidence it would be absolutely appropriate for the case to

12 proceed in his absence providing there is assigned or imposed counsel

13 because that evidence could be dealt with in his absence. That's one

14 advantage that such counsel could bring. But we're not suggesting that

15 there should be -- in any event we're not suggesting that there should be

16 wholesale replacement of the accused as advocate in his own cause, only

17 that there should be assigned counsel or imposed counsel available to do

18 that which needs to be done when the accused is unwell. And also to do

19 what can be done so as to mitigate the consequences for the accused's

20 health of his attempting to represent himself with every witness at every

21 stage and for every cross-examination. There must come a time when the

22 accused will realise, if our understanding of the medical reports is

23 right, that what he is doing is damaging his own interests and that it is

24 in his interest as well as in the proper interests of this Tribunal that

25 he cooperate.

Page 27043

1 Your Honour --

2 JUDGE KWON: Mr. Nice.

3 MR. NICE: Yes.

4 JUDGE KWON: What kind of cases do you have in mind when you say

5 that we can proceed in the absence of the accused? If you can give me

6 some examples.

7 MR. NICE: The only examples that I am prepared to contemplate at

8 the moment is if he is surprisingly unwell, unexpectedly unwell, and that

9 there are perhaps crime base witnesses and he had assigned counsel, then

10 they could be taken. I wouldn't at the moment go further than that.

11 JUDGE KWON: And what would be the legal basis for that?

12 MR. NICE: The legal basis for that would be that with assigned

13 counsel and with the liberty of the Chamber to fashion remedies for

14 particular problems, it could achieve that which the accused's consent to

15 his absence could achieve. We know that in other cases from time to time

16 the accused consents to the trial continuing in their absence. If you

17 have a crime base witness here, the accused suddenly falls ill, or a

18 series of crime base witnesses here and you had assigned counsel

19 cross-examining in the way that, for example, Mr. Tapuskovic as amici has

20 been able to do, then the Chamber might decide that it would be safe to

21 proceed in the absence of the accused, fixing him with, as it were,

22 implied consent, recognising that he would see the videos of the evidence

23 and would always be in a position, personally or through his assigned

24 counsel, to seek recall of the witness for further cross-examination

25 later. That is the only example of proceeding in the absence of the

Page 27044

1 accused that I'm prepared to contemplate at the moment.

2 JUDGE KWON: So your suggestion in your submission is going along

3 with the provision of the Statute, Article 21, which gives the accused the

4 right of trial in his presence.

5 MR. NICE: Yes. Wherever possible, of course.

6 JUDGE KWON: And how long would you say that we can continue in

7 his absence if he -- his -- he falls ill unexpectedly? How long do you

8 think we can continue?

9 MR. NICE: I don't think one can decide that save on the facts as

10 they may arise, but obviously not indefinitely and not for very long, but

11 it might be possible. But perhaps the standby counsel's greatest use

12 would be for witnesses examined in his presence where he could and this is

13 a proposal I think that can take shape perhaps in the Seselj case, where

14 he -- counsel can cross-examine substantially and it may be possible at

15 the end of his cross-examination that the Chamber could discover from the

16 accused whether there was material that he regards as not satisfactorily

17 explored and then decide whether the accused should cross-examine on his

18 own account. Something to that effect would again not only save time

19 because certainly counsel, Mr. Tapuskovic or any other professional

20 counsel, would be briefer in cross-examination, but it would also, one

21 would hope, relieve the accused of some of the stress that may be

22 aggravating his medical condition.

23 Your Honour, I have a number of procedural matters to notify you

24 of. They won't take very long. Shall I deal with that right at the end?

25 JUDGE MAY: Yes, because we ought really to leave here. I'm not

Page 27045

1 sure that every counsel is quicker. That's not universally the rule, but

2 we will obviously consider these matters. One matter we will have to

3 consider is the time which were we to assign new counsel the time would

4 have to be allowed for that counsel to prepare the case.

5 MR. NICE: As our pleading makes clear.

6 THE INTERPRETER: Microphone for Mr. Nice, please.

7 MR. NICE: Sorry. As our pleading makes clear, we've foreseen

8 this difficulty. This only works if one of the amici or possibly one of

9 the accused's associates fills that role.

10 JUDGE MAY: Yes. Thank you.

11 MR. NICE: And I think -- I have a recollection, I've been unable

12 to find it, that I dealt with this potentially arising difficulty right at

13 the beginning of the case but I haven't been able to find the reference.

14 MR. KAY: Your Honours, at this stage of the trial with 36 days to

15 go, the Prosecution are advocating one of three courses, essentially,

16 changes to the Rules to accommodate this trial, expansion of present Rules

17 outside their present ambit into a different shape and form to accommodate

18 this trial, and thirdly, the imposition of counsel upon an accused who is

19 representing himself.

20 This accused has a genuine medical condition which has been

21 present with him for many years as the reports show. It has been a

22 condition that has been genuine throughout the course of this trial, and

23 there has been advice given to this Trial Chamber at various stages as to

24 the effects of the trial upon his health.

25 There are two medical opinions that the Court has been given.

Page 27046

1 There are the physicians dealing with him, and then there is the

2 consultant cardiologist, who is an eminent Dutch practitioner, who has

3 provided the latest report to the Court and has indeed been providing

4 reports to the Court at earlier stages in the trial. And I particularly

5 refer the Court to the submissions by the amici on the 7th of November,

6 2002, where Ms. Higgins set out in a schedule in paragraph 6 a detailed

7 summary of the various stages of ill health that the accused has

8 experienced to that date almost a year ago in this trial.

9 Various suggestions have been made at this stage that he gives up

10 smoking, that he be banned from smoking. The only conditions I know is

11 where people are given bail or provisional release and told not to go to

12 public houses or visit various sites that might cause offence to those who

13 have given them bail. I don't know whether the Prosecution is suggesting

14 provisional release and he be banned from smoking. It simply wouldn't

15 work, and that may cause more stress upon this man who has lived a way of

16 life that may be completely consistent with that from the culture from

17 which he comes and that that may impose more stress upon him at this

18 particular moment.

19 The recommendation at 36 days to go for the Prosecution case is

20 that we sit three days and have a four-day break of rest. With 36 days to

21 go, that would give us 12 weeks if we were to work Monday, Tuesday,

22 Wednesday. It would give us to the end of December, probably, to get

23 through the remaining days of this Prosecution case.

24 The Prosecution, perhaps, have always had their eye fixed on the

25 end of the year, the end of the court term being around about December the

Page 27047

1 19th, and to fit their witnesses within that period of time would be

2 something that we submit is entirely open to them.

3 One of the great problems in this case has been the disclosure of

4 the materials by the Prosecutor upon the accused and the other parties

5 involved. The procedure is this: There is the disclosure of evidence

6 upon the confirmation of the indictment to the accused. That may be a

7 vast volume of material of a very general nature. There is then the

8 disclosure of the evidence under Rule 68, which to be used during the

9 trial of witnesses intended to be called. We have had many statements

10 from witnesses who have not been called. We have had many pages of

11 material served that has not been used. This is entirely aside of the

12 Rule 68 exculpatory material.

13 This system that has been used without a clearly defined list of

14 witnesses at the start of the trial, with the exhibits relevant to those

15 witnesses and the statement of the witnesses who are going to be called,

16 who will be called does not happen. Instead, we get a complete omnibus of

17 all the materials that might be available, that might be used in a case of

18 this scale, and it takes a great personal toll on those involved. In many

19 respects, the exhaustion and fatigue suffered by the accused can be said

20 to be as a direct result of a failure to shape and hone a case from day

21 one. We are still talking about witnesses who have not been identified.

22 We are still under a regime where the accused receives witness statements

23 from a witness who is to be called and to be identified ten days before he

24 is due to be called. The fact that his materials may be within those

25 500.000 pages somewhere or other is of no use. From a personal

Page 27048

1 perspective, I have found it very difficult to track materials in this

2 case when you're using the entire range of materials that is available.

3 There is a recommendation to this Court by the doctor who is

4 presently treating him, who I said is an eminent cardiologist, which is

5 clearly an indication that this new regime should be tried out. It would

6 have to be monitored to ensure that the accused was not further

7 imperilling his health. But the unpleasant position may be for the

8 Prosecution in this case that sometimes an accused's health gets to such a

9 state that sick people do not stand trial. And the consequences of that

10 are something that may have to be considered at an appropriate stage.

11 JUDGE MAY: Wait a moment. Before you get to that submission, you

12 must consider the Prosecution's submission which is that part of the

13 problem may be smoking, which you've already dealt with, and part of the

14 problem may be the course which the accused has put upon himself, which is

15 to defend himself. If he hadn't taken that course, if he hadn't brought

16 the consequences upon himself, then he may not have been as unfit as he

17 is, and I would be grateful to hear submissions from you as the amicus, of

18 course, the friend of the court, as to how it would be, in your

19 submission, appropriate to continue with the trial given the difficulties

20 which have,

21 occurred.

22 MR. KAY: As we know, the accused has a right to defend himself.

23 When you choose to be represented by a lawyer, you give up that right.

24 You put that right into the hands of someone else. In many respects, it

25 is a very trusting right if you are an intelligent, competent person to

Page 27049

1 try and devolve your rights to someone else and hope that they will do a

2 job on your behalf with which you are satisfied.

3 If you do give up that right, you give a power of attorney, and

4 you are silent thereafter until you give evidence in court. You are more

5 of an observer within the proceedings until the moment when you choose to

6 give evidence. This accused plainly does not wish to play that more

7 passive role that the court systems have available to those who choose to

8 use lawyers.

9 This accused was the head of state. He was a man whom the

10 Prosecution say was central in all the events and affairs which happened

11 in Croatia, Bosnia, and Kosovo. In our submission, it is perfectly

12 understandable that a man in that position, given the allegations against

13 him, would trust in his own judgement, his own skills, and his own

14 knowledge and understanding of the events and affairs of the former

15 Yugoslavia to represent himself.

16 One of the problems with imposition of counsel in a procedure that

17 this Tribunal has, which is largely adversarial but with modifications in

18 a form that make it understandable, perhaps, within civil proceedings, is

19 that there are no instructions given to an imposed counsel if an accused

20 does not wish to cooperate. And if you have no instructions, it is very

21 difficult for counsel on behalf of an accused whose been imposed to either

22 know he's putting the right case or even to understand the case of the man

23 that he is representing.

24 JUDGE ROBINSON: He would have to speculate?

25 MR. KAY: He would have to guess, second guess. And one of the

Page 27050

1 difficulties when you start doing that is your guess may be wrong. Your

2 guess may be one particular route, and you may think you understand what

3 the issues involved were, but you may be wrong. And after that trial,

4 that accused could say, "Well, that of course was not my defence at all.

5 He completely misunderstood of nature of my defence." And the fairness of

6 that trial would be severely called into question.

7 Within a system of inquisition, interrogation, the investigative

8 process, it is a more understandable tool where the Bench are more

9 proactive and, in fact, direct and control the proceedings and

10 investigations, to have such a proactive counsel, an imposed counsel as

11 they do within legal systems such as Germany or the former Yugoslavia.

12 But in this kind of process where you are Judges not playing a role within

13 the investigative system but are seeing what evidence and arguments are

14 produced by the participants in the trial, the Prosecution and the

15 Defence, it is impossible for you to be certain that the arguments that

16 are being presented by the imposed or standby counsel are indeed the right

17 arguments on behalf of that accused, because you yourselves are not within

18 the investigation nor controlling the investigation.

19 And so for my part, although there has been a ruling in another

20 case within this Tribunal which has yet to be tried, for my part, my

21 submission to this Court is that such a system cannot work. It does not

22 sit right with the principles of trial that we have here.

23 The --

24 JUDGE ROBINSON: In that case, Mr. Kay, it was held that the right

25 to defend oneself in person is compatible with and can co-exist with the

Page 27051

1 right to be represented by counsel. That's something which I think needs

2 to be considered. In other words, the word "or" which you find in this

3 Statute, there that Trial Chamber held did not prevent the right to be

4 represented by counsel from sitting with the right to self-representation.

5 I don't know whether you have any comments on that.

6 MR. KAY: I think, in fact, it's been used in a conjunctive form

7 rather than an "or." It's being used as an and, as an addition. It's

8 being used as a right to represent yourself and having assigned counsel.

9 That's really been the effect of it. The authority cited of the trial

10 that's taken place from the Rwanda case, the case of Barayagwiza is a very

11 difficult set of circumstances where that accused has boycotted the trial,

12 is not representing himself, refuses to leave his cell. His originally

13 assigned counsel who was representing him has followed, of course, the

14 instructions of his client which was that you do not cooperate and has

15 withdrawn.

16 So the Court in those circumstances with no accused in court

17 representing himself, has imposed a counsel to try and make the best job

18 out of what really is a very poor lot, and it is going to be very

19 difficult within the proceedings of an adversarial system to really

20 reconcile the benefit of that.

21 But as I say, the other case within this building has yet to be

22 heard, of course, and --

23 JUDGE MAY: If you were right, there isn't a benefit from what has

24 happened in Barayagwiza. Means that the accused could simply bring the

25 proceedings to a halt by refusing to come and that cannot be in the public

Page 27052

1 interest.

2 MR. KAY: The issue there is whether imposed counsel are any good

3 at all in the sense that they have had no instructions. This is an

4 accused who has boycotted, who has chose to absent himself.

5 JUDGE MAY: A court cannot be powerless in those circumstances to

6 try a case.

7 MR. KAY: Absolutely, and what I would say is that they can try

8 him in his absence. They chose the route of having an imposed or standby

9 counsel to deal with the situation. They could have appointed an amicus

10 like we have in this Court but wasn't argued before them at the time, and

11 if you look at the original trial materials, I think that they thought

12 only down one particular route.

13 JUDGE ROBINSON: In my view, the legal basis for what was done

14 there was a determination, probably not expressed, that in those

15 circumstances, the accused had waived his right. And that brings me to a

16 submission by Mr. Nice, which is that were the Chamber to appoint standby

17 counsel, and standby counsel would be encouraged to communicate with the

18 accused or perhaps the accused might even be required to communicate with

19 him, but if the accused fails to communicate instructions to the standby

20 counsel, then I understand Mr. Nice to be saying that in those

21 circumstances, the Chamber should construe that the accused has waived --

22 has waived his right, and the trial could proceed in his absence. I

23 believe that's what Mr. Nice was saying.

24 MR. KAY: In a way, it's trying to engineer the problem and

25 provide the solution you want. It's trying to put the accused into a

Page 27053

1 corner. It doesn't actually deal with the principles of the trial and the

2 fairness of the trial. It doesn't deal with that issue as to whether

3 there are any instructions or as to whether whoever has been appointed

4 understands the case. It is a window dressing. In many respects for

5 counsel to undertake that, it is very deeply unsatisfactory to that

6 counsel because they are speculating, second guessing what the accused's

7 particular defence would have been or what he said in a meeting.

8 For our part, we can envisage the evidence that we've heard in

9 this trial from many witnesses who have had personal meetings with

10 Mr. Milosevic. We have to wait and see what he says about those meetings

11 before we decide in which way to cross-examine upon them, whether he

12 accepts the record of the meeting or whether he says, "Well, that's not

13 how that meeting went ahead. I said something entirely different. In

14 fact, I don't remember you being present at that meeting." And the Trial

15 Chamber will be familiar with many instances of witnesses giving evidence

16 where that particular problem has come alive, and for our part as amicus,

17 we listen very carefully to what he says to try and pull out the drift of

18 his case and to understand what aspects of the Prosecution case is

19 accepted by him and what is not.

20 These are subtleties of the role of a Defence counsel that are

21 simply lost by imposing a counsel within the trial where you will then get

22 no cooperation at all, not even on an informal level, not even on a

23 helpful level between the parties, because it is in direct confrontation

24 with the accused's wish and right to represent himself that he has

25 exercised within the course of this trial in a proper and meaningful way.

Page 27054

1 He is not engaged within a process of disruption or boycott that causes

2 the Court to look at his particular problem through a different

3 perspective.

4 So for our part, we submit that with 36 days to go of the

5 Prosecution case that this would be taking a decision in haste in the

6 extreme and changing a fundamental nature of this trial that might not be

7 of any assistance to the Trial Chamber in dealing with its determination

8 of the issues in relation to each of the indictments that has been joined

9 against him.

10 We've got some important witnesses still to come if we consider

11 the witness list. If we consider those who are to arrive. Some of whom

12 have had direct dealings with the accused. For us to be in a position

13 where we are representing in some form that we have basis for any line of

14 questioning or any line of incomprehension of what had taken place would

15 not in fact be the true justice of the situation.

16 JUDGE ROBINSON: Would you consider a scheme in which a counsel is

17 appointed and the accused is encouraged? That's a term that was used by

18 Mr. Nice, and I rather like it. Encouraged to communicate with that

19 counsel. To communicate instructions.

20 MR. KAY: From my understanding of the situation, he won't do

21 that, and it would be a hope that would not be founded on the real basis

22 of how he views this case.

23 One must remember, of course, he starts from the perspective that

24 he doesn't recognise the legitimacy of the Tribunal. That has been a --

25 JUDGE MAY: That really cannot be a matter which we take into

Page 27055

1 consideration. What -- we've heard his views. He's expressed them. It's

2 a matter for him, not a matter for the Tribunal.

3 MR. KAY: I raise it because it gives us an understanding as to

4 whether he would cooperate with anyone imposed, which is why I say if you

5 consider his representations on that level, the chances are nil, in my

6 view, that he would cooperate at all with anyone that was imposed upon him

7 and to whom he was encouraged, or with whom he was encouraged to

8 communicate. That is, as I say, the attempt to try and box him into a

9 corner, and it might not be satisfactory in the long-term for this trial

10 if that particular position was to be adopted.

11 JUDGE ROBINSON: Can you explain boxing him into a corner? Because

12 certainly I never had anything like that in mind.

13 MR. KAY: Well, which way do you get out of that corner? You have

14 to then fight your way out in terms of the particular situation you're in.

15 There would be grave implications, I think, for the cooperation within

16 this trial in the form that we've had to date. Sorry, Judge.

17 JUDGE KWON: Sorry, Mr. Kay, to interrupt. Let me rephrase my

18 colleague's question. If the amicus are allowed to communicate with the

19 accused, let's assume, will the accused not cooperate with you?

20 MR. KAY: No. No. The accused would not cooperate with us.

21 That's perfectly clear. His principles, and I have an understanding of

22 them from what I have heard and been told, that would be quite clear that

23 we would then be moved into a different position from where we are

24 neutrally at the moment and assisting as we are at the moment into an

25 entirely different position, and that, I am sure, would not be helpfully

Page 27056

1 received by him.

2 I have offered assistance on occasions when there have been

3 difficulties, logistical as well as health problems, to try and make

4 things easier, but it's quite clear how far our remit goes with him and

5 his associates, and there may be a personable level of expression which is

6 quite helpful and good, but on a more formal level, if we were to start

7 being moved into a different category, it's quite clear to me that that

8 would not be well-received.

9 As I said, I have offered on several occasions help and resources,

10 but they have been politely refused and with a justification of it, that

11 that would be an alteration of a position of principle which is held by

12 them. And the position of principle within these Rules is that the

13 accused wishes to represent himself.

14 JUDGE KWON: Thank you. I note that this question was not exactly

15 the same one as the one which was put by my colleague.

16 MR. KAY: I hope I answered the right one, though.

17 JUDGE KWON: Thank you.

18 MR. KAY: So looking at the time now, and I know that there is

19 other business, the Trial Chamber has had the various papers to date in

20 September as well as previous filings made by the amici in which we

21 discuss the legal implications of this, and I know that the Trial Chamber

22 has read them.

23 JUDGE MAY: Thank you. But could you just help us with this: The

24 one suggestion which is made which we might consider - it will be a matter

25 entirely for us but we might consider it - is the possibility if the

Page 27057

1 accused falls ill again, taking -- if the regime is the three-day week,

2 but even so, if he falls ill yet again, the possibility of taking

3 depositions from witnesses, given all the problems which they have, we've

4 heard that 30-odd have been sent back, I think, with the right of the

5 accused to of course cross-examine. I know it doesn't say that in the

6 Rules, but we are having to fashion --

7 MR. KAY: The Rules would have to be changed to accommodate that.

8 JUDGE MAY: We could accommodate the Rules too, though, presuming

9 -- if it was in the interest of the expeditious and fair trial which we

10 have to conduct.

11 MR. KAY: Again, if this is a high-level witness where the accused

12 has had personal dealings, it would be a very difficult issue to

13 cross-examine him upon the taking of the deposition without having

14 instructions.

15 JUDGE MAY: I'm not suggesting that you would have to

16 cross-examine. What's being suggested, as I understand it, is that the

17 accused would have the opportunity of viewing the video and then

18 cross-examining in due course himself. I mean, the obvious disadvantage

19 is that he would not be able to see the demeanour of the witness directly

20 when the witness is giving evidence, but apart from that, is there any

21 prejudice to him?

22 MR. KAY: I understand which particular part of this issue you're

23 looking at now, Your Honour. I don't think it would save any time at all,

24 because the witness under this regime would still have to come for

25 cross-examination, and 92 bis witnesses at the moment take generally five

Page 27058

1 to ten minutes by the Prosecutor, in chief, and then the accused

2 cross-examines. With the attendant difficulty over what was said in the

3 video, what was admissible in the video, other arguments that might arise

4 concerning the video, I would anticipate that this may even take longer

5 than our present form of using Rule 92 bis.

6 The Prosecutor also says, well, he can view these videos when he's

7 out of court. As I understand it, the consultant cardiologist has

8 recommended there be four days' rest, and if I understand "rest" properly,

9 that means not working. Having this accused watching videos and preparing

10 in that period of rest may well defeat that which it is intended to

11 achieve, because he may get fatigued again. It will definitely affect his

12 health. He has got the attendant difficulty of looking at the defence case

13 as well, as we come to that aspect of this trial upon the this conclusion

14 of the Prosecution case.

15 JUDGE ROBINSON: He would have to prepare at some time, even on

16 the basis of the cardiologist's recommendations. When would he prepare;

17 just in the three days?

18 MR. KAY: At the moment he would be reading the original materials

19 and exhibits, watching the video forever how long that would take. His

20 workload would be greatly increased, and he would be attempting to put

21 together in the video, from the video that which has been said and try to

22 link it up with the evidentiary materials.

23 We've seen on many occasions, and it's not just been Mr. Milosevic

24 who has lost which way a particular line of questioning is going and which

25 document is being referred to. It's bound, in my judgement, to cause more

Page 27059

1 difficulty to the process. It has -- I'm not being rude when I say it has

2 a superficial attraction. It is superficial in a way because it isn't the

3 real thing and it would have difficulties in trying to follow what was

4 being said.

5 In my view, I don't think any court time at all would be saved by

6 producing evidence in that way, because the witness has only got to return

7 again. What was said at the time of the taking of the video might well be

8 under challenge, scrutiny, it might be contested as to the legitimacy of

9 it.

10 When you lose the solemn authority of the court within which a

11 witness stands so that the taking of the material is elsewhere, you lose

12 and damage an aspect of integrity to the proceedings.

13 JUDGE MAY: The suggestion is the deposition would be taken in

14 court. That's the suggestion. So that aspect of it. I don't mean to

15 trouble you, but I think we must ask you to come to a close, please.

16 MR. KAY: Yes. In my view, it's not the best way of -- criticism

17 has been made of the accused over the amount of time that's been taken by

18 him or us in questioning. Can I just knock that completely to one side.

19 The procedures that we have adopted here is to enable the Prosecutor to

20 call more material, call more witnesses by having a shortened form of

21 presentation, and so all their materials to a great extent go in in

22 written form as evidence as the Rules are applied. So a statistic being

23 used to justify that type of argument is entirely unsatisfactory and does

24 not represent the reality of the situation within this trial, and I'm sure

25 the Trial Chamber are very well aware of that.

Page 27060

1 JUDGE MAY: Thank you. Mr. Nice, I'm afraid it's five minutes.

2 MR. NICE: Five minutes in reply. The proposals by my learned

3 friend do not seem to meet that which the amici are obliged to do which is

4 to act in a way which designated counsel considers appropriate in order to

5 secure a fair trial to the extent that they have raised no proposition by

6 getting -- getting round for meeting the difficulties other than simply to

7 say that the accused must have all his rights, he will sit the minimum

8 amount of time - not the minimum - the amount of time and no more, he must

9 not work in the other four days, and if the trial has to come to an end it

10 has to come to an end. Nothing, if I may respectfully say so,

11 constructive in that to help us meet the problem.

12 His observations about material served fail to recognise that

13 although I recognise that the amici get notification by identification of

14 documents to be produced, the accused has always had material served twice

15 by Ms. Dicklich and the other case managers so that he has the material

16 related to the particular witnesses served him specifically to enable him

17 to prepare and he hasn't actually -- he complains generally but he hasn't

18 complained that he hasn't been given material on a case-by-case basis.

19 The witness list, we have at all times notified at the earliest

20 opportunity when witnesses are not going to be called, starting off, as

21 the Chamber will remember, with saying don't prepare Sarajevo and

22 Srebrenica until we can identify the material later because there's too

23 much. There is an enormous amount of material. It derives from the

24 position of the accused and the crimes confirmed in the indictments with

25 which he is charged.

Page 27061

1 The witness list recently has been further and further refined,

2 and the Chamber will remember I put everybody on notice of the last 20 to

3 be called and suggest -- to be prepared and suggested no others. There is

4 a final witness list, or not a final witness list, an effectively final

5 witness list to be prepared. The only thing standing in its way at the

6 moment is the Sarajevo 92 bis rulings which we have been expecting on a

7 daily basis and which we need to be able to reflect on in order to make

8 our final witness list, but that's coming really this week one way or

9 another, and I'll be pleased to provide that very soon.

10 Mr. Kay acknowledges a great deal of the accused's case is well

11 known, much better known that it would be starting from scratch. And in

12 those circumstances, if counsel is assigned and if encouragement,

13 requirement or otherwise of encouragement -- sorry. If encouragement is

14 given to the accused and if he declines to respond to that encouragement,

15 why then the Chamber will simply have to act on the material that it has

16 given the standard burden of proof. If that material is not

17 cross-examined to by assigned counsel on the basis of communications by

18 the accused when he has been encouraged to communicate, then the

19 responsibility would be entirely his.

20 My learned friend Mr. Kay's suggestions, although I can't develop

21 this argument now for want of time, basically hand over to non-cooperative

22 accused in a variety of circumstances the ability to completely thwart

23 justice.

24 We invite the Chamber to give consideration to the various matters

25 we've raised as positive procedural reforms that will enable this case to

Page 27062

1 go more swiftly.

2 Incidentally, I know that the smoking point is a small point but

3 I'm reminded by Mr. Ruxton, who was with me when we met the consultant

4 I've been telling you about on limited information, the act we refer to

5 was said to have been likely to bring about a reduction of risk of 30 per

6 cent immediately. Now if that's right, and that's why I suggest that

7 further medical inquiries may be required, that's simply not

8 insignificant. 30 per cent reduction of risk is a really significant

9 event.

10 Your Honour, I had about -- a number of matters of information to

11 give you. Can I select just one or two? The Sarajevo ruling will greatly

12 assist us in preparing the list. We are facing now several witnesses who

13 may be producing -- who come to you partly because they've produced books.

14 I think you know one or two already. Other witnesses who have written

15 books. We should perhaps consider a regime for the preparation of such

16 witnesses. It might be, rather than inviting everyone to read all of the

17 book, that each party should identify up to a fixed number of pages. We'd

18 be grateful for the Chamber's assistance in deciding that, but the first

19 such witness is not very far away, as the Chamber knows, and I can see up

20 to another two or three such witnesses coming before the end of the trial.

21 I'm anxious that before the end of the trial we can cooperate with

22 registry and with your own staff to agree the exhibit lists so that they

23 can't be a problem, and in the down time that's available perhaps we can

24 start work on that now.

25 Your Honours will find two applications in respect of two

Page 27063

1 different witnesses -- no, three applications with you, I hope, today.

2 Each of them is urgent for different reasons. We'd be very grateful if

3 you could attend to them or have them attended to as soon as may be.

4 Your Honour, that's, I think, five minutes.

5 [Trial Chamber confers]

6 JUDGE MAY: The Court will make this ruling now: In the light of

7 the medical recommendations, from next Monday, the Court will sit three

8 days a week. The appearance of the accused next Monday will of course

9 depend on the medical recommendation as to his state of health.

10 The other submissions will be taken into consideration. The

11 accused will have the opportunity of reading the transcript of this

12 hearing, and if he wishes to make submissions on them, we will hear them

13 in due course.

14 The Court is adjourned.

15 --- Whereupon the Motion Hearing adjourned

16 at 11.36 a.m.