Court Sets Hearing on Milosevic's Health and Future Conduct of the Trial

The Trial Chamber has granted an urgent request by the Prosecution for a hearing to discuss Mr. Milosevic's continuing ill health and its consequences for the future conduct of the trial. The Prosecution's request followed the ninth recess (more than 60 days of trial time) in the Milosevic trial occasioned by the Accused's ill health. The Court granted the request at the same time it announced that Mr. Milosevic's most recent absence, which began on September 19, will continue through next week.

This week, Lead Prosecutor Geoffrey Nice notified the Court that the 'recurring, but unpredictable interruptions [occasioned by the Accused's illnesses] seriously affect the conduct of the trial, and have a particularly grave impact on scheduling of witnesses.' He went on to say that the latest recess has had especially serious consequences that 'may affect their [the witnesses'] very willingness to give evidence.' The motion also pointed out that the Tribunal incurs significant additional expense when witnesses who have arrived in The Hague have to be rescheduled.

Noting that ICTY Rules do not address the current situation, Mr. Nice suggested an urgent rule change might be necessary. In the alternative, he raised the possibility that the Court could design a solution under its broad discretionary powers to regulate proceedings before them. The Prosecutor offered two possibilities, both involving taking testimony via videotape with a later opportunity for the Accused to cross examine the witness if he so desires. He also mentioned adjusting the sitting hours of the Court and assigning counsel to him.

The Court has already adjusted sitting hours from a full day to a five hour day, and provided for four-day weekends every other week. As for assigning counsel, the Chamber has been reluctant to do so over Mr. Milosevic's objections. Recently, however, Judge May reminded the Prosecutor that this option is still on the table.

The Prosecution has 45 days left to complete the presentation of its case, which it was expected to do by the end of the year. Mr. Milosevic's continued illnesses throw that into question. While the Court recently gave the Accused three months to prepare his defense following the close of the Prosecution's case, the Amicus Curiae is seeking to appeal that ruling. In his motion, Mr. Steven Kay argued that three months' is insufficient for an imprisoned self-represented accused to do everything that is required, which includes interviewing and preparing witnesses, preparing a list of proposed witnesses indicating the relevance of their testimony, securing exhibits and documents and preparing them for introduction into evidence, reviewing the thousands of pages of material disclosed by the Prosecution which contains potentially exculpatory material, organizing all of this while developing his defense strategy.

The continued poor state of Mr. Milosevic's health and the daunting task that faces him provides more support for assigning him counsel than for allowing him more time to prepare on his own. While the Court must consider the state of the Accused's health, it is also charged with insuring he receives an adequate defense and that the trial is expeditious. It is becoming increasingly clear that Mr. Milosevic is incapable of defending himself under the present arrangements -- which include a reduced court schedule and the help of two legal assistants. To insure the trial is fair to Mr. Milosevic and the public, the Trial Chamber should now do what it should have done long ago and appoint counsel to represent him. Counsel need not completely take over the case, as the Prosecution has noted before in recommending standby counsel. This procedure was recently invoked by Judge Schomberg in the Seselj case. Mr. Milosevic could maintain an active role in developing the overall defense strategy as well as the strategy for examining each witness. He could even continue to do some of the cross examination and direct examination. This would not only save his health and improve his legal defense, it would save court time he now uses in argument and comment, neither of which is appropriate during witness examination. Assigning legal counsel to represent Mr. Milosevic may be the only way to assure Mr. Milosevic receives the adequate defense guaranteed to every accused. As well, it may be the only way this trial will ever be completed.