| International Committee to Defend Slobodan Milosevic*ICDSM |
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President Milosevic: This is a political trial! Remarks at the 21 October 2004 ICTY Appeals Chamber hearing ********************************************************************************** The Appeals Chamber session was open. Its transcript (like for any other session) was done next day and had to be available to all parties. For days, and with different excuses, it was denied to assistants of President Milosevic to get the transcript in the electronic form. Finally, when there were no more excuses, the transcript appeared on the ICTY web site. Additional proof that it appeared only due to the pressure from President Milosevic's team is the fact that the transcript of 19 October, when ICDSM Vice-Chair Liana Kanelli slammed the ICTY had been posted only two days after the posting of the Appeals Chamber hearing. Here we give the words of President Milosevic, that someone tried to hide from the public as long as possible. The whole transcript can be read at: [Appeal
Proceedings] [Open
session]
Basic Remarks PRESIDENT
SLOBODAN MILOSEVIC:
In my deep conviction concerning this decision to take away my right to
represent myself, this was not prompted by health reasons nor legal
reasons but by political reasons. Health
reasons were taken exclusively as an excuse or pretext. I
would like to turn your attention to the fact that there was a campaign
conducted not to permit me to speak. On the 29th of August, one of the
drafters of your Statute, Michael Scharf published in the Washington Post
an article as part of this campaign in which he said, amongst other things
-- I'm not going to quote the entire article, I would just like to point
to a few things or excepts from it. "At
the start of the trial in February 2002, the original presiding judge,
Britain's Richard May, ruled that 'under international law, the defendant
has a right to counsel but he also has a right not to have counsel.'
Virtually everything that has gone wrong with the Milosevic trial can be
traced back to that erroneous ruling." As
part of that campaign, therefore, things set out from insisting that the
Chamber, which was presided by Judge May, wrongly decided to enable me to
speak, and then this is explained by stating: "By
acting as his own counsel, Milosevic was able to begin the trial with an
18-hour long opening argument, which included Hollywood-quality video and
slide-show presentations showing the destruction wrought by the 1999 NATO
bombing campaign." That
is what disturbed all those who do not wish to hear the truth from this
place, because for three years now, the other side has been explaining
crimes that I did not commit, ascribing to me intentions which I never
had. We're talking about legal alchemy here, which is jeopardized by the
possibility that truth be spoken here and that what really happened be
talked about here. In
his article, Scharf explains that or provides an explanation from which it
can be seen that we're not talking about law here but politics. I will
quote just one more excerpt: "In
creating the Yugoslavia tribunal statute, the UN Security Council set
three objectives: First, to educate the Serbian people, who were long
misled by Milosevic propaganda, about the acts of aggression, war crimes
and crimes against humanity committed by his regime ..." As
you can see, he is citing a political reason which only a twisted mind can
use in view of the fact that there was no war in Serbia and that Serbia
was the only one that maintained the structure of population as it was
before and that there was no discrimination at all. This is part of the
propaganda which is being affirmed here. Secondly,
"to facilitate national reconciliation by pinning prime
responsibility on Milosevic and other top leaders and disclosing the way
in which the Milosevic regime had induced ordinary Serbs to commit
atrocities; and third, to promote political catharsis while enabling
Serbia's newly elected leaders to distance themselves from the repressive
policies of the past. May's decision to allow Milosevic to represent
himself has seriously undercut these aims." He
also explains that this is also very wrong because this trial is being
followed, because the majority of the citizens in Serbia give their
support to me, which is not a surprise, because everybody had the
opportunity to hear what is being said here. For
example, this statement of mine of the 31st of August and the 1st of
September was published in newspapers with the broadest circulation. It
was also broadcast on television. It was published in hundreds of
thousands of copies. So I can expose myself to the trial of the -- or to
the scrutiny of the public, whereas the other side cannot. And that is the
main reason why it is not being permitted here, the truth, or arguments be
brought out in favour of the truth and that this truth be proved by facts. I
would like to also draw your attention, gentlemen, because you are all
experts in the legal profession, that in relation to this question of
assigning counsel, denying me my right, taking away my right, about 100
prominent legal scholars, professors, experts in international and
criminal law from Serbia, Russia, Greece, Italy, Ireland, Germany, the
United States, Canada, India, Belgium, Denmark, Bulgaria, Hungary,
Netherlands, Czech Republic, Great Britain, France, submitted a petition
to the General Secretary and to the United Nations Security Council. You
probably did not pay attention to this, but many arguments were stated
there against this decision which was adopted by the Trial Chamber. They
say that this imposition of counsel, "This apparently punitive
measure is contrary to international law, incompatible with the
adversarial system of criminal justice adopted by the Security Council in
Resolution 808, and ignores the Court's obligation to provide adequate
medical care and provisional release to the defendant. ... The ICTY has
ignored repeated requests for provisional release, to which everyone
presumed innocent is entitled, has imposed unrealistically short
preparation periods ..." I
warned you, Mr. Meron, the last time that we had a discussion here and
when we were talking about me being granted three months for preparations
compared to several years that the other side had, I drew your attention
specifically to the existing decision of doctors that I can only work for
three days a week and that that time is very short. At the time, you said
that you would review all of these things. There has been no subsequent
review of these issues. I
would also like to remind you that in the decision of the Appeals Chamber
of the 18th of April, 2002, comprising of Claude Jorda, David Hunt, Mehmet
Guney, Fausto Pocar and Theodor Meron - that's what it states here on the
cover page - in paragraph 27 it was stated since the reasons for decision
on Prosecution interlocutory appeal from refusal to order joinder was
being discussed at the time, "As
has been shown to be necessary in all long trials before this Tribunal,
the Trial Chamber will from time to time have to take a break in the
hearing of evidence to enable the parties to marshal their forces and, if
need be, to unrepresented accused to rest from the work involved." This
was not respected either. And in connection with that, I would like to say
that when the three-day work rule was being respected, these three
workdays are not only days spent in court but three workdays in general.
This was not taken into account. But there were no problems at the time. I
will come back to that later. In
the petition, it says: "The envisaged imposition of counsel
constitutes an egregious violation of internationally recognised judicial
rights, and will serve to only aggravate Mr. Milosevic's life-threatening
illness and will further discredit these proceedings. "The
fundamental, minimum rights provided to a defendant under the Rome Statute
of the International Criminal Court, as well as under the Statutes of the
Internation Criminal Tribunals for Rwanda and Yugoslavia include the right
to defend oneself in person." I
will skip over. "As stated by the US Supreme Court, with respect to
the Sixth Amendment of the Bill of Rights, which bears a striking
similarity to Article 21 of the ICTY Statute." And
then there is a quote from the Faretta versus California case, from which
they – "It
speaks of the 'assistance' of counsel, and an assistant, however expert,
is still an assistant. The language and spirit of the Sixth Amendment
contemplate that counsel, like the other defence tools guaranteed by the
Amendment, shall be an aid to a willing defendant - not an organ of the
State interposed between an unwilling defendant and his right to defend
himself personally. To thrust counsel upon the accused, against his
considered wish, thus violates the logic of the Amendment. In such a case,
counsel is not an assistant, but a master, and the right to make a defence
is stripped of the personal character upon which the Amendment
exists." And
then it goes on to say: "The
essence of the right to represent oneself is defeated when the right to
counsel becomes an obligation. As stated in Faretta, supra: "An
unwanted counsel 'represents' the defendant only through a tenuous and
unacceptable legal fiction." Then
Faretta case. There's another quote from that case. "In
the long history of British criminal jurisprudence, there was only one
tribunal that ever adopted a practice of forcing counsel upon an unwilling
defendant in a criminal proceedings. The Tribunal was the Star Chamber.
That curious institution, which flourished in the late 16th and early 17th
centuries, was of mixed executive and judicial character and
characteristically departed from common law traditions. For those reasons,
and because it specialised in trying 'political' offences, the Star
Chamber has for centuries symbolized disregard of basic individual
rights." Gentlemen,
we are facing a practice here which, as you can see, is being dealt with
in a way which is not a -- which does not serve as a compliment. In this
case, it says: "Imposition
of counsel, even 'standby counsel', as appears to be presently envisaged
by the ICTY, will not alleviate any of the difficulties facing the
process: it will not treat, much less cure, Slobodan Milosevic's malignant
hypertension; it will not provide the defendant with the time and
conditions to prepare his case; it will not redress the gross imbalance in
the resources accorded the Prosecutor and the Defence," et cetera. "If
Slobodan Milosevic's medical condition does not permit him to attend the
proceedings, and he does not waive his right to be present, the ICTY does
not have the jurisdiction to hold hearings in his absence. Adjournments
will continue as long as measures are not taken to treat Mr. Milosevic's
malignant hypertension, a condition that cannot be treated by further
violating his rights, threatening to remove him from the process, or by
transferring his Defence to a complete stranger. "By
imposing counsel, the ICTY would not only violate his right to
self-representation, but his right to present relevant evidence
demonstrating the repeated violations of Yugoslavia's sovereignty over a
decade. "The
right to defend oneself in person is at the heart of the International
Covenant for Civil and Political Rights. The United Nations should not
tolerate these continuing violations of international law in the name of
expediency. Using a detained person's inappropriately treated illness as
an excuse to infringe upon his rights and silence him and embark on a
'radical reform' of the proceedings - as the Chamber is now considering,
by changing the rules in the mid-trial, and to the defendant's detriment-
is a perversion of both the letter and the spirit of international
law." That
is about 100 legal scholars and professionals said on this matter. I
mentioned them before. Mr.
Meron, we are talking here about the cogent norms of international law,
ius cogens, imperative norms which do not allow a restrictive
interpretation and which in my deep conviction and according to the
conviction of many lawyers throughout the world say that I cannot be
denied of my right to represent myself. Therefore, the fact that you
question my surprise at all that the Trial Chamber could have adopted such
a decision at all is something that does not surprise me but astonishes
even many people throughout the world, especially when we keep in mind
that we're talking here about the denial of the minimum rights which I
should enjoy here. So
I would like to be very brief. I would like for my right to be restored to
me. As
far as arguments that were utilised which say that because of my
hypertension many sittings had to be suspended, I would like to say that
it is my deep conviction that the doctors on this matter have also been
manipulated, because some elements were stated in a context in which they
cannot be considered to hold. As
you can see here, I have a letter from Dr. van Dijkman to the Detention
Unit physician, Dr. Falke, where he says -- this letter is dated on the
10th of June, 2004, and it says that on the 9th and 10th of June I was
monitored for 24 hours, my blood pressure was monitored for 24 hours, and
it explains " ... blood pressure during daytime 164/103." Et
cetera. And he goes on to say, "I do not consider the blood pressure
to be so high -- ... cease
his activities." Therefore, when it was high, he believed it did not
justify a cessation of my activities. On the 26th of July, the date when I
was examined the last time in order to agree in the future with Dr.
Tavernier's findings, my pressure was 150/95. Therefore, it was better.
And then when it was better, it served as a basis for concluding that I
was medically unfit to defend myself. And
furthermore, they manipulated the information about a loss of ten days,
allegedly because of my health situation. And you will agree, gentlemen,
that when this piece of information is used, it is in relation to days
when my blood pressure was high. That's what it seems. However, that is
not accurate. I have an official document stamped and signed by the
authorised officer of the Detention Unit, the only one who is in charge of
medical records, which states in view of the fact that on several
occasions I had a very severe case of flu with high fever, and it says
"Dates of flu." In 2001, it was one week. In 2002, it was one
week. In early 2003, it was ten days. In May 2003, two weeks. And finally
in 2004, in February, two weeks. In total, that amounts to six and a half
weeks of flu involving high fever in various periods. What
happened then, gentlemen, then back in February 2004, when I was running a
high fever and having flu and was bedridden, I received notification that
the appeal -- that the Prosecution case had been completed and that I was
to prepare my list of witnesses. I therefore asked the liaison officer
from the Registry, who is sitting here, whether, being ill, I was allowed
to have an extension of that deadline because the task involves a huge
amount of work. In those six and a half weeks, I was supposed to prepare a
list of witnesses and was not able to start immediately. I
was informed by a Trial Chamber, through their legal assistant or whatever
they call it, that the deadline cannot be moved. Therefore, I practically
had to work from my bed at a very high intensity and to work very hard to
comply with the deadline and submit that list within the six weeks given
me from the time when I was informed of the completion of the Prosecution
case. That
is what caused stress, shortage of sleep, and other problems. And
this complete disregard for the rule that I was allowed to work for only
three days a week drove my tension and blood pressure up. In other words,
it was the Trial Chamber who caused it with their decision and the fact
that they set unreasonable deadlines. And then the resulting problems were
used as an excuse to impose counsel on me with the explanation that I was
unable to handle the preparations required myself. That is what happened. I
can give you this paper which shows exactly how many weeks were in issue,
with appropriate dates and signatures. The loss of days caused by this was
completely unrelated to the problems I was experiencing. It is, therefore,
abundantly clear that this is a manipulation of findings and facts. It
is, as a consequence, abundantly clear that all talk of obstructionism is
malicious, because if you say that about somebody who spent 300 days
examining the witnesses of the other side, calling him an obstructionist,
which he had never been in any of the 300 days of dealing with the case of
the opposing side. It is nonsense, to say the least. Even
Mr. Nice putting forward his arguments before the Trial Chamber, trying to
deny me an extension, said that I was working very efficiently and did not
need an extension of the deadline. Therefore, in my then-health situation,
I experienced additional pressure which caused a deterioration of my
health, which was then used as a pretext for assigning counsel on me. When
I did not have any other health problems, I worked quite efficiently
indeed, except for the times when I had flu with high fever, which nobody
is immune from, and nobody can guarantee that it would not happen to them. You
asked me a number of questions that I will attempt to answer. What
is the best solution? The best and the only solution, in my opinion, is
for you to give me back my rights. Your stand-by counsel is of no interest
to me whatsoever. Mr.
Kay used to be an amicus curiae. He, as well as his colleague, upon leave
of the Trial Chamber, put questions to witnesses when he deemed fit. As
far as I am concerned, I have no objection to such practice at all. As far
as I'm concerned, in that capacity he can continue if you think that
necessary. He can continue to put questions to witnesses or perform any
other tasks. But
it is indubitable that the only solution, the only one I see as just,
fair, logical and reasonable is to give me back my right to represent
myself, to call witnesses, to examine them, and to lead evidence in my
Defence case. That
amounts, practically, to the guarantees I enjoy under every international
covenant, agreement, treaty, and finally your own Statute. And
I cannot agree to anything less because that is my principled position,
one from which I do not intend to retreat. So much, Mr. Meron. Thank you
for your attention. THEODOR
MERON: Thank you, Mr. Milosevic. Mr. Milosevic, what would you suggest
to the Court? How should it act if you would have to reduce your presence
in the courtroom even beyond the three days that you have been able to
cope with in the past? Imagine for a moment that you could be in the
court, bearing also -- taking into account also the time you would need in
the detention centre to prepare, only one day a week. Would you -- do you
believe that the Court can go on if the situation would arise in that
context? Do give us some practical suggestions to try and, in fairness, to
remedy the situation that has arisen. PRESIDENT
SLOBODAN MILOSEVIC: Mr. Meron, your question is completely logical. I
believe, however, that one should take into account the history of the
accumulation of the present problems. Namely, several times - and this is
known to everybody sitting here and it can be seen from the transcript -
at the moment when this so-called trial began with charges from the Kosovo
indictments, indictments on Croatia and Bosnia were issued. At that time,
I received over half a million pages of material from the other side in
connection with the charges raised then. On
several occasions, I asked them, "When do you gentlemen suppose that
I can read this? Will you give me time to review this material, to
familiarise myself with it and to respond?" The answer I constantly
received was that the Trial Chamber would consider it. And
finally we ended up in this situation where I have not been given time to
talk to my potential witnesses. In fact, I talked to as many witnesses as
I had time to talk with. And during the summer recess and preparation, I
was allowed to receive witnesses three days a week. I
assume you know that the opposite side spends sometimes several days
speaking to one witness. I speak to one witness a day, sometimes two
witnesses per day. I cannot be any more expedient than that. I believe,
therefore, you should bear in mind that if it is true, and it is written
in para 10 of the reasoned decision of the Trial Chamber on the assignment
of counsel, since on the 30th of September it heard the arguments of sides
to the proceedings, the Trial Chamber made its decision on the basis of
the medical report concerning the accused's health that the Chamber would
sit three days each week. That
decision was made back then, and I believe that coupled with observation
of this rule, a three-day work rule for the courtroom, and in view of the
fact that I had not been given the opportunity in a timely manner to talk
to my witnesses, a compromise is being made now between this and the
decision made as a result. You should see what is fair in this situation.
I believe that we can keep up the dynamics of three workdays per week with
the proviso that weeks off should be taken occasionally so that I can
proof witnesses I intend to call. And that would be a perfectly reasonable
timetable enabling us to conduct these proceedings in a perfectly normal
manner, achieving all that we have to achieve. Those
are my practical suggestions. THEODOR
MERON: Thank you, Mr. Milosevic. Of course, some of the difficulties
that you have alluded to in terms of pressure on you, in terms of tension,
are a result of the fact that you chose not to have a counsel. You have
your legal advisors. Had you named them as your counsel, they would have
borne some of the burden that you -- that you took upon yourself. And from
the perspective of the Court, shouldn't a person accept the consequences
of his decision? You chose to go this way, and you made things so much
more difficult for yourself. Mr. Milosevic. PRESIDENT
SLOBODAN MILOSEVIC: Mr. Meron, in support and in favour of Mr. Kay,
who very correctly put forward his position, because I really have nothing
personal against him, and he is doubtlessly a very capable lawyer,
nevertheless, no lawyer, Mr. Kay or any other lawyer, is able to replace
me in this job. It is simply because of the nature of these charges. This
is a political trial. What is at issue here is not at all whether I
committed a crime. What is at issue is that certain intentions are
ascribed to me from which consequences are later derived that are beyond
the expertise of any conceivable lawyer. The
point here is that the truth about the events in the former Yugoslavia has
to be told here. It is that which is at issue, not the procedural
questions, because I'm not sitting here because I was accused of a
specific crime. I'm sitting here because I am accused of conducting a
policy against the interests of this or another party. The nature of the
proceedings here is such that a lawyer cannot deal with it. In fact, even
that is not the issue. The issue is whether I have the right to represent
myself under the Statute, and the Statute says I do.
Additional Remarks (after the presentation of the 'Prosecution') PRESIDENT
SLOBODAN MILOSEVIC: You should be clear on this mystification
regarding the alleged failure to comply with my therapy. You
can find out the truth from the authorised medical personnel at the
Detention Unit. I'm going to explain. There
is no mystification whatsoever. I was told one day that the next day a
test would be made to ascertain how much of the medication I'm taking is
actually absorbed by my body, and that I would receive medication at 7.00
a.m. in order to take a blood sample five hours later at 2.00 p.m. and the
concentration of the medication would be measured in my blood. There is a
record of this. At 7.00 a.m. exactly I took the medication, and two hours
later a blood sample was taken. The analysis, however, showed that the
concentration in my blood was not sufficient. What
business of that is mine? Please tell me. I don't know what was wrong,
whether there was enough of the concentration of the medication in the
pill itself or not or something else was the problem. In any case, I
complied with the procedure fully. Everything was done properly. And to
base a theory on the allegation that I'm refusing to take my medicine is
absolutely senseless. The procedure could have been checked. Another
method could have been chosen, because no method is absolutely foolproof,
but to take such conclusions is absolutely uncalled for, especially by
laymen such as Mr. Nice. I will not waste any more time on this. Second,
regarding the campaign, you intervened, Mr. Meron, when I used the word
"campaign" and when I mentioned Michael Scharf. Michael Scharf
used to be the legal advisor of Madeleine Albright, as you know, I
suppose. You also know that I was brought here on the 5th of July, being
ill when the Trial Chamber ignored the fact that I'm ill, and the press
came here to hear my opening statement although they were not notified
that there would be no opening statement on that day. You
know, Madeleine Albright was here and that she personally is anxious, in
view of her own responsibility for the bombing of my country and her own
participation in aiding Croatian forces in the Operation Storm when
several hundred thousand Serbs were expelled from Croatia. And
the next day, Mr. Prosper, the ambassador of your country, a person in
charge of these issues, arrived. Mrs.
Albright is often referred to as the mother of this Tribunal and her
personal interest, vested interest, is indubitable. It is doubtless that
she has a role in this campaign, and you can see this argumentation that
she shares in the transcript of Mr. Nice's speech. Mr.
Nice spoke here, and I wish to respond to several of the things he said.
He said it was up to me whether I would accept what has been offered. This
is not a situation of offering or accepting. We are not at the bazaar
where people are offering and taking. We have a completely different
situation here. We are discussing the minimum of my rights, on which I
insist. It is not a case of offering and accepting or not accepting
wherein I am to take the consequences of my own refusal. What
is at issue here is to observe the minimum of my guaranteed rights. Second,
isn't it absolutely clear that I have the right to appoint counsel, but I
also have the right not to appoint counsel? I am exercising my right not
to appoint counsel; in other words, my right to represent myself.
Therefore, I am acting in full conformity with the spirit of the right
given me. Furthermore,
Mr. Nice says that a judgement can be taken even without a Defence case,
because several witnesses have been here, none of which have provided any
evidence. So a judgement can be taken without a Defence. That is precisely
their aim, because a Defence put forward by an imposed counsel is not my
defence. That, I hope, need not be proven. Defence
through an imposed counsel is a legal fiction. Furthermore,
Mr. Nice says that I gave a list of witnesses to Mr. Kay. That is not
true. I disclosed my witness list through the liaison officer answerable
to the Trial Chamber. Mr. Kay, in his official capacity, has access to
that list of witnesses, and through no fault of his, he has -- he doesn't
know what to do with it, as he doesn't know what to do with the list of
thousands of exhibits that I made available, because if we keep this limit
of 150 days, Mr. Kay does not know what selection I personally would have
made out of the 1.600 witnesses to fit into the 150 days. And you will
admit, gentlemen, that a bad use of witnesses and exhibits is worse than a
complete failure to use witnesses and exhibits. Then
Mr. Nice asked the question, Who is running this court? That is not the
question here. The question here is, Who is running my Defence, me or Mr.
Nice? For
the duration of their half time, I didn't show a shadow of intention to
interfere with their business, whereas they have wanted all the time to
organise my Defence and to dictate the terms and conditions of my exercise
of my own rights. That is absolutely inappropriate. I didn't take away my
own right to self-representation; it was taken away from me by the Trial
Chamber. I
therefore demand my right to represent myself back. I believe that my
legal position cannot be changed in the middle of the trial, or my
capacity to defend myself, and I demand my right back. Thank you. |