Case No.: IT-02-54-T

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Order of:
19 May 2005

PROSECUTOR

v.

SLOBODAN MILOSEVIC

_____________________________________

THIRD ORDER ON THE USE OF TIME IN THE DEFENCE CASE
AND
DECISION ON PROSECUTION’S FURTHER SUBMISSIONS ON THE RECORDING AND USE OF TIME DURING THE DEFENCE CASE

_____________________________________

Office of the Prosecutor:

Ms. Carla Del Ponte
Mr. Geoffrey Nice

The Accused:

Mr. Slobodan Milosevic

Court Assigned Counsel:

Mr. Steven Kay
Ms. Gillian Higgins

Amicus Curiae:

Prof. Timothy McCormack

THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal", "Tribunal"),

BEING SEISED OF the "Prosecution’s Further Submissions on the Recording of the Use of Time During the Defence Case" ("Motion"), filed on 28 April 2005 by the Office of the Prosecutor ("Prosecution"), in which it seeks the following relief:

1. That the Trial Chamber create a separate category of time denoted as "exceptional administrative matters" for administrative matters that do not arise out of the normal conduct of a case at the Tribunal, and that this category not be counted as part of the 240 hours allotted for cross-examination and regular administrative matters; and

2. That the Trial Chamber amend, retrospectively, the recording of the use of time during the Defence case to reflect the substantial amount of time spent on "exceptional administrative matters",

HAVING ISSUED an "Order Re-Scheduling and Setting the Time Available to Present the Defence Case" on 25 February 2004 ("Order Setting Time"), in which the Trial Chamber noted that "the Accused should have the same time as the Prosecution had to present his (the Accused[’s]) case in chief", and set out the following calculation of time available to him:

1. The Prosecution spent approximately 360 hours presenting its case in chief, or approximately 90 sitting days, which will be the amount of time for the Accused to present his case in chief;

2. However, to that is added two-thirds of that time for cross-examination of Defence witnesses and administrative matters, which amounts to approximately 240 hours, or 60 sitting days; and

3. Therefore, the Accused shall have 150 sitting days in which to present his case, which shall be subject to adjustment depending on the time taken in cross-examination and administrative matters[.]

NOTING that the Order Setting Time therefore specifically contemplated that the allotment of time for the presentation of the Defence case might be adjusted depending on the amount of time used for administrative matters,

NOTING the observations presented in the Motion, including notably that "the realities of this case include that large amounts of time have been taken to discuss unusual [or] extra-ordinary administrative matters such as the recurring ill-health of the Accused and the application by the Assigned Counsel to withdraw",

NOTING that a comparison of the figures cited in this Chamber’s most recent order recording the use of time,-1- with those provided to the Prosecution by the Registry Court Officer,-2- demonstrates that the Trial Chamber’s official record of time excludes certain administrative matters that were included in the Registry’s figures,

NOTING that, despite the Prosecution’s assertion that all extraordinary administrative matters "have apparently been counted against the Prosecution’s time as ‘administrative matters’",-3- any time spent in separate sessions with regard to Assigned Counsel’s application to withdraw or contempt proceedings has been excluded from the official record of time elapsed in the presentation of the Defence case,

CONSIDERING NEVERTHELESS that there is merit in the Prosecution’s submissions with regard to the substantial amount of time spent on administrative matters that are unique to the circumstances of this case, and which do not directly relate to either the substance of the charges against the Accused or to procedural issues normally arising from the examination, cross-examination or re-examination of a witness,

CONSIDERING, furthermore, that there has been uncertainty in the allocation of time to the Prosecution, which was created by combining time for cross-examination with time for administrative matters in one global figure,

CONSIDERING that the distinction between "regular" and "exceptional" administrative matters in the Motion will not achieve resolution of the concerns expressed by the Prosecution,

CONSIDERING that, in removing the "administrative matters" component from the time allocated to the Prosecution during the course of the Defence case, the Prosecution’s allocation should be reduced appropriately to reflect this extraction, and that 60% of the time allocated to the Accused to present his case in chief—216 hours or 54 sitting days—will be allocated to the Prosecution for cross-examination during the Defence case,

CONSIDERING THEREFORE that the Defence shall retain the 360 hours or 90 sitting days originally allotted in the Order Setting Time for the presentation of its case-in-chief; that the Prosecution shall have 216 hours or 54 sitting days for cross-examination; and that time determined by the Trial Chamber to have been spent on administrative matters in the course of the Defence case will not be counted against either Party,

CONSIDERING that, applying this new approach to allocating time to the entire period between the beginning of the Defence case on 31 August 2004 and the conclusion of court on 18 May 2005, the Prosecution has used 60.5%-4- of the time taken in presentation of the Defence case-in-chief,

CONSIDERING that it is appropriate that the time used should continue to be recorded and a statement thereof issued to the parties periodically,

PURSUANT to Rule 54 of the Rules,

HEREBY GRANTS THE MOTION IN PART AND VARIES THE ORDER SETTING TIME, ORDERING AS FOLLOWS:

1. The 360 hours, or 90 sitting days, allotted to the Accused in the Order Setting Time for the presentation of his case-in-chief, i.e. for examination-in-chief and re-examination of Defence witnesses and which includes procedural issues arising directly therefrom, such as discussion of the admissibility of exhibits, remains unchanged.

2. The revised Prosecution allocation is 216 hours or 54 sitting days, being 60 percent of the time allotted to the Accused, for cross-examination of Defence witnesses and procedural issues arising directly therefrom, such as discussion of the admissibility of exhibits.

3. A separate record of time spent on administrative matters shall be kept, but shall not be counted against the time allotted to either Party. Administrative matters are those which do not fall into the category of procedural issues arising from the examination-in-chief, cross-examination or re-examination of Defence witnesses, including discussion of the admissibility of exhibits and other matters as determined by the Trial Chamber.

4. Taking into consideration the new allocation of time set out above, based on the figures provided by the Registry to the Trial Chamber, the following time has been used by each Party between the beginning of the Defence case on 31 August 2004 and the conclusion of court on 18 May 2005:

• Defence, excluding opening statement: 8444 minutes [140 hours 44 minutes, or 35.18 days];

• Prosecution: 5109 minutes [85 hours 9 minutes, or 21.29 days].

5. As of the conclusion of court on 18 May 2005, therefore, 56.47 days of effective time have been used by both Parties, including 140 hours and 44 minutes of the 360 hours allotted to the Defence for presentation of its case-in-chief.

Done in both English and French, the English text being authoritative.

______________________________
Judge Robinson
Presiding

Dated this nineteenth day of May 2005
At The Hague
The Netherlands

[Seal of the Tribunal]