Insider Testifies About Attempts to Establish Serbian Army

Target dates in the Milosevic trial continue to be unpredictable. Following the Trial Chamber's recent decision, based on medical advice, court days are now limited to three partial days each week. This is a further reduction from full day sessions at the beginning of the trial to half day sessions to long weekends every other week. The trial has clearly been exhausting for Mr. Milosevic, who insists on representing himself, despite his health limitations.

Due to the reduced court schedule, the Prosecution's case, anticipated to be completed by the end of this year, is now unlikely to be completed before the first or second week in February 2004 -- even without further illness of the Accused. According to a recent ruling by the Trial Chamber, Milosevic will then have three months before starting his defense case unless an Appeals Chamber decides otherwise.

On October 1, Amici Curiae filed an interlocutory appeal asking the higher court to overturn the Trial Chamber's allocation of three months between the two parts of the case. They argue the three month period is insufficient for Milosevic to prepare his defense case, and claim the Trial Chamber was unreasonable in imposing it.

In support of their appeal, Amici maintain the Trial Chamber failed to give sufficient consideration to the time the Accused has had to prepare his defense (given the short time between arrest (June 2001) and trial (February 2002)), the longer period available to the Prosecution to prepare its case following its May 1999 indictment, and the 'voluminous amount of disclosure' the Prosecution has turned over to the Accused.

Amici further contend that the Trial Chamber should have given greater consideration to the scope and number of issues in the indictment, consequences of the Accused's ill health, the self-representation of the Accused, who lacks the same resources available to the Prosecution, and the fact that the Prosecution has not yet completed selection of its final witnesses.

In addition, Amici argue that the Trial Chamber should not have considered support Milosevic receives from his two legal assistants since there was no evidence about 'the nature and extent of that support.' Nor should the Chamber have reached a conclusion that Milosevic's cross examination shows he is receiving information and resources from unidentified supporters since no evidence was presented to 'support their ability to assist in the preparation of the defence case.' In a footnote, Amici pointed out that 'Prosecution witnesses have often referred to the information relied upon by the Accused as being erroneous.'

While declining to recommend what they consider a more reasonable time for defense preparation, the Amici concluded in their appeal, 'It is unreasonable to expect a patient under medical treatment in the physical condition of the Accused to have to work as rigorously as would be required to be prepared to deal with all aspects of the Prosecution case as well as to have so substantially prepared the defence as to be able to prepare the pre-trial brief within six weeks of the end of the Prosecution case.' The deadline for submitting a pre-trial brief was also part of the Trial Chamber's order and the Amici's appeal, though there is no reason to expect Milosevic will submit this written document required by rules of procedure of the Tribunal he does not recognize.

In its reply brief filed with the Appeals Chamber, the Office of the Prosecutor (OTP) pointed out that Milosevic is not a mere victim of an inequitable system where the accused is out-resourced by the prosecution. The prosecution has the greater burden because it is required to present sufficient evidence to prove each of its allegations beyond a reasonable doubt. Where the Court rules the OTP has failed to do that, the charge will be dismissed and the Accused need not present any evidence. Even where the OTP presents sufficient evidence to support its indictment, the Accused need only present enough evidence and argument to cause reasonable doubt in the judges' minds.

Moreover, as the Trial Chamber recognized, the Accused not only receives assistance from his two Associates, but also from unidentified others who provide him with documents which are not available to the Prosecution. Noting that Milosevic has always had more questions to ask witnesses than time available, the OTP argued, 'This is clearly indicative of an extremely efficient preparation machine.' In addition, the Trial Chamber recently expanded assistance available to the Accused from the Amici. The OTP also pointed out that a recent legal argument Milosevic made to the Court demonstrates his own growing capacity for self-representation.

With regard to the large volume of material it has disclosed to the Accused, the Prosecution noted that ICTY rules require the disclosure of all potentially exculpatory evidence. It went on to write that Milosevic bears some of the responsibility for the large volume because he refuses to attend meetings where he has been invited to offer suggestions for reducing it. The OTP emphasized, 'The Accused knowing precisely what happened puts him in a perfect position to know at any given time what document or documents are wholly irrelevant (or at least of no use to him) and where to look for material that is favourable to him.'

Addressing the short time between arrest and trial, the Prosecution advised the Appeals Chamber that Milosevic was indicted more than two years before, yet refused to surrender. During that time he could have been preparing his defense to the indictment, just as the Prosecution was preparing their case for trial. The OTP also noted that Milosevic has shown in cross examination and his opening statement by identifying some of the witnesses he intends to call that he has been in the process of preparing his defense case all along.

Again pointing out the superior knowledge of the Accused, the Prosecution cautioned the Appeals Chamber: 'It must be remembered at all times that the Accused, more than anyone else, knows precisely what happened. . . . The Prosecution . . . has no single witness who has had the courage in the face of all the circumstances to give a comprehensive account of what the Accused did. . . .'

Furthermore, the OTP defended the recurrent changes and lack of finality in the list of witnesses it intends to call by pointing out that 'many of the most important witnesses were unwilling (through anxiety frequently) to come forward at the beginning.' The unfolding of the trial as well as arrests and convictions in other proceedings have emboldened these witnesses. The Prosecution also notes that the witness list is fluid because new witnesses who come forward lead them to other important witnesses. Finally, the OTP informed the Appeals Chamber that many of the changes in its witness lists has resulted in a significant reduction of witnesses, therefore, reducing Milosevic's preparation time.

Turning to perhaps the center of the Amici's argument, the effect of the Accused's ill health on his ability to prepare his defense case in the time allotted, the OTP brief points out, 'The ill health of the Accused is, in part, a result of his own determination to conduct his own Defence case.' Stating that Milosevic's decision to represent himself has 'clearly aggravated [his] medical condition,' the Prosecutor argues, 'It is not a question of the Prosecution being unsympathetic to the Accused, it is simply a question of it being vital that justice can be done for Accused persons whose medical condition in no way reaches the position where a trial of him should be denied. This Accused must be obliged to co-operate with the Tribunal by preparation of his Defence within a finite period of time to enable this important trial to be brought to a conclusion.'

By cooperation, the Prosecution goes on to clarify, it means not only adherence to the three month preparation period, but also potential acceptance of defense counsel. 'The Trial Chamber has been alerted by the Prosecution to the desirability of imposing or assigning counsel to the Accused. The time may well have come when it will be decided by the Trial Chamber, or indeed by the Appeals Chamber, that in the interests of justice the Accused will have to be required to co-operate.' Recognizing that such a decision may well have its critics, the Prosecutor warns the Court, 'The Trial Chamber and the Appeals Chamber will have to live with the decision so made even if the Accused (to his own harm) declines to co-operate by cross-examining witnesses through counsel or by not calling witnesses he claims he otherwise would have called.' In other words, despite criticism, the interests of justice, including its interest in assuring the Accused an adequate defense, may require the appointment of defense counsel, even against Mr. Milosevic's wishes.

The Trial Chamber's decision establishing a three-month hiatus between prosecution and defense cases is a discretionary one. Matters within the discretion of a trial chamber are treated with deference by the Appeals Chamber. Unless they are clearly wrong on an issue of law or show an abuse of discretion, the Appeals Chamber will not disturb them.
Amici argues that the Trial Chamber erred in what factors it considered and failed to consider in reaching its decision and that no reasonable trial chamber could have reached the decision it did. Perhaps because ICTY rules and procedures have not been fully fleshed out at this stage, the Appeals Chamber tends to be more interventionist than appellate chambers in more established jurisdictions. Still, there is no predicting how the Appeals Chamber will approach this discretionary ruling, one with significant implications for the defense case as well as for the coherence and integrity of the trial process.