Witnesses Defy Tribunal; Associates Will Not Cooperate
Tuesday, 14 September, 2004
Witnesses Defy Tribunal; Associates Will Not Cooperate
Tuesday, 14 September, 2004
Defence Counsel Steven Kay advised the Court of the difficulties he has experienced in attempting to provide Milosevic with a defence. He and his co-counsel, Gillian Higgins, have been able to contact 23 of the first 48 witnesses listed by Milosevic's associates to testify. Of those, 20 have refused to testify unless the Court allows Milosevic to represent himself. The Accused's associates report, out of court, that 265 potential witnesses have taken this position.
Though they have not yet been served a subpoena and rejected it, their position is a clear defiance of the Tribunal's authority. As the Court learned in response to its questions, these witnesses include senior politicians, officials and former ambassadors from a variety of countries. In statements Milosevic read, several of these senior officials reject participating in what they describe as 'a show trial,' 'a Stalinist show trial,' and a 'political trial,' based on the Court's decision that Milosevic's medical condition no longer permits him to continue representing himself.
The Court reminded Kay that he could request a subpoena to order witnesses into court. Enforcement of the Tribunal's subpoena power is dependent on the good offices of states where the person to be subpoened resides. Kay replied he was reluctant to go this route because it militates against witness cooperation on the stand.
Defence Counsel also advised the Chamber of its difficulty proceeding without any instructions from the Accused. 'Any reasonable observer would not say it is a fair trial in this context.' Judge Bonomy took exception: 'I cannot accept that at all. When a person is given every reasonable opportunity to present his defence, that when he decided not to exercise it, the trial was not fair.' In response, Kay pointed out, 'It may be said he has every opportunity to take part, but the problem is he is not and will not.' Judge Robinson then added, 'In that case, none can say there was unfairness.'
Continuing his argument that all he was requesting was for the Court to change the modalities of representation it set out in its order, Kay asked the Chamber to allow Milosevic to question witnesses first, supplemented by questions from him. This, Kay suggested, would actually expedite the trial because of the difficulties he is now experiencing with witness noncooperation and the refusal of the Accused and his Associates to communicate with him.
Listening to Kay's complaints of noncooperation, Judge Bonomy interjected: 'Are you saying there is a determined effort being made by those assisting Mr. Milosevic not to give you information?' Kay responded that he didn't know. The only information to which he had access was that the Associates had earlier filed with the Court. More directly, Judge Bonomy asked: 'Am I to take it you have asked for details and been refused?' 'Yes,' Kay responded. 'They don't consider me his lawyer.' This elicited another reminder from Judge Bonomy -- that Kay has the right to apply to the Court for orders to overcome obstructions.
The Prosecutor read from an April 22, 2002 document signed by one of Milosevic's associates in which he agreed to be bound by the ICTY Statute, its rules, the Code of Conduct for Defence Counsel and any other rules and regulations of the ICTY and judicial orders which apply to him. Milosevic, however, sees it differently: 'They are my Associates. They have nothing to do with you [the Court].'
Before the Court heard more discussion of potential obstructionism by Milosevic's associates, there was a recess after which Kay reported he had received cooperation from one of the associates who provided contact information for witnesses. However, he told the Court, 'we need to see how far they would be willing to assist us,' emphasizing that they need cooperation in actually obtaining witnesses and being able to take their statements. Judge Robinson advised him to make his best efforts, and, if need be, return to the Chamber for assistance.
Concerning Milosevic's health, Kay argued that he should be given a new medical examination, since the last exam, which concluded he was not fit to represent himself, occurred 51 days ago. Kay also suggested that if Milosevic preferred to risk his health and his life in order to represent himself, he should be allowed to do so. It is his free choice, he said. The Court inquired if Kay were suggesting that matters continue in the same vein as they had over the past 2 1/2 years with Milosevic preparing and examining witnesses, until his health inevitably deteriorates again, at which point counsel will take over and the trial will proceed in Milosevic's absence. That raises another issue, Judge Robinson interjected, of a trial in absentia.
The Presiding Judge also emphasized that Milosevic's health was not the only basis for appointing Defence Counsel. It also became necessary to preserve the prestige, reputation and integrity of the Court, he said, for if the Court were to continue allowing Milosevic to represent himself, knowing the trial would last at least two more years and be interrupted 12 times as it has thus far, the Court would be acting irresponsibly and would bring the Tribunal into disrepute. Judge Kwon interjected that the main reason for appointing counsel was concern over Milosevic's health: 'Allowing the Accused to continue representing himself is allowing him to kill himself. We should not allow that to happen.'
Milosevic blamed the Court for the deterioration of his health. 'You led me into the situation where I find myself seriously impaired. . . ' he accused, arguing that the Court's schedule requiring him to submit his witness list by April 12, 2004, despite his illness, was at fault.
In the end, the Court rejected Kay's arguments for a new medical examination. 'The Chamber observes that its recent decision [appointing counsel] was made on the basis not just of one examination. In fact, the medical reports were made on the basis of a full medical history of the Accused, in particular during this trial. It is clear his condition is chronic and recurrent.'
Judge Robinson went on to read the Court's decision on Kay's application to allow Milosevic to question witnesses first, supplemented by him. 'In the Trial Chamber's view this would not effect any substantial change from the previous regime. It is clear from the medical reports that the strain and stress would necessarily lead to deterioration of the health of the Accused and further interruptions of the trial.'
The Court then invited Kay to request an adjournment to assist in preparing his case. It rejected, however, Kay's request that the trial be suspended pending a decision by the Appeals Chamber on whether to overturn the Trial Chamber's decision appointing counsel. It also rejected the Prosecutor's suggestion that the trial convene to hear the few witnesses who have agreed to testify, as they become available. Giving defence counsel four weeks will allow Kay and Higgins to conduct their own investigation as well as take a broader review of their case to aid in selecting and prioritizing witnesses. A decision by the Appeals Chamber is expected before the Trial Chamber reconvenes on October 12.
Before Court adjourned, Judge Bonomy engaged the Accused directly about his role in witness' cooperation: 'Is it also your position that if witnesses can find it in their conscience to attend the Tribunal to give evidence you would wish them to do so?' Milosevic responded that it is up to the witness: 'I wish to say to you once again that not even in the most indirect way do I want to influence witnesses. . . .' Judge Bonomy followed up: 'Do you wish to encourage them to come?' To which Milosevic answered, 'They are reasonable people, people of integrity. It is up to those witnesses.'
