³³²²⁶

Wednesday, 10 November 2004

[Open session]

[The accused entered court]

--- Upon commencing at 9.03 a.m.

JUDGE ROBINSON: Mr. Kay, have you finished or --

MR. KAY: No, I hadn't, Your Honour.

JUDGE ROBINSON: Please continue.

MR. KAY: Thank you. Your Honour, yesterday we were really dealing with two issues, as it turned out, our motion and application to withdraw, as well as the issue of how assigned counsel should function in the future. It seemed to us that the debate had moved from the application before the Court to also include any future issue as to the functioning of assigned counsel.

JUDGE ROBINSON: You think that your own cause was prejudiced by that?

MR. KAY: I think that the Court may have been losing sight of the issues that have concerned us over our withdrawal and what has caused us to make that application.

JUDGE ROBINSON: But there is a sense, it seems to me, in which the issue is wider than you. The issue you're raising is personal to you, but in a real sense it is wider than your own interest and affects the administration of the case, and so perhaps that is why it moved in that direction.

MR. KAY: I have no difficulty in dealing with it on that basis, but I did want to bring the Court back to the central issue of the ³³²²⁷ hearing, as well as deal with that issue in relation to the duties of assigned counsel, because it is plainly something that would have ramifications after any decision was made concerning our withdrawal. And they are distinct issues, but they do have issues that are concurrent issues. And in the discussion yesterday, it seemed that the Court was not viewing the Code of Conduct with the importance that we as counsel view the Code of Conduct.

I want to remind the Court that our appointment, the decision appointing us is after considering the Statute of the Tribunal, considering the Rules of Procedure, considering the directive on assignment of Defence counsel, and considering the code of professional conduct for counsel appearing before the International Tribunal. That Code of Conduct is something that we would be liable for if we violated it, but you Judges and the Prosecution would not be. So the issues concerning it are issues related to us and our professional duty, and we would be very concerned in committing any act that was in conflict with the Code of Conduct and violated its provisions. It is an essential part of the functioning of this Tribunal and something that we are expected to pay regard to, just in the same way the Prosecutor is expected to pay regard to the conditions of employment that govern the Prosecution lawyers and is something within her domain and responsibility. Code of Conduct, again, is something for which we must function within and ensure our compliance.

And I want to make that clear, because as I said, the issues here are merged but distinct. The reason why we're making the application for ³³²²⁸ withdrawal is as a result of conflict with the accused. The issues concerning future assigned counsel and revised modalities, we say, must be within the parameters of the Code of Conduct. And the situation the Court has before it here is a novel situation.

We've referred to Blagojevic on several occasions, and that was a very different case. That was a case where the accused, having given instructions, given his counsel the conduct of the trial, all the legal aid and funding that was given for his legal assistance being at a quite considerable level, chose subsequently to make an application that he wanted an alternative counsel. Well, that would have meant revised funding, a new counsel coming in, and what could be seen as a waste of resources. He wasn't applying to represent himself. This is a situation that many jurisdictions, common law jurisdictions, come across, and it's one that courts deal with in this way, and I've had experience of it myself: You represent a client. He wants a change of representation, but the case is at such a level and such a level of funding has been expended that the Court says, "No. You have to stick with those solicitors and counsel. If you don't, you have to represent yourself." That's what happens in my jurisdiction. And in those circumstances, the accused may opt to represent himself, but generally, in 99 per cent of the cases, sticks with his representation in relation to which a vast amount of money may have been expended. And there's nothing wrong with that.

There may be occasions when, of course, the legal aid is transferred from one counsel to another if it's appropriate and the Court ³³²²⁹ deems it in the best interests of the case. But at the end of the line, if he seeks to change his counsel and the courts say no, his option is that he represents himself thereafter. And that happens very frequently.

JUDGE ROBINSON: Mr. Kay, whether the purpose of an accused's action is to change his counsel or to represent himself, I understand Blagojevic to be saying that an accused does not have the right to unilaterally destroy the trust between himself and his counsel and then to benefit from that breakdown in the relationship. And I believe that principle. Although the factual situation is different, I think the principle can be extracted. And it is to be found in paragraph 51, where the Appeals Chamber endorsed the finding of the Trial Chamber that an accused does not have the right to unilaterally destroy the trust between himself and his counsel. Similarly, an accused does not have the right to claim a breakdown in communication through unilateral actions including refusals to meet with or receive documents from his counsel in the hope that such actions will result in the withdrawal of his counsel by the Registrar. I think the principle is equally applicable here. You mentioned the code, and it struck me, when I had the benefit of thinking about it overnight, that the true position is that none of the codes you have mentioned, including our own, deal at any rate explicitly with the situation of an assignment of counsel against the will of an accused. Yet the law has developed to sanction such an assignment. Jurisdictions have it. Therefore, there must be a regime. There must be a regime which deals with the interaction between counsel, an assigned counsel, and an unwilling accused in such a case. ³³²³⁰ That is what is missing from the code. And therefore one is called upon to apply one's mind to those codes which do not have explicit provisions on them and to interpret them in the light of the development in the law. That is the challenge that the Chamber faces in this -- in your -- in your -- in dealing with your application.

MR. KAY: Several issues there in Your Honour's observations. If I could deal with them one by one.

Firstly, in Blagojevic, the counsel did not raise the ethical position. This was an application made by the accused. Counsel did not raise his ethical position. He was in a position where he had been instructed. He had received those instructions and had been given the objectives of the case. He was aware of the accused's position and his overall strategy in the conduct of the case, and what the Court was dealing with there was when the accused, having gone down that route then sought not to cooperate, there having been a relationship in the first place.

Why I said this was a novel situation is that there has never been this relationship in the first place. Whereas the Defence counsel in Blagojevic - and we have a member of his team with us, in fact, working with us on this case - where he presented that case, he had done so on the basis of the instructions already given, and he didn't raise the ethical issue.

The accused, having done what he did as an attempt to perhaps manipulate an assignment to another lawyer and the ramifications that had on the trial process, it was found that that was unacceptable and the ^{33231 BLANK PAGE 33232} Court would not brief another lawyer and all that that entailed. But the accused never sought to represent himself.

That is why there is a big distinction here. And it is, in our submission, dangerous to take some of these strands and say that they open up a new line of jurisprudence. In our submission, they don't. You have to go back to the core principles of what is going on. The Seselj case has been cited. Seselj hasn't been in trial yet. Seselj is only at pre-trial. And the lawyer representing Seselj, who has been told to get lost, essentially, is in a position with no instructions at all. And in the Seselj order, which is phrased very much in terms of assistance: "To assist the accused in preparation of his case; to assist the accused in preparation and presentation at trial; to receive copies; be present in the court; to be engaged actively in the substantive preparation of the case; to participate in the proceedings, in order always to be prepared to take over from the accused at trial (see below)." Such a measure: "In exceptional circumstances to take over the Defence from the accused at trial should the Chamber find, following a warning, that the accused is engaging in disruptive conduct or conduct requiring his removal from the courtroom..."

Very different territory from what we are in now, and the ethical position has not been raised by that counsel yet. And don't forget we're on the second counsel that's been assigned to him. It's very much a supportive, stand-by role, and was very different from the more extreme order passed by this Court on the 3rd of September. And the situation is very different in Seselj with his disruption of the ³³²³³ proceedings and conduct.

Whether it works remains to be seen. And there may well be concern from any lawyer involved in that case in the future with what exactly he can do.

JUDGE KWON: May I ask you, Mr. Kay, why you did not raise this issue at the appeals hearing.

MR. KAY: Well, we were appealing the assignment of counsel issue, which was a single issue before the Trial Chamber. And we did, in fact, raise all the difficulties of presenting this accused's Defence. If I can refer, in fact, because the modalities were mentioned yesterday, and I'm afraid we've undertaken so much work in this case over the last two months that you often forget how things arose and what was said at the time, and I'm guilty of that. Because if I can remind the Court, as we've gone back to the transcripts, that on the 1st of September, Judge Robinson said that in the event that the Chamber should decide to assign counsel, the Chamber would wish the parties to be prepared tomorrow at 9.00 to advance submissions on the question of how such assignment should be made, the manner in which such assignment should be made, that is, the modalities that would given -- govern such an assignment.

That was at a stage when we were amici curiae, and we had been arguing against the fact of the assignment. Overnight, we drafted modalities that we felt suited the Court in the representations and statements that the Court had been made during the day concerning the compulsory attendance of witnesses, concerning taking over the case, the ³³²³⁴ circumstances in which the trial should run. The Court had made it very clear in argument what its view was on the issues, if you go through the transcript.

So on the 2nd of September we came to the stage, after Mr. Nice's representations, that I was asked to produce the modalities that we had drafted for the Court. And this is at the transcript from page 32380 and following, and it's important that we go through it. You can get this on the LiveNote. Judge Kwon, I know, will be ...

[Trial Chamber and legal officer confer]

JUDGE ROBINSON: Yes, Mr. Kay.

MR. KAY: Thank you. Page 32380, line 22: "In view of the Trial Chamber's indication last night of consideration of the modalities, I've drafted a document overnight to try, in some way, put a shape on what might have been the order. If I could hand that in to the Court now. It might be a useful --

"There are always improvements that can be made on drafts --" and it's headed Draft 1 -- "and the first point I urge before the Trial Chamber is really dealing with it in the reverse of the Prosecutor's order, and that is that the accused be granted seven days in which to nominate counsel or counsels to be assigned to him by the registry." We viewed it very much as an important feature here that he should be able to exercise his will. That did not happen. "I've included a handwritten sentence here that: 'Thereafter the accused may nominate additional counsel if he so chooses for his representation,'" and I say it may be an important issue if he wishes to ³³²³⁵ change his counsel because someone is not immediately available until a later date.

"Before I go any further, I've had in mind when I drafted this, something that I'm bound by, which is the Code of Conduct for counsel, and that deals, perhaps, with a number of the issues that have been raised by the Trial Chamber. For instance, in Article 10 there are provisions concerning competence, integrity, and independence." And I cite: "In the course of providing representation, counsel shall act with competence, skill, care, honesty and loyalty, exercise independent professional judgement, render open and honest advice, never be influenced in the matter of his representation, preserve their own integrity and that of the legal profession as a whole, never permit independence, integrity and standards to be compromised by external pressures." I relate to Article 11: "'Counsel shall represent a client diligently and promptly in order to protect client's best interests.' There are provisions of communication confidentiality, and then Article 14 dealing with a conflict of interest which may be the administration of justice best interest issue we were dealing, 'Counsel owes a duty of loyalty to a client but counsel always has a duty to the Tribunal to act with independence in the interests of justice and shall put those interests before his own interests or those of any other person, organisation, or state.'

"Any counsel appearing as Defence counsel, and that includes amici curiae, are bound by the Code of Conduct. There may be, in relation to this particular situation that we would be faced by the Court, that the ³³²³⁶ Court may want to add in specific terms, but it's worth bearing in mind there is a Code of Conduct that applies."

Judge Bonomy related an obvious example and said: "Mr. Kay is a conflict of interest, I think, because plainly there could be a conflict of interest outlined by Mr. Nice, and you would have to somehow or other be protected from any complaint that might be made in view of the role you've been assigned rather than appointed by the client." "Yes. The witness issue," I say. "A lot of Defence counsel have witnesses presented to them by clients that they wouldn't call or wouldn't choose to call. Part of the skill and the art is often making that fit into the case. This is a balance and exercise of judgement about which there has to be discretion. It's a matter of discretion and often judgement which has to be exercised.

"In paragraph 2 --" Judge Bonomy intervenes: "Before you go on to that can I just ask one other question on the general position of counsel so assigned. Do you consider it's necessary to define the obligation any further than is actually set out already in the code which you've already drawn attention to and that is to act -- and that is to act in the interests of the accused or the client? There was reference to the general interests of justice, but it might be thought that general interests of justice are in fact best served by acting in the best interests of the accused." I say: "Absolutely. That's why I've dug up the Code of Conduct. And when drafting this last night I wasn't thinking outside any other dimension than the Code of Conduct that we're all bound by. Indeed the ^{33237 BLANK PAGE 33238} associates of the accused are bound by the Code of Conduct. Anyone acting in one of the cases here is subject to the Code of Conduct, and we all very much bear that in mind, which is why in paragraph 2 I've just put: 'The accused nominated counsel to have the obligation and power to represent him as counsel in the proceedings.' And as counsel that is predicated by the fact that you are bound by the Code of Conduct." I refer to paragraph 3, because of the hybrid nature which the Trial Chamber obviously had very much in mind, and I had drafted those modalities as an order to the amici curiae, as I saw it, to assist the Court in the way they were going with this particular case as a result of the argument the day before. It was not my submission as an assigned counsel on behalf of the accused. And I say we: "... had this very much in mind in considering this issue and the accused's right of self-representation, I suggest that the accused be permitted to continue to represent himself in the conduct of his trial by, inter alia, questioning witnesses, presenting evidence, and making submissions to the Trial Chamber in conjunction with his assigned counsel. And what I would have in mind there, and it may be that this could be improved upon, is that he would go first, and rather like the amici have done so far, if they felt that there was a need to supplement submissions or draw further details to the attention of the Trial Chamber working on the arguments of the accused --"

THE INTERPRETER: Kindly slow down for interpretation.

MR. KAY: Sorry. "-- to do so as a way of supplementing the litigant in person in his representations, which is why the word ³³²³⁹ 'conjunction' has been put in there. And it's not in any way intended to make the assigned counsel go first before the accused. That would be a matter of choice between him and whomsoever he nominated in the structuring of his Defence."

I had seen that the end of the road had perhaps come for this accused in relation to his right to represent himself in view of what had taken place in argument the day before and indeed the ruling of the Trial Chamber that came about, and I was hopeful that this would be a matter whereby the accused might well see that the time had come for him to cooperate in the conduct and presentation of his Defence. I then go through the paragraphs. I state: "In paragraph 4 I have to deal with the further situation that in the event of the failure of the accused to nominate counsel on his own behalf, the Registrar of the Tribunal --" I'm at line 11. At line 11 on page 32385. "The Registrar of the Tribunal will assign counsel to represent the accused, who in circumstances and conditions in which the accused is unable or unwilling to take part in the proceedings, will conduct the case on his behalf. This is further elaborated upon. 'In the event of the failure of the accused,'" and I cite there, "'or any persons acting on his behalf,' and by that I mean those working with him currently in his Defence, 'cooperating with assigned counsel in the production and calling of witnesses identified by the accused as potential witnesses in his case, assigned counsel may," and that's the important word, "call those witnesses or any other witnesses deemed by him to be relevant in the case.'" And the first working place here, I say, should be the accused's ³³²⁴⁰ working list and that's what should be sought to be brought before this Court.

I say: "I resile against some of the indications from the Prosecutor that counsel may call entirely his own witness list." And I say that that "would not be in the interests of justice," and I say that "one must bear in mind whose case this is. It is the defendant's case, and whatever beliefs or knowledges, whoever is assigned counsel may have, it's not his case in terms of being the defendant, and that's what should be worked upon foremost, and I would see it very much in terms of trying to deal, whoever had this role, in a consensual way with the accused, on his list, which is why that paragraph is within." And then I go through paragraph 6 and 7, and I say at line 15: "And that's been included very much as a result of the Trial Chamber's rulings that expedition is one of the reasons why they have taken the course they have today." And I refer to funding and say at line 22: "So this -- this model works very much on the basis for implementation, that it is the accused who should have the first choice, counsel nominated by him would be bound by the Code of Conduct in any other way that counsel appears before the Trial Chamber, and the order would enable him to function in conjunction with the accused. Assigned counsel that has not been nominated by the defendant to be very much a last resort and then attempting to work within parameters of cooperation." And I say that the role of the amici was completely different, but Judge Kwon referred at page 32388, line 5, very much what could have been in the air. ³³²⁴¹ "Mr. Kay, thank you very much for what you have said. Can I ask this, it's a general question: The Chamber decided, as was announced, to assign counsel, but there may be some ways, various ways of assigning counsel. There might be a way, rather than by assigning a counsel, by expanding the role of the amici curiae. It may not necessarily be you, Mr. Kay."

And Judge Kwon refers to the amici, "playing a role that is similar to that of Defence counsel, so it may be a matter of nomenclature, but if the Chamber redefined and expands the role of the amici curiae to include to represent actively for the defendant, what would you say to this?"

"I urge that we should go to stage one where the accused is able to appoint a representative first and foremost. If we have to go beyond that stage --"

Judge Kwon said: "That's the option which is open at any time to the accused."

I refer in 32389, it would be a way of using the nomenclature of amici in a way that continues with assistance to the accused. So expansion of the role of amici, whilst very different in terms as to what we were doing before, it could be actively presenting his case if he was unable to attend court.

So I have to say that I told this Court fairly and squarely about the Code of Conduct and advise that anyone working would have to do so within that code. The fact that we draft -- make a draft for the Trial Chamber was the result of being asked by the Trial Chamber to do something ³³²⁴² for them which they may implement. The responsibility was the Trial Chamber's, and this was just a draft. And I say quite clearly you may want to go to the Code of Conduct and consider matters. And the word "may" is used. This was very much speculation. We were at a time when the issue of the accused's representation was by no means settled in how things were to develop and unfold.

The problem that came about, in my view, was the modalities and the extreme form. That is what caused a breakdown in relations, and we feel caused us eventually to be at the stage where we are in conflict with the client, as assigned counsel, and why we have had to make the application to withdraw. This arises from the conduct he has engaged in, which has been to criticise our professionalism, to play the trick with the witness Kanelli, to encourage a report to the Dutch Bar against our conduct of his case. We have had to, in our own position, continue to fight to his -- for his rights to represent himself, and in doing so in the Appeals Chamber have had to say this is his case, we don't know it. This is his Defence, this is something that only he can present, and refer, in fact, to once, as I cite in our text, once what was a cordial relationship has deteriorated and that we are unable to function with him. So this was all spelt out in relation to what could happen, and we find ourselves, because it is our decision to judge the consequences of that, that we feel that we have an ethical issue that has put us at the point of no return. And it would be difficult in the future for anyone to say, "Well, of course that's not his Defence because Mr. Kay said down at the Appeals Chamber when he got his rights back for the accused. He said ^{33243 BLANK PAGE 33244} he didn't know his Defence and couldn't present his Defence." Judge Bonomy said yesterday, Well, you can pick these strands up out of what is said and what is done and representations that there may be. You can to a certain extent as amicus curiae, but there does reach a point when the whole thing founders and you're driven into the sand and you are unable to function ethically correctly.

If the Court had suspended the proceedings pending the appeal, it might have been a different issue. If the Court had, pending the appeal, permitted the accused to question the witnesses first and be in the driving seat in the presentation of his case, it might well have been a different issue, and it may not have caused an ethical issue. We are very much here in a novel and unique series of developments.

JUDGE BONOMY: Mr. Kay, the difficulty I have with this submission is that this was all foreseeable. I was very concerned at the time, as you've pointed out, about the application of the Code of Conduct, and I regarded your responses at the time as indicating the code applies, no question of any attempt to modify or amend it in the circumstances, we will work against that background, we have considered our submissions against that background, it's entirely on that basis that we present these proposals. And included in these proposals was the foreseen situation that there would be no cooperation and that you would be faced with the position you're faced with today.

And you've now outlined specifically the basis on which you say there is an ethical problem for you, and all it amounts to, as far as I can see, is that you're being criticised. ³³²⁴⁵

MR. KAY: No, not at all, and we'll go to the codes later on. Our conduct is being impugned. And this is not a question of a dispute over tactics. This is a question of an issue between the accused and ourselves as to whether we are proper counsel, whether we have -- are fit enough to conduct his case.

He might be wrong about that, but it is an issue there that impugns our professionalism. It is not a dispute or argument that may arise over the questioning of a witness or a tactic in a case that sometimes you may come across in a trial. It is more a personal matter and that anyone looking back on this case, if we were in the future to be involved, will say, "Well, he called his counsel a prosecutor, he was involved in reporting him for unprofessional conduct to the Dutch bar, he was in his dispute with him, the counsel himself had to argue against his own position at the appeal, the counsel then raised it to the Judges and said this was of concern in his ethics, the Judges wouldn't pay attention to that, but all these warnings and signals show that there was a conflict of interest in the representation of the accused by assigned counsel." And of course these things were -- were predicted, but as I say, you have to work within the Code of Conduct. And I used the word "may." You don't know how things are going to develop. And I must say from the experience I had working as amicus curiae when there was no acknowledgement between the accused and ourselves, and there was indeed a hostility on the first day, but we were appointed by the Court and didn't have a professional relationship with the accused, and we were performing a function for the Judges in assisting the accused but without that ³³²⁴⁶ relationship that comes about from an accused and his counsel. We developed a cordiality that was apparent, and Mr. Milosevic has made no secret of that and has referred to submissions that we have made on occasions with approval, or questioning that we have done with approval. But we have moved beyond there. And I was hoping, as indeed everyone was hoping, in fact, that we could make this work, and that is why we were acting in good faith and wanting to keep the accused in the driving seat.

You often get to a crisis point in a case where decisions have to be made, where you're going with it. And we were all there at the beginning of September, and perhaps he could have been there as well, that there would have been assistance that he would have welcomed in the presentation of his Defence and being, as I referred to later on in the transcript, to a development of a relationship that would enable his Defence to be effectively and properly put.

JUDGE ROBINSON: Mr. Kay, he's back in the driving seat now. He has been put back in the driving seat now. Doesn't that resolve many of the problems that you have raised?

MR. KAY: Again we've got the two distinct issues, which is my ethical position that I feel today as well as what this Court may do if it continues with assigned counsel and the Code of Conduct. And Your Honour has said, well, you feel the Code of Conduct isn't the answer to this and it doesn't deal with this situation. I'd like in fact to refer you to the regulations --

JUDGE BONOMY: Could I just briefly intervene before you do that? ³³²⁴⁷ It's on the same subject, but can you remind me before you do so where in your pleadings, your filing, you refer to conflict of interest as being the issue.

MR. KAY: In which pleading, My Lord?

JUDGE BONOMY: In the filings you've submitted to us in relation to your motion to withdraw. Where do you identify it as an issue of conflict of interest?

MR. KAY: I think we cite all the regulations that --

JUDGE BONOMY: Yeah, you can throw things at us and leave it to us to sort it out or you can focus the issue.

MR. KAY: It's page 14 --

JUDGE BONOMY: Page 14, thank you.

MR. KAY: -- paragraph 38. And again, this is something that -- I cite Article 14 of the Code of Conduct, and counsel owes a duty of loyalty to a client. Counsel also has a duty to the Tribunal to act with independence in the interests of justice and shall put those interests before his own interests or those of any other person, organisation, or state, which may well be an issue that we're having here.

JUDGE BONOMY: Thank you. That clarifies the point. Thank you, Mr. Kay.

MR. KAY: Yes. And I raise there that the loyalty to a client who doesn't want to have assigned counsel causes a clear conflict of interest.

There's no relationship between us. There isn't the fiduciary relationship that you get between attorney and client. We can't advise ³³²⁴⁸ him if he wants advice. We can't consult with him. And at the end of the day, we have tried to make this work, working from the basis of our original submission, but as I said yesterday, it foundered in the sand, and what may have been --

JUDGE BONOMY: We've heard this several times already. I understand the point.

JUDGE KWON: Mr. Kay.

MR. KAY: Judge Kwon.

JUDGE KWON: You yourself said earlier than just now that all problems stems from the extreme form of modalities which was quashed by the Appeals Chamber. So as Presiding Judge pointed out, please concentrate on the new regime, which is guided by the Appeals Chamber decision.

MR. KAY: Yes. He is back in the driving seat, which was the phrase that was used, and that's probably the most appropriate phrase to use in these circumstances.

Our point is it is what has occurred over the previous eight weeks which has caused this conflict and this ethical issue. And it is very much a case where we have been publicly criticised, impugned, and that has caused, we feel, a position where our relationship, if anyone was to view it, they would say, well, this is not the healthy basis for an assignment that should exist, because you've had this conflict between him and you. It -- that conflict, it cannot be made right by a revised order of modalities. That is what we are saying to the Court. We are concerned about our professional position. ^{33249 BLANK PAGE 33250}

JUDGE BONOMY: But it does mean in the end, Mr. Kay, that you can never assign counsel to an intransigent client.

MR. KAY: It's what they do as assigned counsel that may well be the issue. And it may come down to that, but it's what they do and how they build.

Often you'll get an accused and you're meeting him for the first time and he doesn't want you and you're a replacement counsel, and you perhaps get more than five minutes, you get ten minutes, 15 minutes, 20 minutes, and you work on it, and you may build that kind of relationship that can then make it work. It's not an exact science, and it's sometimes why some of us are Defence counsel, as we are quite good at handling people.

You do get the extreme case, and that is where we are now, we feel.

JUDGE ROBINSON: Mr. Kay, I'd like to say two things. First, is there not an element of prematurity in your application? You have more than once stressed, as Judge Kwon just said, that the basis of the problem was the modalities order. That has now been changed, effectively, by the Appeals Chamber. You have no way of knowing with any certainty the kind of relationship that will be produced by that change as between yourself and the accused. So there may be an element of prematurity in your application.

The second point I wanted to make has to do with the regime relating to the assignment of counsel against the will of an accused, and which I say is not dealt with explicitly in the code. ³³²⁵¹ If your submissions are correct, then it is not possible -- it would not be possible, as Judge Bonomy just said, to assign counsel against an intransigent client. But if it is lawful, as the Appeals Chamber has clearly indicated, and competent to assign counsel, then there must be a way of implementing such an assignment. It cannot be that such an assignment can only be implemented if the accused cooperates and communicates with counsel.

Quite clearly the Appeals Chamber envisaged some activity on the part of assigned counsel, because they go on in their judgement to deal with the situation where the accused is ill and assigned counsel taking over the case during his temporary absence from court. Now, if the Appeals Chamber envisaged that, that clearly implies activity on the part of assigned counsel, and an activity which may very well have to go on and take place without instructions and without communication from counsel, because there may be none. But the Appeals Chamber clearly envisaged that, during his absence, assigned counsel would continue the case.

And so it comes back to the question that the issues that are raised by your application, I have to say, go beyond your personal interest and affect the entire administration of justice in this case, because I cannot accept -- I find it difficult to accept that you have a situation in which it is competent for a Court to do something but it is not legally possible to implement a decision which is totally in conformity with the application of that competence. And I believe the law now is, and the codes probably should be brought up to be in conformity ³³²⁵² with that, the law now is that it is competent in certain situations to assign counsel. The Appeals Chamber affirmed that part of the decision and clearly envisaged a role beyond one of mere passivity by counsel. And so the difficulty, I think, that the Chamber faces in accepting your submissions and your application is that it may in effect mean that in this case counsel cannot be assigned unless the accused cooperates with counsel or communicates with counsel or unless there is envisaged for counsel a role which doesn't go beyond one of mere passivity.

MR. KAY: Sometimes the winds of what happened elsewhere should blow into a court and a justice system to provide fresh air on an issue, and in my jurisdiction this would be handled, quite simply, by the fact that if you didn't want counsel, you didn't get it; you'd represent yourself. And that's how -- there would be no question in an adversarial system, which is party driven, of doing what we are doing here.

JUDGE ROBINSON: Let me say something about that because I too have struggled with the nature of the system which we have here. And you have said it is adversarial, and I come from the adversarial model and am firmly grounded in it, but I've had to undergo a restructuring of my thinking in relation to how the Tribunal operates. It is true, I think, that in principle the system for presentation of evidence is adversarial, but it is not entirely adversarial. Many elements from the civil law tradition have been introduced into the system, and so if you approach it that way, you are going to end up with the wrong conclusions. And I've had to teach myself that. ³³²⁵³ You well know the position that I've taken, for example, in the Prosecution's case on cross-examination. It is informed by the adversarial system out of which I come, that it is the case is the case for the accused, and he knows his case best, and therefore, he must be allowed to cross-examine. That is what has informed my entire position and why I dissented consistently on that question. But it is not true to say that the system that we have here is wholly adversarial. If you want a correct description of it, you'd have to say it is primarily or essentially adversarial. So that when you say that the case is the accused's, even that has to be -- even that has to be changed, in my view. The case is the accused's in some respects, but in other respects, because we have introduced strong elements from the civil law tradition, the case is also the case -- the case also belongs to the Court. It is also Court driven, judicially driven, in some respects. So it is not correct, in my view, to say that the system is adversarial. The correct description would be that it is primarily or essentially adversarial. And it is in those elements, it is in those areas where it is not adversarial that I think we have -- we have the problems for lawyers who come from the common law adversarial model.

MR. KAY: The problem I have is actually reflected in the Dutch Code of Conduct, the same issue, and it's not confined to the common law ethical dilemma.

The President in the Appeals Chamber hearing asked me what I would suggest, and I was very conscious. I've been practising in this Court since 1996, in the International Tribunals. And I said, Well, it's his ³³²⁵⁴ case, his responsibility, let him do it and he takes responsibility for it. If the Court wishes to deal with any Defence issues on the indictment that he has not covered, not been adequately presented, they can call evidence through their own counsel. And that would be, in my view, the way that this Tribunal could function as a hybrid on this particular issue.

But the part of the -- the dimension of the case that we are dealing with is adversarial, in fact, when it is the accused's case. There are devices and means that you could introduce the judicially driven system as a valid component which exist under the Rules.

JUDGE ROBINSON: Well, let me intervene there. In those jurisdictions where -- and this includes the jurisdiction of the accused, where it is mandatory to have counsel for certain offences -- and let us be clear about this: If the accused were being tried in his own country, counsel would have been assigned to him against his will from the very beginning. But in those jurisdictions and other jurisdictions which were cited where the law provides that where there is no cooperation or communication from accused, counsel acts in his best interest, in what counsel determines to be his best interest, the concept and the principle underlying that approach is not adversarial, because it overrides the interest of the party, the accused. And we have adopted that approach here. So in that respect, in my view, that is not following the adversarial model, because if you are following the adversarial model, counsel would not be permitted to determine the best interests of the accused. It would be left entirely to the accused. ^{33255 BLANK PAGE 33256} So it is envisaged in some jurisdictions that counsel and the Court can, when an accused is intransigent, refuses to cooperate, refuses to communicate, take action in the wider interests of the administration of justice.

MR. KAY: In the civil law model that Your Honour referred to, which has been referred to many times by the Prosecution without ever producing the Code of Conduct from the Yugoslavia Bar, there is no obligation to put the case of the accused by the stand-by or court appointed counsel. That's the great difference between the judicially and party driven systems. And what is expected within this system is the putting of the case and the putting of the Defence case by the Defence. And that is where, in fact, the common law code and the code of this Tribunal do apply to this particular situation that we're faced with. The Code of Conduct that we have, we submit, is very clear on the issue of what assigned as well as counsel chosen by the accused can do or not. Maybe if we look at those regulations now it might well assist if we are considering what those duties are and how they are particularly framed, we say, to deal with this issue.

The Appeals Chamber, in citing, in paragraph 20, what may happen in the future in relation to this case, was solely dealing with the issue of the fact of the assignment, that issue of law. The issue of the Code of Conduct was not before it and the Judges weren't seized of that matter, because the two issues that have brought us here to raise these matters, as I've said, are distinct.

And if we could just go -- ³³²⁵⁷

JUDGE BONOMY: Can you possibly go straight to any provision that is in conflict with the codes of civil law jurisdictions.

MR. KAY: No, I'm afraid that would fail me to say what would be in conflict with a civil law code within here. We do have the Dutch code within here, and we have the international code. So it may be that that comes about, but on the cuff, can't do it.

JUDGE KWON: But how about a Scottish lawyer who is assigned to defend the accused in sexual offences case against his will?

MR. KAY: These are Home Office regulations, as we know, concerning the imposition of counsel. There's a big issue in rape cases where an accused choose to represent himself and cross-examine the rape victim, which has been found offensive.

We're not -- in our respectful submission, we are not in this territory with this case. It is not the kind of issue --

JUDGE KWON: But the Presiding Judge pointed out that our Code of Conduct or Codes of Conduct you're referring to did not envisage such instances as this when counsel was assigned against the will of the accused, in particular for health reasons.

MR. KAY: The Code of Conduct is something that was devised with representations from the Judges, Bar, many outside institutions, to regulate Defence counsel and also protect Defence counsel, and violations of that code we are held responsible for, either at our own Bar or here.

JUDGE BONOMY: I think, though, Mr. Kay, Judge Kwon's point is that these -- these changes are taking place in common law jurisdictions. In my own jurisdiction, there seems to be the most extreme change of all ³³²⁵⁸ in respect that an accused person in a sexual offence case cannot even appear at a preliminary hearing without counsel even should he wish to do so.

Now, the Bar code hasn't been amended to deal with that situation, so it must be read against that background. You make the point that there are regulations which provide, to some extent, for the situation, and indeed legislation that may say what the duty of counsel is, but nevertheless the code still applies and has to be read in the context of the legislation. And as Judge Robinson said, that's precisely the job we have to do here; we have to read the code against the legislation that we're dealing with.

MR. KAY: Yes. And the problem of taking such an extreme circumstance as the sexual case, which has to do with the victim and the accused and what has taken place or alleged to have taken place, is that we are dealing with a far fuller and rounder indictment, and I don't think any country, any state, would start amending its legislation to take away the right of self-representation in further cases such as this. It would be an extreme measure that probably would not be welcomed. The particular category of sexual offences often does cause difficulty. There's separate provision in the Rules here in relation to cross-examination in sexual cases. They throw up a distinct line that can be distinguished from this particular case.

I'd like to direct the Court to the preamble of the code. The bundle that you were provided with has a Registry identification number in the top right-hand corner of 39454, and it's the Code of Professional ³³²⁵⁹ Conduct for Counsel Appearing Before the International Tribunal, as amended on the 12th of July, 2002. Of course, this accused started the proceedings against him in July of 2001, so his case which has been before the Tribunal has even been in existence during amendments to this code, which obviously is something that is a document that may be amended to cope with different situations. It's been amended subsequent to him representing himself and, indeed, having health issues. The Registrar has considered the Statute of the Tribunal, the Rules, the directives. Considering that counsel shall, and it's mandatory, adhere to a code of professional conduct in the performance of their duties, considering that counsel appearing before the Tribunal come from various jurisdictions and that the interests of justice require all counsel to adhere to the same code of professional conduct, and considering the revision of the code.

So this is not something that arrives just from the common law tradition. It is a multi-jurisdictional document which is enabling lawyers from Serbia, UK, America, to be able to perform their function in this court.

We go to Article 8, Registry page 39452, which deals with the scope of representation. And it's a scope that was devised to take into account the proceedings within which we all perform. And it says: "Counsel shall advise and represent a client until your representation is terminated. When representing a client, counsel shall abide by the client's decisions concerning the objectives of representation. Consult with the client about the means by which those objectives are to be ³³²⁶⁰ pursued but not bound by the decision, and seek or accept only those instructions which emanate from the client and which are not given as the result of an inducement from any person, organisation, or state." So it has very much in mind that the function of counsel shall be within those terms of what we would -- we would say are instructions, which are the objectives of representation.

JUDGE BONOMY: But it's easy to read that provision in the light of the current circumstances. You could not possibly be said to be in breach of any part of that provision.

MR. KAY: It's a bedrock of what happens. If you went back to Article 3 and saw the basic principles, in Article 3, which underwrites the obligations here, client having the right to legal assistance. "As legal practitioners, counsel shall maintain high standards of professional conduct." That is why we're concerned with how we are viewed. "The role of counsel as advocates in the administration of justice requires them to act honestly, independently, fairly, skilfully, diligently, efficiently, and courageously. Counsel have a duty of loyalty to their clients consistent with their duty to the Tribunal to act with independence in the administration of justice."

JUDGE ROBINSON: Mr. Kay, I think one thing should be clear: When you mention the obligation to maintain high standards of professional conduct, you're not unprofessional merely because the accused says so. You're not unprofessional merely because the accused describes you as a prosecutor. I'd like that to be quite clear.

MR. KAY: I accept that, and I would take issue, perhaps in ^{33261 BLANK PAGE 33262} different circumstances, to argue that matter out if I'm ever given the opportunity, but so far I am not.

Article 4, just below there, says: "If there is any inconsistency between this code and any other codes of practice and ethics governing counsel, the terms of this code prevail in respect of counsel's conduct before the Tribunal."

This is very much the defining document over what we are -- should -- to do.

I've dealt with Article 8. Article 10. Competence, integrity, and independence. The court can see those. They also include loyalty. Render open and honest advice, never be influenced in the matter of representation. Importantly, preserve their own integrity and that of the legal profession as a whole. And the Court is right, this does have wider ramifications. "Never permit their independence, integrity, and standards to be compromised by external pressures." And that is why I'm saying, in resistance to the Court, I do not want to compromise us and violate the Code of Conduct. And we have the duties of diligence and conflicts of interest.

Article 14, again, we've cited that already: "Counsel owes a duty of loyalty to a client. Counsel shall exercise all care to ensure no conflict of interest arises."

That is that code which requires us to abide by his objectives of representation. Well, what are they? They are: I don't want you calling my witnesses, I don't want to talk to you, I don't want you participating in my case. That's part of the objectives of representation of this ³³²⁶³ accused. I am faced with that background, you see. And that's been made clear. We've been able to try these things out and see where it got us from the 3rd of September until the Appeals Chamber decision, and we've been able to see that our function could not work. I have set out, because it's important to us, at 39436 from my own Bar what is applicable to all barristers and what is important as well, because if there is a conflict between this code and my Bar code, then I have to follow this code, but if this code is silent, I have to pay regard to my Bar code because I have a liability back home to anything I may do in whatever court wherever.

"A barrister must have regard and must not engage in conduct, whether in pursuit of his profession or otherwise, which is, in 3, likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute."

I have argued for this man about the retention of his rights and said quite firmly at the Appeals Chamber that I do not have possession of his Defence case. I am concerned, as I have made clear, that anyone looking at this in the future would turn around and say, "Well, you had said that about his Defence. How could anyone ever accept what you said as being accurate? There is a conflict of interest."

JUDGE BONOMY: Going back to Article 14.

MR. KAY: Yes.

JUDGE BONOMY: It does seem in context that it's not dealing with the issue of a conflict between client and counsel but the situation where ³³²⁶⁴ counsel has a conflict of interest because of other matters. Is that not so?

MR. KAY: It's -- the whole -- all issues of conflict of interest are within the same article, involving liability, representing co-defendants, financial interests. Every single form of conflict is under the one heading. And the conflict of interest concerns counsel rather than an accused. It's written from our perspective, which is why it would say counsel shall exercise all care to ensure that no conflict of interest arises, and that may be with him and the client, with him and the Prosecution, with him and whatever.

JUDGE BONOMY: And again, you couldn't be said to be in breach of that.

MR. KAY: Well, there is in that, in putting forward the objectives of his representation, it could arise because I've said I don't have his Defence and I don't know his Defence and I've not been given it, that there is a conflict of interest if this Court required me to commit such an act and put that forward. Clear conflict of interest, we submit, under Article 14.

We have a duty of loyalty to the client. Our client says, "Don't want you. Out of my case."

JUDGE BONOMY: You see, we dealt with that, Mr. Kay, as best we could in the modalities order in which we provided that you were to act throughout in the best interests of the accused. So we specifically did exactly what the statutory provisions in common law jurisdictions do where the right to represent oneself is removed. We covered counsel's situation ³³²⁶⁵ by stating clearly what you do is act in what you perceive to be the best interests of the client.

MR. KAY: But you've made me his counsel, and as making me his counsel, I owe a duty to him, not to you. My loyalty is to him. That is explicit.

JUDGE BONOMY: But your duty is to do your best not to create a conflict of interest and to act in his best interests, and no one can say you've been doing other than that.

MR. KAY: Well, it may well be -- well, we have reached the stage where there are imputations about our character. There is a conflict over the conduct of his case. There is this essential conflict. And I owe a loyalty to him, because he says, "I don't want you. I don't want you doing anything." And my loyalty has to be to him on that issue. I can't -- now, we have tried to make this work. It didn't succeed. I can't now go any further with this issue, him having expressly made his intentions and wishes clear, me having expressed it in the Appeals Chamber. I have acted in his best interests and out of loyalty to him to appeal the ruling and attempt to get his rights back, and that has been something -- an obligation about which we had a consistency.

But my loyalty now comes from totally there. I cannot be in any way removed from that, and that is the difficulty with assigned counsel.

JUDGE BONOMY: Let me give you an example, Mr. Kay, of what might happen hereafter. Let's assume a witness called by Mr. Milosevic is examined at great length and a number of relevant points of evidence are given by the witness and a great deal of irrelevant evidence is given by ³³²⁶⁶ the witness. Let's picture that possibility for the moment. And in the course of that, because concentration -- his concentration is misguidedly upon irrelevant issues, you spot something significant and simple that he's missed. You know about it because you've been involved in the case from day one and you've got the broadest possible experience of it. What would you do when it came your turn to participate in the trial after he had completed his examination?

MR. KAY: And if I was assigned counsel rather than amicus or anything else.

JUDGE BONOMY: Yes.

MR. KAY: Yes. As assigned counsel, I'd have to ask his instructions to make the point.

JUDGE BONOMY: And -- precisely.

MR. KAY: And if he said no, that's it.

JUDGE BONOMY: You would have instructions. Let's assume he said, "Please yourself," which he may do.

MR. KAY: That might be ambiguous. I would take that as an ambiguous issue that I might be able to run with. I'd have to consider it, but --

JUDGE BONOMY: Your duty is to act in his best interests. It's been spelled out. So you would need to consider it against that background, but you wouldn't be hamstrung.

MR. KAY: If he told me no, I don't know his -- I don't know why he hasn't asked it, and it may be that it's a damaging -- it comes about that it's a damaging question. And if it is and I've then damaged his ³³²⁶⁷ case because I don't have his instructions at all and I just go ahead and ask it with the best of intentions and well motivated and without his instructions and I get the wrong answer, I've damaged his case. I am in breach. I haven't been loyal to him.

It's very different from the amici position where we were not put in this fiduciary position.

JUDGE BONOMY: Mr. Kay, for my part, I have to say that I consider you to be completely wrong in your assessment of the consequences of the situation as you've pictured it. The provision is quite clear in the modalities order that you would be acting in accordance with it in the best interests of the client as you saw them.

MR. KAY: The problem is in assuming that you know the case. And when you question a witness and discuss a Defence with a client, you seek to avoid damaging answers, and so you -- you tell them, "Look, I'm worried about this, and if it goes wrong, what do we do?" And the client may say, "Don't ask that question. I'll tell you why. There's another witness here." But that's because you're in a position where you're communicating, you're discussing the case, you have a fiduciary relationship, and it can work. It does work. But if you don't have those instructions and you ask that question, well motivated and not with any malicious intent, thinking you're acting in the best interests - and that's the problem, thinking that you're acting in the best interests - and it goes wrong, the defendant could appeal and say, "I gave no instructions for that question to be asked, it was a damaging question, my counsel was negligent, incompetent, and I want a retrial." ³³²⁶⁸ We get this very often now. All high-profile cases are subject to that kind of scrutiny. In the last ten years, this has been a growth industry against Defence counsel in criminal cases at all Bars, and it's why we are very concerned about some of these issues today. We cannot be as robust as Defence counsel perhaps were -- well, I know they were, 20 or 30 years ago. The appeal system and scrutiny and the concern for accused's rights which has had such a powerful effect on all justice systems require Defence counsel to be very, very careful in their conduct and behaviour.

I was -- I hope I dealt with this issue. I was just referring the Court to my own code at -- it's half past ten.

JUDGE ROBINSON: Yes. Thank you. Well, we'll take a break for 20 minutes.

--- Recess taken at 10.30 a.m.

--- On resuming at 10.58 a.m.

JUDGE ROBINSON: Yes, Mr. Kay.

MR. KAY: Thank you, Your Honour. Just before the short adjournment, we were looking at the English Code of Conduct, and I was on page 39435, top right-hand corner of the Registry bundle. And it's regulation 307 at the foot of the page.

"A barrister must not: (a) permit his absolute independence, integrity and freedom from external pressures to be compromised; (b) do anything ... in such circumstances as may lead to any inference that his independence may be compromised."

And then (c): "Compromise his professional standards in order to ³³²⁶⁹ please his client, the Court, or a third party." And perhaps the Court can understand now why we are in this territory that we are.

The Code of Conduct at 609, if you turn to top right-hand corner 39428. Regulation 609. "Subject to paragraph 610 a barrister may withdraw from a case where he is satisfied that: (a) his instructions have been withdrawn; (b) his professional conduct is being impugned; (c) advice which he has given ... has not been heeded; and (d) there is some other substantial reason for so doing."

Again, it is from that particular perspective as well that we are viewing the professional issues that have arisen. At Registry page 39422, we set out the Dutch Code of Conduct, headed "Relationship With The Client. The interest of the client rather than any self-interest of advocates shall determine the manner in which advocates are required to handle cases."

It's 39422. And it's the reverse numbering system for filing that requires mental gymnastics, but 39422. Right at the top there, Your Honour, at Rule 5 in the Dutch Code of Conduct: "Interest of the client rather than any self-interest of advocates shall determine the manner in which advocates are required to handle cases."

Rule 9: "Advocates shall assume full responsibility for the handling of a case. Advocates may not evade this responsibility by invoking the instruction received from their client. They shall not however, perform any acts against the apparent wishes of the client." And in 2: "If a difference of opinion exists between an advocate ³³²⁷⁰ and his client concerning the way in which the case should be handled, and this dispute cannot be resolved by mutual consultation, the advocate shall withdraw."

Next area which is of relevance is the Code of Conduct for Lawyers in the European Union.

JUDGE BONOMY: Remind me, Mr. Kay, before moving on to that, whether the Dutch system is one in which there are any rules obliging or requiring a representation in criminal proceedings.

MR. KAY: No. I'm thinking back to the discussion I had with a Dutch lawyer when this was arising on the 3rd of September, and maybe if we could just have that looked at.

JUDGE BONOMY: I can get the answer later. Just carry on for the moment. Thank you.

MR. KAY: I'm sorry, I did know the position, but I can't recall the issue.

Looking at the -- what I -- what the position would be with a Dutch lawyer is that he would not participate, in the circumstance. That was the summary of the advice that we were given by a member of the Dutch Bar, that he wouldn't even try to have made the modalities work, that they would just withdraw and that would be it.

The Code of Conduct for Lawyers in the European Union is at 39408, and it's 39403, at paragraph 2.7 that we consider the client's interest within the European dimension.

"Subject to the due observance of all rules of law and professional conduct, a lawyer must always act in the best interest of his ³³²⁷¹ client and must put those interests before his own interests or those of fellow members of the legal profession."

And the issue we have here is what has been expressed by the accused in relation to us participating, and that is his interest that he is guarding to himself.

In the draft code of the International Criminal Court, which is set out at Registry page 39393, independence of counsel is set out at 39389. Paragraph 7, subparagraph 2: "Counsel must not (a) permit his or her absolute independence, integrity and freedom to be compromised by external pressure."

In (b): "Do anything as may lead to any reasonable inference ...; or (c), compromise his or her professional standards in order to please the client, the Court, or a third party."

And the Court will remember that that was reflected in the English Bar code at -- I think it was 609. Which is why we say that the professional Code of Conduct is binding on us and causes us to act in accordance with that rather than any order of modalities that would conflict with it.

Loyalty and integrity, paragraph 2: "While maintaining due respect and courtesy towards the court, counsel shall defend the client's interests honourably and fearlessly without regard to counsel's own interests or to any consequences to counsel or other persons." And that was the issue I was saying that he is now my "client," I'll put in inverted commas, and he has made his position clear and stated it, and that is what I'm following in relation to his apparent ³³²⁷² instructions on the issue.

In 39384, paragraph 20 in section 3, the scope and content of the agreement. At the ICC the concept is that there is an agreement like a contract between counsel and client in relation to conduct of cases. They've put it on very much in a formal basis. And that's what they're referring to here.

Subparagraph 1: "The relationship of client and counsel is one of candid exchange and trust, binding counsel to utmost good faith in dealing with the client. In the discharge of that duty to the client, counsel must always act in fairness, honour, candour and fidelity to the client." And although we don't have any position with him, we trust we are being faithful, as far as we can in relation to this matter, as we were in relation to the appeal, to his interests in the way that we present them. At 39373, we have from the Union Internationale des Avocats, the International Charter of Legal Defence Rights, and Article 5, which is at Registry page 39372, deals with: "Every person shall have free and effective choice in selecting his lawyer," is Article 4. Article 5: "The participation of the defending lawyer must be effective. This means that he has the duty to apply adequate competence to this work." Again, this code is very much based on the fiduciary duty. And in 39370 at Article 13: "Duties of lawyers arising out of the rights and guarantees of legal representation.

The duties of the lawyer in regard to his client consist of advice in (a); (b): "Taking such existing legal measures as are necessary to protect him and his interests; (c) representing and assisting him before ³³²⁷³ the courts or administrative authorities ...

"In carrying out his tasks, the lawyer shall at all times act with complete freedom, diligently and courageously, according to the law, respecting his client's wishes and the ethics of his profession without concerning himself with restrictions or pressures to which he might be subjected by the authorities or the public."

At the International Bar Association documents set out as a result of the IBA conference in New Delhi, 1982, are various regulations governing judicial independence as well as lawyer independence. If we went to 39365 in the section dealing with lawyers -- if I can just correct that, because this actually arises at 39365 from the Council of Europe. The previous page actually arises from materials I had from the IBA when on their working party concerning the code for the ICC, and that page is an extract of the previous page. At 39365, from the Council of Europe recommendations: "Duties of lawyers towards their client should include: (a) advising them of their legal rights and obligations ..." In (c) "taking legal action to protect, respect, and enforce the rights and interests of their clients; (d) avoiding conflicts of interest; (e) not taking up more work than they can reasonably manage."

At page 39363, basic principles on the role of lawyers, coming from the United Nations conference in Cuba in 1990, is a general statement of the standards. Excuse me. And it's paragraph 12, which is Registry page 39361.

"Lawyers shall at all times maintain the honour and dignity of ³³²⁷⁴ their profession as essential agents of the administration of justice." 13 sets out duties of lawyers towards their clients, including advice, assistance, "protecting the rights of their clients in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognised by national and international law, and shall at all times act freely and diligently in accordance with the law and recognised standards and ethics of the legal profession.

"Lawyers shall always loyally respect the interests of their client."

We observe here that in line with all the previous international documentation, running through this is respect for the client, respect for his case, and actually representing him according to the ethics of the profession, and loyally respecting the interests of the client. We've also included the NOTO principles, which were the draft principles on the independence of the legal profession. Article 17 of that, which is at Registry page 39357, deals with the rights and duties of lawyers relative to the independence of the profession. "The duties of a lawyer towards his client include: Advising ... taking legal action to protect him and his interests ... representing him before courts, tribunals, or administrative authorities. "In doing so, the lawyer shall at all times act diligently and fearlessly within the law in accordance with the wishes of his client and subject to the established standards and ethics of the legal profession." And also within the bundle, at 39346, duties and rights of lawyers. "Duties of a lawyer towards his client include: (a) advising ³³²⁷⁵ the client as to his legal rights and obligations, and as to the working of the legal system ...; (b) assisting the client ... (c) representing him before the courts ..."

At 83: "The lawyer in discharging his duty shall at all times act freely, diligently and fearlessly in accordance with the wishes of his client and subject to the established rules, standards, and ethics of his profession without any inhibition or pressure from the authorities or the public."

85: "No lawyer shall suffer or be threatened with penal, civil, administrative, economic or other sanctions by reason of his having advised or assisted any client for having represented any client's cause." There were other documents from the International Bar Association which weren't included in that bundle, and it's from the International Bar Association International Code of Ethics of 1998, and Rule 6 states: "Lawyers shall maintain due respect towards the Court, lawyers shall without fear defend the interests of their clients and without regard to any unpleasant consequences to themselves or to any other person." In The Statement of General Principles for Ethics of Lawyers, also an IBA document, at number 2: "Lawyers shall treat the interests of their clients as paramount, subject always to their duties to the court and the interests of justice to observe the law and to maintain ethical standards."

At 4: "Lawyers shall not place themselves in a position in which their client's interests conflict with those of themselves, their partners, or another client." ³³²⁷⁶ And those additional matters arose from the International Bar Association materials of which I had possession. There are copies here. So what we say at this juncture is that there is an overwhelming current here of how lawyers are to perform and behave, and that is that they must follow the wishes of the client, be they assigned counsel or any other form of counsel, because when they are assigned counsel, they're not counsel of the Court, they are counsel to the individual accused and that is where their bond and loyalty lies.

There may be different arrangements that can be established for amicus curiae or a counsel of the Court to the Judges where this fiduciary relationship that exists between the accused and legal representation is not compromised, but the whole working and standards required of lawyers in our position is that we follow those codes and we do not commit acts that are in breach of the codes, because that is not the responsibility of the Judges, that is our responsibility for which we could be made liable to, in this instance, the Association of Defence Counsel within this building. They have a disciplinary committee.

There was a question yesterday from Judge Bonomy about the ADC. It was actually set up in consultation with the Judges of this building, and within these ethics there is, in fact, a requirement from the United Nations that within all organisations that counsel have an organised body on their behalf operating within the system. So within a state or a court like this, it is seen as important that Defence counsel have a collective body that is able to represent their interests, because they have dealings with the Registry or the executive and the Judges, and their positions ³³²⁷⁷ have to be considered and respected.

JUDGE BONOMY: It wasn't that I was questioning, Mr. Kay. It was the way in which that representation was made or attempted to be made that I questioned.

MR. KAY: I understand that the disciplinary committee of the ADC have in fact made a statement. I don't have it in my possession. I believe that is going to the Registrar on the issue, as they see their route being in that particular direction, but their disciplinary committee have reviewed the matter and have typed something that is being forwarded to him on the issue, and it may be that the Judges would like to see that. I'm also liable to my code back in England, the English Bar, where matters arise that are not covered by the ICTY Code of Conduct, which is why I refer you to the paragraphs of particular concern where a client has impugned the character of the counsel, where instructions have been withdrawn, and where there is conflict.

We took advice from the Bar -- from the general counsel of the Bar in the early days of this matter, who said that an assignment can take place, that you attempt to work within that assignment, but there may come a stage, which was the words of the QC who had been charged with this particular issue for whom the professional standards committee had given the task to consider the matter, his words were: "There come a stage when you are simply unable to further operate and things have gone too far either in how you operate or your relationship with the accused that require you to take that fateful step of having to withdraw." In our view, because we've referred this whole issue back to the ³³²⁷⁸ Bar Council Professional Conduct Committee in London and sought an advisory opinion, that is a matter which is of importance to us but should also be of importance to the Court.

Judge Kwon. I'm sorry I went on there.

JUDGE KWON: No, no problem. Mr. Kay, if you could make an observation on what the accused had said in the appeals hearing on 21st of October. I can't find the Registry number. It appears from the LiveNote page from line 24 of page 41. It is the -- he answered to the question from the President Meron what the best solution was.

MR. KAY: I remember. Yes.

JUDGE KWON: I quote. He said: "What is the best solution?" "The best and the only solution in my opinion is for you to give me back my rights." And then he referred to the so-called stand-by counsel. I quote again: "Your stand-by counsel is of no interest to me whatsoever. Mr. Kay is 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'm 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."

MR. KAY: End of the professional relationship but in a different position. And that goes to the core of it. In fact, the accused's response there has been pragmatic again, if we may observe that; that before there was no relationship and it didn't interfere where he stood in relation to the proceedings. It was entirely different. We did not have ³³²⁷⁹ a mandate from him, and we never said we did have a mandate from him. That was deliberately never part of the assignment. The trouble is now -- and that can work but it is that we have gone too far since -- since then, in our submission, for us in that role. We've moved a long way from there to here, and as a result of what has arisen and the conflict between us, we feel it's unprofessional, having been subject to the criticism, for us to continue acting in any way in relation to his interests. We would be very concerned about setting ourselves up in such a capacity. A new amicus would be able to handle the issues in the same way as the old amicus did and not have the particular stigma, if you like, that we feel from our position. The quotes I read earlier, Your Honour Judge Kwon was referring to the amicus situation, and on the -- I think it was the 3rd of September transcript we've looked at, and that particular role and whether that perhaps could be the means of progress and developing the situation. And that would have worked, but for us now, we've gone so far to find us -- ourselves in this position, subject to criticism, our professionalism impugned, that we don't find it right and honest to hold ourselves out in view of the state of the relations between us and him. And it would be something that we would -- that we find an anathema to the proceedings. We feel quite clearly, and it's our duty to say so, that we would follow the Code of Conduct. That's what should happen. But we do not feel that the state of relations between us and him can go back unless he hired us as counsel, unless he took us on. That's a different matter. That is a way of restoring, as Your Honour Judge Kwon referred to the -- I think it ³³²⁸⁰ was yesterday you mentioned, Could it be restored? And I said you'll have to ask him that. Of course, if he sought to hire my services, I would be available, as I would. There would be no problem or issue with that, because that would mean that he was giving me, validly, his position of trust. But what we have been through in the last eight weeks, we feel that it's too late to turn the clock back in relation to our position with him.

It may be on this ethical issue that - we sought advisory opinions, as the Court knows - that the Court consider appointing an amicus on this issue for an amicus brief on the ethical issue because of the scale of the issue, as His Honour Judge Robinson has rightfully pointed out. We're aware of the scale of this issue and what it means within the Tribunal. There are a large number of concerned Defence counsel who have made themselves known to us over what they've called our honesty in presenting this issue, and it's seen as being a distinct problem that we would recommend, the Court and us could identify a suitably eminent lawyer to provide an advisory amicus curiae brief on the issue.

Those are our submissions on the matter. I don't know if I can deal with any other issues.

JUDGE ROBINSON: No, Mr. Kay. Thank you very much. Mr. Milosevic, I would understand if you were to see yourself in a kind of splendid isolation from these issues and didn't wish to make any submissions, but if you wish to make submissions, you may do so.

THE ACCUSED: [Interpretation] Well, with regard to all these ³³²⁸¹ issues, I shall express myself very briefly. Namely, from the very outset, as you know, I have held one and the same position. I have not changed it, nor could I have confused anyone as to my position. It has always been my position that I'm representing myself. And I believe that this position of mine is in no way extravagant. On the contrary, it is based on the minimum of my guaranteed rights, on cogent norms of international law, imperative norms of jus cogens which are absolutely unquestionable.

As for this specific case, it is abundantly clear that Mr. Kay could not have had any doubts as to my position that I do not accept counsel. And in spite of that fact, knowing about this very emphatic position of mine, he, under pressure from you and contrary to his own code of ethics, accepted that role despite my emphatic position. Therefore, it is an issue of not only professional criticism but also criticism from the point of view of ethics. That is professionally unacceptable. Second, it is easier for me to quote from your order of 2nd November where you quoted the Appeals Chamber. In paragraph 2 you say: "At the very least, this regime must be based on the automatic assumption that whenever he is physically able to do so, Milosevic will assume the leading role in the presentation of his case, questioning of his witnesses, et cetera, making all the legal submissions that may be necessary, presenting closing argument, et cetera." As to the issue under discussion, it is obvious that you are trying to define a continued role of an assigned counsel, and I continue to oppose it. And you want this stand-by counsel to act when, God forbid, ³³²⁸² I fall ill and am unable to perform my duties representing myself. That is a way of pressuring me never to be ill.

And second, if you wish to entrust somebody else with the presentation of my case in those cases when I'm ill, I wish to remind you of the judgements of the European Court for Human Rights in Colozza versus Italy, from 1985, which reads: "The court reiterates that the right to an accused [In English] to participate in person in the trial is a fundamental element of a fair trial."

[Interpretation] Further on, the judgement says in paragraph 27: "[In English] Although this is not expressly mentioned in paragraph 1 of Article 6, the object and purpose of the article taken as a whole show that a person 'charged with a criminal offence' is entitled to take part in the hearing. Moreover, subparagraph (c), (d), and (e) of paragraph 3 guarantee to 'everyone charged with a criminal offence' the right 'to defend himself in person,' 'to examine or have examined witnesses...' and it is difficult to see -- and it is difficult to see how he could exercise these rights without being present."

[Interpretation] Furthermore, the judgement says: "[In English] An accused may waive the exercise of his right, but to do so his decision not to appear or not to defend himself must be established in an unequivocable manner."

[Interpretation] Thus I wish to say once again here for the record and for the information of the public I do not intend to renounce this right that I have. And in the event you take the decision that somebody else should represent me should I fall ill, you would again be violating ³³²⁸³ the imperative norms that you are not authorised to violate. I have understood that you, and especially Mr. Bonomy, have opinions as to somebody else being entitled to judge what my best interests are. I believe it is my exclusive right to decide on these interests.

I think, Mr. Bonomy, you mentioned yesterday, as did Mr. Nice, that your rules do not cover the eventuality of assigning counsel to a reluctant client, to a reluctant accused. I don't think this is accidental. They do not cover that rule because that would be contrary to all standards and norms of international law. Invoking the practice of some extreme cases of sexual offences where this right is taken away with a view to protecting the victim is completely inappropriate and completely irrelevant to what is going on here. I therefore believe that you should keep this in mind.

Also, Mr. Robinson, you mentioned that the accused, and then you quoted one of the Rules, has no right to destroy the trust between himself and his counsel. I should like to ask you, how can you destroy something that does not exist in the first place?

I refused counsel, invoking the minimum of rights guaranteed to me, and therefore, there could have been no trust between me and that counsel since we had never had any contact. And I don't think this observation can stand under any circumstances.

Therefore, in view of the decision that has been taken, I intend to call witnesses, question them, decide on their order, examine them. I believe I am able to do that. I expect you to refrain from exerting any ³³²⁸⁴ pressure on me outside what is normal and realistic, and I expect that I will be able to function quite normally in that situation. And referring to the quotation I made from the judgement of the European Court, I see absolutely no place for any assigned counsel.

And since you have given me this opportunity, I would like to say one more thing. Since it has been said here to make fundamental strategic decisions in presenting the case, et cetera, you quoted here the Appeals Chamber decision, I wish to tell you that on the 20th of February this year, so many months ago, I filed with the liaison officer the list of witnesses I insist for you to call. I titled it The List of Hostile Witnesses because I believe those witnesses to be hostile but I still wish to examine them here. And in my conviction, I have every right to do that and that right is very well grounded.

Since it's been a very long time since the 20th of February, and there has been a lot of communication since --

JUDGE ROBINSON: I have stopped you because that is not germane to the issue that we're discussing now, which is the application made by Mr. Kay. So confine your remarks to that issue.

THE ACCUSED: [Interpretation] Very well. Then I shall require that you give me an opportunity to make this request before we finish today's hearing, because it concerns preparation, procedural issues, and issues concerning my Defence.

JUDGE ROBINSON: Yes, Judge Bonomy.

JUDGE BONOMY: Mr. Milosevic, could you possibly clarify one thing for me. Are you saying that at no stage in the trial there has been any ³³²⁸⁵ sort of working relationship between you and Mr. Kay?

THE ACCUSED: [Interpretation] Of course there hasn't. I never met with Mr. Kay, unless you consider being in this same courtroom a meeting. But it's true when Mr. Kay says that sometimes during my cross-examination I sometimes refer to well-put questions by Mr. Kay or by Mr. Tapuskovic, who took turns examining witnesses after my cross-examination under your decision and with your leave. But I never gave any instructions to Mr. Kay, or to Mr. Tapuskovic, for that matter -- or, rather, let me correct myself. I did meet with Mr. Tapuskovic after he left his position and, as a courteous man, before departing, he came to see me in prison and to say good-bye. That is the only time I met with an amicus curiae. But that was a courtesy call. He had completed his term of office and came to see me before leaving for Belgrade. Otherwise, I never met with Mr. Kay or with Mr. Tapuskovic.

JUDGE BONOMY: Thank you.

JUDGE KWON: But your associates did meet, did have communications with Mr. Kay, did they not?

THE ACCUSED: [Interpretation] Everyone who is part of this process meets in that Defence room at one time or another, consult, talk. I do not wish to get into that. None of my associates ever had any instructions to meet with Mr. Kay, not even when Mr. Kay says -- and I didn't think it would be necessary to comment or correct him when he said that, but there was a part of his discussion when he said that he had received a list of witnesses that I had provided. He got it from the liaison officer, not from my associates. My associates and I communicated ³³²⁸⁶ with the liaison officer appointed by the Registry as a neutral organ. And I have told you here, when you asked me if I had any objections or something to that effect, I don't remember the exact question, I said that I absolutely don't mind Mr. Kay using something -- some material that I had provided to the liaison officer.

JUDGE ROBINSON: Thank you, Mr. Milosevic. Mr. Nice.

MR. NICE: Certainly this application has to be set in a broader context, because we have to plan, I suppose, for the future of the trial generally. That may mean taking stock of where we genuinely are. Before I come to that and with the recent observations of the accused in mind, perhaps a couple of things before I forget them. I rather agree with him about one thing, but he expresses differently from the way I would express it. He says you can't destroy something that never existed. That's the nature of his relationship with Mr. Kay. Mr. Kay went on for a long time using the word "client." I checked the easiest on-line dictionary I could find, and a client is a person who seeks the advice of a lawyer, though the accused has never sought the advice of Mr. Kay, so to this extent Mr. Kay and the accused are ad idem. There was never the relationship of client, and that is not what we're investigating in investigating Mr. Kay's right of successful application for exercise of discretion to be withdrawn from this case. Hearing the accused make his representations and bearing in mind just how far this Court has gone to assist him, others would say to indulge him, we do come to the question of who runs this Court, and I ³³²⁸⁷ suspect that resolution of this issue involving Mr. Kay will have that in mind. It may just be helpful to remember how far we've gone. Three amicus were assigned to help him, to make arguments when he disdained to do so. A pro se legal officer was provided, and he rather explains the position that she, the admirable Ms. Anoya, has filled, because again he disdains to cooperate with the Court, disdains to make formal applications, declines to communicate in the way of a reasonable human being. He's given an avenue to obtain that which he wishes which enables him to maintain his spurious independence of this process. He is engaged in this process, but he declines to do so in a proper way. Now, it may be, looking back and looking forward, that we've reached the time in these proceedings where as well as indulging the accused to the extent that is appropriate, or at least accommodating him, the time has come for the Court to be properly concerned about its authority, its apparent authority, maintaining its authority and dignity in light of and despite everything that is done by the accused to interfere with it.

And before I turn to the substance of my arguments with those general observations in mind, can we look to the future under the regime imposed by the Appeals Chamber and on the basis that Mr. Kay is not released from his present duties.

Your Honour Judge Bonomy raised one possible factual situation. Can I suggest two others? The most likely and the one to which the accused himself referred is that there comes a time when, because he has taken on far too much work, an unreasonable amount of work to defend ³³²⁸⁸ himself in a case of this scale given his health condition, he falls ill. Until that stage, he has produced witnesses, has withdrawn the signal to witnesses that witnesses should not attend, so there's been a flow of witnesses.

The Chamber is lulled into thinking that --

THE ACCUSED: [Interpretation] I have an objection.

JUDGE ROBINSON: Yes. I'm sorry. Mr. Nice, I'm not sure that we have any evidence that the accused has given a signal to witnesses not to attend, and I suspect that is what he's objecting to. So you might consider withdrawing that comment.

MR. NICE: Your Honour, well, I've referred to it on previous occasions, and I had in mind the question that was asked of the accused by His Honour Judge Bonomy in direct terms on an earlier hearing whether he wanted the witnesses to attend. He declined to gave a straight yes to a simple question and gave a coded answer that may easily have been relied upon by witnesses, and I made this quite clear in the Appeals Chamber, as guiding them that they should engage in the obstructive course of conduct that they collectively then pursued. So I don't withdraw that, and even if the particular positive concept engendered by the word "signal" may not reflect the more subtle and manipulative way the accused dealt with the problem, there's nothing to say that he wouldn't take a more positive line in the future.

And so one can envisage this circumstance: The trial proceeds, because the accused has got his own way, for a period of time satisfactorily, or apparently satisfactorily, and Mr. Kay doing whatever ³³²⁸⁹ is left for him to do. There then comes the need for Mr. Kay to fulfil a larger role. The accused, at the drop of a hat, because he has no interest in these proceedings other than the way they serve his interest, will stop the witnesses coming and we'll be back exactly where we are. Another alternative, and one that I've referred to before and have no problem with repeating, the accused has said to you - I haven't a complete note of what it was - but that he's going to call witnesses himself, and he's going to examine them himself. We have yet to see him do that. We have yet to see whether his approach to calling witnesses will satisfy the proper requirements of this Court that its dignity should be preserved. The Court will have in mind that I've asked the question: How can a court allow an accused representing himself to call or seek to call witnesses, in his terminology it may be, to tell this "illegal" Court what they know? So supposing his approach is unacceptable to the Court. He would then immediately interfere with the process in some way as to make it impossible for Mr. Kay to take over.

And a third possibility arising from the second, and indeed stimulated by -- my being stimulated to think of it by the very last points that the accused made. What are we going to do about the witnesses who he wants to have called but thinks that you should call or arrange to call for him to be cross-examined? Is he going to demand some special regime? Will he then ask for Mr. Kay to be involved to get perhaps witnesses who would decline to come for the accused personally but might come if they were going to be approached in a more polite way by retained counsel? ³³²⁹⁰ These are all a number of problems that are going to arise in the future, or may arise, and we should have them in mind now in deciding what's the best way, in our respectful submission, to move forward. Our conclusions will be that there is absolutely no ground in law whereby the Court is obliged to grant Mr. Kay's application. The application may be refused. There may be practical, pragmatic reasons for taking a different course. That will be entirely for the Chamber. I may have something to say about them a little later. The letter Mr. Kay sent was unfortunate both as to its content and more particularly as to its date. On examination, it is absolutely clear that there is nothing in that letter that was not available before the Appeals Chamber's decision -- I beg your pardon, before the Appeals Chamber's hearing. We can now only contemplate how things may or may not have been different had that letter been sent in advance of the hearing or delayed until after the delivery of the decision. What is clear, as raised as a possibility by His Honour Judge Bonomy, is that the only additional factor beyond what was already available to Mr. Kay and Ms. Higgins before the Appeals Chamber hearing is the public criticism and other complaints made against them. Their professionalism has been impugned, he says. He does not want to stand here if the accused thinks he is unprofessional. So what? Criticism - and I've been sitting here beside the Prosecutor for most of this hearing - criticism, public criticism goes with the jobs we do. She, and even I, and the Judges, including the late Judge May, have all been subject to criticism. That doesn't stop us doing ³³²⁹¹ our work.

As to complaints, I reminded myself, I'd almost forgotten about it, that the Prosecutor and I and various other members of the team were once the subject of charges to Serbia alleging we were trying to do damage to or possibly kill, I can't remember, the accused. It didn't worry us, didn't stop us, because we're working within this legal framework and we identify our duties and we respond to those.

Cases like this are not opportunities to have favourable publicity. Indeed, one should probably simply forget all about publicity for it doesn't do you any good one way or another. And on examination, it seems to us, if we may respectfully so say, that Mr. Kay and Ms. Higgins are attempting now to undo a contract into which they entered fully aware of all the potential problems they would face for, and I don't think I need go to chapter and verse on this very much, the original order of the Trial Chamber, all the filings of the Prosecution, the response of the then-amici and their model proposal, make it absolutely plain that complete non-cooperation of the accused was what had to be dealt with in the assignment of counsel. And it was with that knowledge that they entered into the agreement with the Registrar that they did, and unless I see a document going to show the contrary, it was in no sense a contingent contract that said if and providing only that the accused cooperates, we will do this, that, or the other thing. And it is a contract that they cannot now undo in the sense of restoring the parties to the position they were formerly in, and for at least three reasons. First, because they have made publicly damning ³³²⁹² assertions about the ability of any counsel to appear in the role they voluntarily occupy, thus diminishing or extinguishing the pool of counsel who would otherwise have been prepared to accept the charge they undertook.

Second, they have successfully appealed from the original position determined by this Chamber in favour of the position that they wanted. And third, they've called witnesses.

One is, I'm afraid, reminded -- I beg your pardon. Let me go back one.

Things would have been different or could have been different had the application to withdraw been done quietly and privately. Had they said, "We're very sorry, but in the circumstances, we just don't feel we're up to this job. We can't do it." That didn't happen. And one is inevitably reminded of Aesop's fabled dog in the manger. The order of the Court, and we've looked at it but it's probably worth reminding ourselves of it, made it absolutely plain that assigned counsel were not entering into the relationship of client and lawyer with the accused. On this I agree with the accused. They were being required to represent him independently of what he might want, providing only, of course, that they did everything they could, and I'm sure they did, to obtain from him by communication instructions of one kind -- one thing or another.

Let's just remind ourselves of the order. "To represent the accused by preparing and examining those witnesses Court assigned counsel deem it appropriate to call; to make all submissions on fact and law that ³³²⁹³ they deem it appropriate to make; to seek from the Trial Chamber such orders as they consider necessary to enable them to present the accused's case properly, including the issuance of subpoenas; to discuss with the accused the conduct of the case; to endeavour to obtain his instructions thereon, and to take account views expressed by the accused while retaining the right to determine what course to follow." Mr. Kay has referred to the absence of consultation. Using the word "consultation," the reality is that Mr. Kay has consulted. I'm sure he has, because he's gone and he's tried to speak to the accused. And it's the unilateral act of the accused in not consulting that has led to the problem. I'm sure they have attempted to discuss with the accused the conduct of the case. They have endeavoured to obtain his instructions and to take account of his views.

The order goes on, "to act throughout in the best interests of the accused." What does that mean? The best interests of the accused in a forensic setting are the best interests of the accused judged from a forensic point of view. They are not his best publicity interests. They are not his best propaganda interests. And it is perfectly possible for counsel, if they find themselves again in the driving seat because of the ill health of this accused, to calculate what his best interests are forensically. It may well be that in the conduct of his case the accused hasn't been pursuing his forensic best interests, but Mr. Kay and Ms. Higgins would have no trouble in identifying. Indeed, it's worth reminding ourselves that in his long speeches to this Tribunal - I'll just find the passage - the accused has actually, ³³²⁹⁴ somewhat surprisingly, been quite careful to articulate what his forensic or legal Defence is. I'll see if I can find the relevant piece of paper. For within the passages of rhetoric that have nothing to do with the real subject matter of this case, one can find neatly encapsulated what his Defence is.

And I'm reading from his latest speech, the one given at the beginning of his Defence. So that, for example, he says this: "The Serb side had three objectives that can be seen when the entire political situation is analysed. The first one was to preserve the Yugoslav Federation, and then if it is possible to obtain that objective, to attain their own right to self-determination like the right enjoyed by other peoples in Yugoslavia. So in the case that objective is impossible too, then finding ways and means through negotiations to ensure an equitable position for Serbs in Bosnia-Herzegovina."

Later on he said of Kosovo: "When speaking of Kosovo, there is not a single shred of evidence that any crime was committed. Not only on anyone's orders, but also with any kind of previous knowledge of the generals in command. Not a single one of them had any knowledge." Later on still, he goes on to explain at length his Defence that crimes, if and when they were committed, were subject to sanction. And there are other passages in his speeches which would constitute perfectly adequate instructions to assigned counsel to know what to look for and what to present if they found themselves back in the driving seat. But, and I return to the order of this Court, item 2 of the order said: "The accused may, with the leave of the Trial Chamber, continue to ³³²⁹⁵ participate actively in the conduct of his case, including, where appropriate, examining witnesses following examination by Court assigned counsel." That one phrase has been reversed, and then the accused has the right to make a reasonable request to the Trial Chamber to consider allowing him to appoint counsel.

That order, which of course existed before Mr. Kay and Ms. Higgins agreed to take the role of counsel described as assigned, makes it clear that in real and practical terms, they were the servants of the Court, although their duty was to identify the best interests of the accused and to represent them. And that is by no means a unique position for lawyers, common in civil system jurisdictions, known now in common law systems in particular with sexual offender crimes -- sexual offender cases. I was asked, I think, in the Appeals Chamber, when we were still contemplating the previous regime before the reversal of the order of questioning, at a time when, for reasons that I've already touched on, all witnesses were refusing to come, what would happen if there wasn't a change? My answer, I can't take you immediately to the passage of the transcript, was that Mr. Kay and Ms. Higgins would do their best. They would call what witnesses they could, and if there were almost none or no witnesses, this would plainly have been at the engineering or as a result of the non-cooperation of the accused, and he would have only himself to blame.

The position that Mr. Kay and Ms. Higgins now face if they are not allowed to withdraw from this case is that there may come times when they will be required to conduct the case in an active way. If at that stage ³³²⁹⁶ because some obstruction is placed by witnesses or others and in their doing more than their best, they will do their best, and they will never be capable of being criticised for that.

Criminal cases are complete, potentially, at the end of the Prosecution case. There is no need to have Defence evidence if by whatever means an accused either makes that impossible or chooses not to have any.

The law. Blagojevic has already been summarised by His Honour Judge Bonomy. In the Appeals Chamber, the paragraphs upon which we would particularly rely include, at the foot of paragraph 27, we're dealing with the factual circumstances of Blagojevic itself -- perhaps I should actually read the whole of the paragraph although I'm conscious of the time already taken. Paragraph 27:

"The Appeals Chamber rejects the argument of the Appellant that the record showing the many hours counsel has spent with the Appellant at the Detention Unit 'does not disclose anything about what was discussed' or 'disclose whether Mr. Blagojevic was given any opportunity to really cooperate with and influence Mr. Karnavas about how to proceed.' The Appellant had made no complaints, prior to his being notified that the Registrar would not consent to a withdrawal of co-counsel, about the work of his counsel, and the reliance by the Trial Chamber upon those records as showing that the parties were working as a team on the Appellant's Defence --"

THE INTERPRETER: Slow down, please, when reading. Please slow down. ³³²⁹⁷

JUDGE KWON: Mr. Nice, you are being asked to slow down.

MR. NICE: I'm very sorry. I thought I'd slowed down but it's difficult to get the speed right when reading. I'll put on the headphones so that I can be shouted at more conveniently.

"The Appeals Chamber rejects the argument of the Appellant that his 'subjective' views about his -- how his trial should proceed may override the professional obligation of counsel to act in the best interests of the Appellant. Counsel has an obligation to consult with the Appellant, but he is not bound by the Appellant's view as to what are the best means to achieve the objects of the Appellant's defence." And if assigned counsel in this case find themselves back in the driving seat, that principle of law from the Appeals Chamber of this Court applies with full force.

Paragraph 31: "The Appeals Chamber rejects the assertion of the Appellant that the Trial Chamber gave insufficient weight to the allegation of the Appellant that he had had no contact with his Defence team since..." a particular date. "The Trial Chamber considered the circumstances surrounding the alleged breakdown in communication and found that the breakdown was a result of the Appellant's refusal to communicate with counsel and that counsel was still maintaining his professional obligations to the Appellant. Indeed, the Appellant does not challenge this finding. The Appeals Chamber agrees with the Trial Chamber's finding that the breakdown in communication was the result of the actions of the Appellant and that this action was undertaken by the Appellant 'solely to use as a ground to have counsel replaced.' The Appeals Chamber further ³³²⁹⁸ agrees with the Trial Chamber that such an action as a form of protest is impermissible."

May I return us from the very particular and distorted feel that this trial sometimes has because of the extent to which this accused has already been accommodated to the position we should have been in between the order of the Trial Chamber and the decision of the Appeals Chamber. We were in the position where an order made by the Trial Chamber, the original order, was of effect and should have been respected by everyone, including this accused. Therefore, he was if not under any binding legal duty actively to cooperate with Mr. Kay, he was certainly under a duty to this lawful Court not to obstruct him. The Court will decide from the record whether, in fact, he did, and it may conclude that what he did, leading to Mr. Kay and Ms. Higgins' current feelings of distress and anxiety, was as impermissible and as carefully calculated as that which is referred to in paragraph 31 of the Blagojevic Appeals Chamber decision. I move on to paragraph 50: "The Appeals Chamber rejects the assertion of the Appellant that the Trial Chamber erred in accepting the submission of the Registrar 'that any lack of confidence or trust that [the Appellant] may have had in his counsel could never be regarded as more important than the harm done to his fair trial...' "In the impugned decision, the Trial Chamber referred to this submission made by the Registrar but did not base its decision upon it. The decision of the Registrar to refuse the Appellant's request that new counsel be assigned and the Trial Chamber's confirmation of that decision, were based on the fact that neither found that there was any 'objective' ³³²⁹⁹ basis for the Appellant's request that he be assigned new counsel. As there was no basis for the counsel to be withdrawn, an unnecessary replacement of counsel would infringe upon the right of the Appellant to be defended by counsel thoroughly familiar with the case against him and who had already dedicated many hundreds of hours to his defence. The Trial Chamber therefore held that the retention of the Appellant's assigned counsel would not only protect his right to be tried fairly but also his right to be tried expeditiously."

In this case, and unless the accused is entirely recovered or unless the accused's health was not -- ill health was not what it seems, it is almost inevitable that there will come periods of time, especially if the accused seeks to prepare all the witnesses himself, when further disruption of a scale requiring the employment of assigned counsel will arise. Everything that was said in that paragraph, paragraph 50 of Blagojevic, which is matters of principle not related to that fact, would apply with full force here.

And finally from Blagojevic, paragraph -- well, the end of paragraph 51 but on the following page, page 24, their endorsement of the Trial Chamber's observation in quotation marks -- this is the Trial Chamber speaking: "'An accused does not have the right unilaterally to destroy the trust between himself and his counsel. Similarly, an accused does not have the right to claim a breakdown in communication through unilateral actions, included refusals to meet with or receive documents from his counsel, in the hope that such actions will result in the withdrawal of his counsel by the Registrar.'" ³³³⁰⁰ And one can see various parallels between the facts set out there and the facts of this case.

JUDGE ROBINSON: Mr. Nice, we're coming to the time for the adjournment.

MR. NICE: On the law I shall take you very briefly to one passage in -- in Barayagwiza, and then I shall be done with the law but I have some further observations to make of a practical nature.

JUDGE ROBINSON: Also, would you attend to the submissions made on the codes, the submissions that --

MR. NICE: I shall certainly deal with that.

JUDGE ROBINSON: The submissions on the inconsistency with the codes.

MR. NICE: I will deal with that.

JUDGE ROBINSON: We're adjourned for 20 minutes.

--- Recess taken at 12.24 p.m.

--- On resuming at 12.55 p.m.

JUDGE ROBINSON: Yes, Mr. Nice.

MR. NICE: Before I turn to the next case, there's one more passage in Blagojevic that perhaps I ought to refer to. Reminding the Court, given that my learned friend Mr. Kay says it's not relevant, that Blagojevic was indeed itself an application for withdrawal of counsel under Article 19 of the directive. So it's absolutely on point. And it's paragraph 53 of the decision, which deals with the terms for termination or request of withdrawal of representation. "Under Article 9(B) of the Code of Professional Conduct," which it sets out, ³³³⁰¹ saying that "such termination or withdrawal can be accomplished if, without material adverse effects on the interests of the client or if," and then there are four subparagraphs. (i) we can disregard; (ii): "The client insists on pursuing an objective that counsel considers repugnant or imprudent; (iii) the client fails to substantially fulfil an obligation to counsel regarding counsel's services and has been given reasonable warning that counsel will terminate or request withdrawal of his representation unless the obligation is fulfilled; or (iv) other good cause for termination or withdrawal exist."

And at paragraph 54, the Appeals Chamber went on to hold this: "In circumstances such as this where an Appellant unjustifiably resists legal representation from assigned counsel, counsel's professional obligations to continue to represent the accused remain." Well, all the factual circumstances envisaged for the purposes of this discussion, either from the Bench or from me, would leave assigned counsel, if retained, in the position exactly summarised in paragraph 54, because the appellant would effectively be unjustifiably resisting, as he does, explicitly, legal representation, but that would not and does not free assigned counsel from carrying on with his or her duties. The Barayagwiza case from the ICTR, with which you will be familiar, concerned an accused who refused to attend court, and the question was whether that and his instructions to counsel justified their withdrawing. And the answer, no, it didn't. And at paragraph 24 of the judgement of the Trial Chamber, there's this matter succinctly expressed: "In the present case, Mr. Barayagwiza is actually boycotting the United ³³³⁰² Nations Tribunal. He has chosen both to be absent in the trial and to give no instructions as to how his legal representation should proceed in the trial or as to the specifics of his strategy. In such a situation, his lawyers cannot simply abide by his 'instruction' not to defend him. Such instructions, in the opinion of the Chamber, should rather be seen as an attempt to obstruct judicial proceedings, and in such a situation it cannot reasonably be argued that counsel is under an obligation to follow them and that not to do so would constitute grounds for withdrawal." And the applicability of that persuasive authority is all too clear for the facts of this case, particularly given Mr. Kay's expressed understanding of the scope of his duty now that the order of questioning has been reversed. And I --

JUDGE ROBINSON: Before you continue, Barayagwiza that you just quoted from was the Trial Chamber's --

MR. NICE: Yes, it was.

JUDGE ROBINSON: It went to the Appeals Chamber, didn't it?

MR. NICE: I think so, yes.

JUDGE ROBINSON: I just wonder whether that part of it was affirmed by the Appeals Chamber.

MR. NICE: We'll check. We'll try and check. But I'm particularly struck by my learned friend Mr. Kay's understanding of the scope of his responsibilities as assigned counsel given the reversal of the order of questioning witnesses, for he was express in his explanation that he would only advance a question if instructed to do so. Well -- or in the absence of contrary instructions. ³³³⁰³ I see that my summary may not be perceived as specifically accurate, but certainly it was that he did not regard himself as having free rein to exercise his own judgement and that his first port of call would be the instructions of the accused. And I hope that perhaps satisfies His Honour Judge Bonomy's concern that I hadn't correctly reflected what Mr. Kay had said.

MR. KAY: Just on the matter rising, Barayagwiza didn't go to the Appeals Chamber, and the issue was whether, before the Trial Chamber, he'd given sufficiently clear instructions for his counsel to withdraw. He subsequently did. They withdrew. A new assigned counsel came in, and he didn't appeal his position. We have someone on our -- Ms. Higgins was in the related case of these defendants, the media trial at the ICTR.

JUDGE ROBINSON: Thank you, Mr. Kay.

MR. NICE: I'm grateful for being reminded of that. This particular -- this particular part of the trial and the ruling to which it relates was before the time when there had been explicit instructions given by the accused for the withdrawal of his counsel. Now, Your Honours, we were given that bundle of codes of conduct only a couple of days ago, and our ability to explore them and all associated issues --

JUDGE BONOMY: Just before you go on to that, Mr. Nice, there's really nothing unreasonable about the response that Mr. Kay gave that the first port of call would be the accused, and he gave it in the context that he would advise him of the view he had formed about his failure and give him an opportunity to give instructions. That's a perfectly ³³³⁰⁴ reasonable, and is indeed consistent, absolutely consistent with the terms of the modalities order.

MR. NICE: Absolutely right that he should go there as a first port of call. But if, as is pretty obvious if not completely clear from everything that the accused has explained, that he would be given no instructions, then he has to exercise his own judgement, or alternatively, he would not be fulfilling the function required of him. And there's been nothing that the accused has said, one way or another, to suggest that when he falls ill or is otherwise by reason of some rule of the Court unable to conduct the case personally that he will then instruct Mr. Kay or anybody else.

When we look at the Codes of Conduct -- I say we. We haven't had a chance to go into them exhaustively. But in any event, they can probably be dealt with satisfactorily in fairly general terms. The concerns that Mr. Kay expresses are that there is a conflict of interest and that there's a breakdown of communication and that he has no instructions. The first point is that the codes, whether of this court or of the Bar Council of England and Wales or of the appropriate body in Scotland do not cover this circumstance, as His Honour Judge Bonomy, I think, made clear.

The second point is that conflict of interest is not really what we're concerned with here at all. Conflict of interest is usually independent of the person you're representing, and it's where your duties to the person you are representing are in conflict with some other interest of your own. And so on analysis, it comes down to concern that ³³³⁰⁵ there's a breakdown in relationships with somebody who Mr. Kay described as his client that troubles him and that he has no instructions, but as we've already seen in my earlier observations and as the accused himself confirms, there is no relationship of client and lawyer here, therefore, the notion of "breakdown," as the accused himself said, is irrelevant. Likewise, there's no reason to expect instructions coming from the accused and the order of the Trial Chamber was fashioned in the expectation that that was either probable or very probable, or I suppose certain. So that the codes really do not apply unless there can be extracted from them some more general overarching principle in breach of which Mr. Kay and Ms. Higgins find themselves by virtue of accepting the role of assigned counsel and as a result of something that has happened since. And the answer to that is that nothing that has happened since has been identified in clear terms and something that has placed them in breach of some overarching principle and indeed the overarching principles have not really been identified in a way that bites on this case. Within the bundle of authorities it may be worth looking at number 4 very briefly, the Code of Conduct for Lawyers of the European Union. I'm afraid I don't have the registry page numbers, but I hope this isn't a problem. It's page 5 at the foot, the preamble, which sets out that: "A lawyer's function lays on him a variety of legal and moral obligations (sometimes appearing to be in conflict with each other) towards: The client; the courts and other authorities before whom the lawyer pleads his client's cause or acts on his behalf --" and then skipping the next bullet point, "the public for whom the existence of a free and independent ³³³⁰⁶ profession, bound together by respect for rules made by the profession itself, is an essential means of safeguarding human rights in face of the power of the state and other interests in society." So that that is a somewhat broad function.

We go to page 8, the numbering at the foot, 2.4: "Respect for Rules of Other Bars and Law Societies.

"Under the laws of the European Union and the European Economic Area a lawyer from another Member State may be bound to comply with the rules of the Bar or Law Society of the Host Member State. Lawyers have a duty to inform themselves as to the rules which will affect them in the performance of any particular activity."

Now, that's worth having in mind that all that has been relied on today was known by -- as to its potential, was known by Mr. Kay before he ever undertook this assignment, and therefore adressing themselves to the relevant codes of conduct to which they have referred today, they ought to have been in a position there and then to take the decision that they could not act and thus to have freed the Chamber to make alternative arrangements. And it is, it may be, the severe restrictions on the Chamber's freedom of manoeuvre today that will be one of the most powerful reasons for retaining Mr. Kay and Ms. Higgins if they decide that that is the course to take.

At page 9, 2.7 --

JUDGE ROBINSON: Mr. Nice, that pragmatism by itself would not be a sufficient basis to retain Mr. Kay, would it? The fact that the Chamber has -- may have little room within which to manoeuvre. ³³³⁰⁷

MR. NICE: I'm not sure that pragmatism is necessarily the only way to describe it, nor am I sure that it's irrelevant. The onfolding history of this case is to be set aside, beside the duties of the Chamber to provide a fair and public trial for the accused, which we all accept is a prime responsibility. The second interest to which I've referred today, the authority and dignity of the Court, and as part of the first, sometimes expressed separately, sometimes as part of the first, is the need to present or to conclude the trial in a timely way. If the position is that, contrary to their expressed preferences or desires, these assigned counsel can be required to remain in the case whereas any other assigned counsel, if one or more were decided to be essential, there would be consequences for the time the case would take, and that practical and real consideration could affect the Court's decision. So to that extent I differ from Your Honour's observation.

JUDGE ROBINSON: Thank you.

MR. NICE: And we may find, if I can find the relevant part of the relevant code, that one these codes, or one of the relevant codes to which we may be referring, requires counsel to act immediately on recognising a problem and not to delay it, but I'll come to that if I can dig it out.

I'm told by Ms. Graham that the page numberings I've been giving you for this are wrong. Can I simply take you to paragraph 2.7 of this registry page 39043, as follows: "The Client's Interest. Subject to due observance of all rules of law and professional conduct, a lawyer must always act in the best interests of his client and must put those ³³³⁰⁸ interests before his own interests or those of fellow members of the legal profession."

For the reasons already advanced, there is no difficulty in Mr. Kay advancing the best interests of the person described as a client but who in truth never has been.

Number 3 on the same page, "Relations With Clients. Acceptance and Termination of Instructions. A lawyer shall not handle a case for a party except on his instructions. He may, however, act in a case in which he has been instructed by another lawyer who himself acts for the party or where the case has been assigned to him by a competent body." At first sight, that would appear to encompass the position of civil system jurisdictions where assignment of counsel is appropriate. It may be, in fact, it's in this very set of rules that we come to the point about immediate withdrawal. At the foot of this page, 3.2, conflict of interest -- no, I don't think -- I don't think that really helps us very much particularly.

Your Honour, I'm advised this morning by those familiar with the system in the former Yugoslavia and in Bosnia-Herzegovina that the laws regulating the lawyers' profession do not mention cooperation -- non-cooperation of the accused as a valid reason to withdraw when they are assigned. And as one of Your Honours mentioned at the beginning of this hearing today or yesterday, assignment in the case -- in any case of the kind being dealt with here would happen automatically. I'm further advised that it is in the FRY law that any conflict of interest that requires Defence counsel to withdraw are stipulated in the ³³³⁰⁹ law, and the accused is not mentioned under the heading of "Conflict of Interest."

I'm also told, and I think I mentioned this in the earlier hearing on this very topic but maybe it was in the Appeals Chamber - I think it was in front of this Chamber - that non-cooperation in the former Yugoslavia doesn't happen. It's a different culture. And with the civil system and the imposition of counsel, non-cooperation doesn't happen in practice, thus there is no need to have it reflected in their codes of conduct.

We have been able to investigate some parts of the German code as one of the civil codes which may be of value, but I don't have the documents immediately to hand.

In Germany, as I understand it and have been advised, an accused has no right to a certain mandatory counsel when one is imposed. And the presiding Judge of a German court will only replace an assigned or imposed counsel where there are concrete facts demonstrating the breakdown of a trustful relationship and where the orderly and expeditious administration of justice is not harmed by such a step.

As to the other codes we looked at, they are all effectively premised on the consensual relationship of client and lawyer, and unless I've missed one to which I should pay particular attention, therefore are not appropriate to the facts of this case.

And I repeat, had they been appropriate, should and would have driven Mr. Kay and Ms. Higgins to decline to take on this brief when they were asked so to do. ³³³¹⁰ A few more points in order to finish comparatively soon. The accused's position in law under the effective order of the Appeals Chamber. There was a discussion yesterday, I think stimulated by His Honour Judge Robinson, premised on the accused now being allowed to prepare all his witnesses. In fact, the order does not expressly say that on analysis. It doesn't cover the preparation of witnesses. I don't know if the Court would like to look at that before moving on. It can be found at the end of the judgement under the disposition, pages 15 and 16. And it says in paragraph 19 of the decision, line 5: "At a minimum, this regime must be rooted in the default presumption that, when he is physically capable of doing so, Milosevic will take the lead in presenting his case - choosing which witnesses to present, questioning those witnesses before Assigned Counsel has an opportunity to do so, arguing any proper motions he desires to present to the Court, giving a closing statement when the Defence rests, and making the basic strategic decisions about the presentation of his Defence. But this presumption is just that: a presumption. Under the current circumstances where Milosevic is sufficiently well to present a vigorous, two-day opening statement, it was an abuse of discretion to curtail his participation in the trial so dramatically on the grounds of poor health. The Appeals Chamber can hardly anticipate, however, the myriad health-related difficulties that may arise in the future, or use this occasion to calibrate an appropriate set of responses to every possible eventuality. It is therefore left to the wise discretion of the Trial Chamber to steer a careful course between allowing Milosevic to exercise ³³³¹¹ his fundamental right of self-representation and safeguarding the Tribunal's basic interest in a reasonably expeditious resolution of the cases before it."

I don't think I need read beyond that save to say that it repeated at paragraph 21 that the Trial Chamber may grant orders to enhance the proceedings as and where necessary.

It may be that the Appeals Chamber did not deal with the question of preparation of witnesses because of some of the things that the accused himself said to the Appeals Chamber about what he understood to be his entitlements, and that's why I agree, we must look at this issue in a broader context, as both Mr. Kay and the accused, by implication, are saying. For the accused was very carefully reserving his position to drive the Chamber to work him no more than three days a week in all. I'm afraid I don't have -- I have the page numbering of the transcript, it doesn't have the full page numbers. It's page 27 of the transcript. No, not page 27. It's a later passage. Page 40 of the transcript as I have it, he said this: "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 preparation 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 time is very short. At the time, you said you would review all of these things. There has been no subsequent review of these issues."

Ms. Graham tells me that the page numbers are correct. I was ³³³¹² expecting much higher page numbering but forgetting that the Appeals Chamber starts at 1.

On page 41, line 6, he said: "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."

At the foot of page 47 --

JUDGE KWON: If you could give me the date of the appeals hearing.

MR. NICE: 21st of October.

JUDGE KWON: Okay.

MR. NICE: And on page 47 at the foot, line 21: "This 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."

He then referred, on page 49, to something that I had said, saying that, "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 three days a week. At page 51 he referred to being allowed to receive witnesses during the summer vacation on the basis of three days a week. And at page 52 he said this, line 7: "I believe that we can keep up the dynamics of three workdays per week with the proviso that weeks off should be taken ³³³¹³ occasionally so that I can proof witnesses I intend to call. And that would be a perfectly reasonable timetable enabling us to conduct these proceed information a perfectly normal manner..."

JUDGE ROBINSON: Mr. Nice, I've heard the submission that you've made, but I do believe it's open to question, the interpretation you have put on paragraph 19 of the Appeals Chamber's ruling. I would not conclude that the mere omission of a reference to the accused's right to proof witnesses means that the Appeals Chamber did not intend to include it as one of the modalities.

If you look at paragraph 20, it says that the: "The Appeals Chamber stresses the following point: in practice, if all goes well, the trial should continue much as it did when Milosevic was healthy." And I would take that to mean that all the facets of preparation and presenting his case are returned to him.

MR. NICE: I've obviously contemplated this and wondered whether it was omission or not. The following sentence, of course with my emphasis applied to one word, may lead to a contrary conclusion. The emphasis is on the word "lay." "To a lay observer who will see Milosevic playing the principal courtroom role at the hearings, the difference may well be imperceptible."

But one way or another, and of course if the Chamber concludes that it should err in favour of the accused in interpretation of something that may be incomplete in its expression of what it intended --

JUDGE ROBINSON: Mr. Nice, I'm told that we have to finish --

THE INTERPRETER: Microphone, please. ³³³¹⁴

JUDGE ROBINSON: I'm told we have to conclude at a quarter to.

MR. NICE: I shall be done. One way or another, the Chamber is going to have to grapple, or may have to grapple with a timetable that the accused may tell us now or when it suits him should only be three days a week all in, requiring you to sit as little as one and a half days a week or a day a week. This is something, you see, that the Appeals Chamber did explore, and got very unsatisfactory answers from the accused, and from Mr. Kay a concession that they might have to go down to two and a half days a week or something like that.

Now, I mention that because in fashioning the regime for the rest of the case, if assigned counsel is retained but in the position of number two rather than number one, then assigned counsel is available, of course, or could be available to prepare the witnesses and thus to maximise the amount of time that could be available for the accused in court. The problem with this is that this would require, it appears, or might require, the cooperation of the accused. We have no idea if it's forthcoming.

JUDGE ROBINSON: What would be the utility of assigned counsel preparing the witnesses if the witnesses are to be examined by the accused?

MR. NICE: If the accused declines to explain at all what areas of fact or expertise he wants the witnesses to be proofed on, then nothing can be done. That would be his choice. We're coming back to the fact that this accused is trying to control these proceedings by being obdurate ³³³¹⁵ in every way. And we come back to the reality that it was unreality for him to try and conduct a case of this scale on his own without assistance and that he is using that position to have his own way. We're looking specifically at what the assigned counsel may do - at least I am - as I look at what the accused's legal position is. The Chamber's heard what he said about the timetable. It's seen what was said specifically by the Appeals Chamber. And although I quite understand the inquiry was missed out by oversight, but I would respectfully invite the Court just to have in mind or to remind itself of the passages in the transcript where the timetable was gone into at some length before finally deciding on what interpretation to place on that paragraph. Where is the Chamber going to go next? What are the options available to it?

Mr. Kay, in his submissions, has repeatedly really suggested that all authority, in a way, has to be given to the accused to determine what happens. I have in mind how he explained that the accused had not obstructed the first five witnesses but how their task was impossible. Respectfully suggest that it's nothing like impossible to perform if they are honourable and respond honourably to the rulings of the Court. I observed what Mr. Kay said to the Chamber about your making him going first and that being a shock to them because you'd reversed what he'd proposed. In courts, it is for the lawyers and all other parties, including the accused, to respond to and respect the legitimate decisions of courts that are made.

And at the end of Mr. Kay's submissions, it appeared that if and ³³³¹⁶ whenever the accused did something that would obstruct the conduct of the case or would be reflected in the complete absence of a harmonious relationship with Mr. Kay, there was nothing that anyone could do except really hand control back to the accused, and that simply can't be right. How to resolve the problem. As I said at the beginning, it's our submission that there is nothing in law that will oblige this Chamber to release Mr. Kay and Ms. Higgins from their obligations. Of course no one wants to see someone doing something he or she doesn't wish to do, and that expression of wish may itself weigh and weigh significantly with the Chamber. But the Chamber has to decide, in our respectful submission, whether there is a further useful function that assigned counsel can do, either now or at some time in the future if things unfold as they're expected to do.

As to now, they could ask supplementary questions of witnesses called by -- well, first of all they could be engaged in the preparation of the witnesses if the accused was prepared to cooperate and be realistic, and that would be a useful function for them to do, and it would be one that could be conducted out of court and would free them from the risk of further public criticism of the kind that they find uncomfortable.

I can see no real reason for them now to add to the time taken in these proceedings by asking questions when the accused is in the driving seat and has no need of further questions to be asked, and indeed when the accused has shown himself quite capable of dealing with the forensic process in this court. ³³³¹⁷ They could be of value to the Court if and when, for one reason or another, the accused is unable or not permitted to lead evidence himself. The problems then arise either, one, will he take some action of non-cooperation or obstruction that will render it impossible for Mr. Kay to do his job because of the ethical concerns he has had and has expressed, because frankly, if that's the position in which we're going to find ourselves, it's hard to see the value and utility of counsel. Is there a function that they can perform in advancing legal argument? We know that we have Professor McCormack to deal with detailed questions of law, and that to date the accused has been pleased to make it clear that he will never make a procedural application. There comes a time when it is appropriate to ask of a man of his intelligence and understanding of the system why he should be given this additional benefit beyond that of anyone else who would choose to represent themselves of being -- of having applications made for him.

For example, were you to impose a new, different, and specific regime on the conduct of the case that he expressed some dissatisfaction with, why should he not, like everyone else, make his application for leave to appeal, if he wants to appeal, and otherwise live with the order you make? Why should he be nursed when he has taken the attitude to this Court that he has by someone in Mr. Kay or Ms. Higgins' position? They, of course, always having to go through the difficult position -- exercise of deciding whether they are serving his best interests, whether they are reflecting his desires, and so on, when he won't communicate with them.

JUDGE BONOMY: Well, the result of that action speaks for itself, ³³³¹⁸ Mr. Nice. You can hardly criticise counsel appointed by the Court who takes an appeal and is successful in that appeal who plainly observed the best interest of his client quite properly.

MR. NICE: He did on that occasion, I accept. But the point remains, Your Honour, how far should a court go with an accused who has behaved in the way that this accused has in doing what he is actually quite capable of doing himself. So that's --

JUDGE BONOMY: At the moment you're not really addressing the problem that may arise, which is a problem with health. That's the situation that this is all in place to deal with. And are you suggesting that there is no useful purpose in that regard in retaining the services of Mr. Kay and Ms. Higgins?

MR. NICE: In our submission, and as the order originally was to operate, whichever order of calling witnesses obtains, there can indeed be a useful function for counsel, for assigned counsel, in conducting a case when the accused, by reason of ill health, is not able to do it himself. Counsel then has to possibly call witnesses, depending on the period of incapacity, prepare witnesses, and call them. I say summon witnesses, prepare them, and call them.

My concern is what has been said today about really insuperable difficulties that Mr. Kay regards as blocking him doing that because he can't obtain instructions. In our submission, his observations there are not on the point because he was never obliged to obtain instructions or expected to. But that is his express position. And if his express position succeeds and finds favour with Your Honours, then it is hard to ³³³¹⁹ see what his residual function should be.

I remind you that -- respectfully remind you that our understanding of the proposed position and the position as effected by your order is that counsel would be untroubled, if necessary, by the lack of communication with the accused, would be untroubled by his disinclination to cooperate, and would simply call witnesses, or summon witnesses, prepare them and call them. And that if, in the event the witnesses, for whatever reason, declined to come, he wouldn't be saying that he had to withdraw, he'd simply be saying that he'd done his best. But the problem with the present position is, and in light of the approach taken by Mr. Kay and Ms. Higgins yesterday and today, is that if he finds himself in that position again, we can reasonably expect that his present position will be maintained, and he'll say he can't act. That's the problem.

And, Your Honour -- Your Honours, the setting the thing in a wider -- giving it a wider setting, we would respectfully invite you to look at the resolution of this problem, decide the longer term objective that the Court set or identified of concluding this case within a reasonable and indeed identified period of time, and would again respectfully invite the Court, at any event, to consider whether fixing a time for the conclusion of this case, perhaps the same time as was originally set, and ensuring that the modalities allow for that to happen is one way of looking at the problem.

The accused creates problems for the timetable by not using lawyers, by seeking to do everything himself, and arguably by, if it ³³³²⁰ happens again, working so hard that he makes himself unwell. There has to come a time when that combination of obstructive factors has to be faced, and if it has to be faced by saying to the accused, "You can have only so much of a period of time that is identified as you can use by the system you choose to employ for the presentation of your case," so be it. Because otherwise, this Court is being controlled in nearly all aspects of its conduct of the case not by the -- not by the interests it seeks to serve, proper interests, but by the accused himself. But, Your Honour, our basic position has to be, in answer to His Honour Judge Bonomy, that Mr. Kay and Ms. Higgins should not be allowed to withdraw unless the Court, as a result of everything it's heard yesterday and today, is satisfied that there is no useful function for them to serve.

JUDGE ROBINSON: Thank you, Mr. Nice.

MR. KAY: Your Honour, I have a substantial reply. I know it would take half an hour, and I know that the Court is booked.

JUDGE ROBINSON: I was rather hoping we would be able to finish today so that tomorrow we could start hearing the witnesses.

[Trial Chamber confers]

JUDGE ROBINSON: Let me ask. Mr. Milosevic, the witness you have for tomorrow, how long do you anticipate his testimony will take?

THE ACCUSED: [Interpretation] This is an urgent thing that I wanted to put to you today, Mr. Robinson. Today was supposed to be the day that I proofed that witness. However, with no fault of mine, the day was spent on something else. Therefore, I would like to ask you to permit ³³³²¹ me to prepare this witness tomorrow and that he testify next week. This is one thing that's quite specific.

The second thing is that you are aware of the fact that I have had no contacts with witnesses for two months now. I began to establish these contacts following the decision of the Appeals Chamber restoring me my right to call witnesses and question them. I need one week's time as a transitional period from a situation where I had no contacts whatsoever in order to prepare the first batch of witnesses who are to be called here in accordance with the schedule of three days a week, and this is why I believe that I should be permitted to do so.

There is another thing. I can prepare this witness tomorrow whom I was supposed to prepare today and which is not possible for obvious reasons, so I would like to ask you that. And I would also like to have some time in order to re-establish these connections and to prepare a group of witnesses which we can start with and then which we could then continuously hear for the time that has been planned for them.

JUDGE ROBINSON: You have two requests. The first is that you be given tomorrow to prepare the witness who should have been testifying tomorrow, and then that witness would testify next week. And then your second request is that you be given a period of one week within which to re-establish your relationships with the witnesses. We'll confer.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Milosevic, we were informed that the witness was to be proofed at 3.00 this afternoon. It wasn't our understanding ³³³²² that you were going to spend the entire day proofing him.

THE INTERPRETER: Microphone, please, for the accused.

THE ACCUSED: [Interpretation] Mr. Robinson, today we have this new matter that we have been dealing with these issues all day today, and I have been here all day. I cannot prepare a witness from 3.00 to 4.45, even if I put everything else aside. It's simply not possible. As you know, Mr. Nice proofed his witnesses up to a week. I cannot prepare a witness within an hour. And I think that my request is reasonable, and I'm not asking you for any privileges, but I'm just asking for a reasonable time in order to do what I need to do. And you can say that you accept that or that you do not accept that. That is up to you. But I believe that what I'm asking is reasonable.

JUDGE ROBINSON: And would that witness be available next week if he's proofed tomorrow? Do you know whether he will be available next week?

THE ACCUSED: [Interpretation] As far as I know, yes.

JUDGE KWON: Mr. Milosevic, the Presiding Judge's question was whether the witness was supposed to be proofed at 3.00 today, whether there was an appointment at 3.00 or not.

THE ACCUSED: [Interpretation] I was told a few days ago that I would be able to prepare that witness today, that today would be the day to prepare that witness, but not from 3.00 or anything like that. However today, when they saw that this sitting is taking up the entire session, they said that he could come in at 3.00. But it's too short, if he comes to see me at 3.00, it's not enough time for me to be able to prepare him ³³³²³ for his testimony.

[Trial Chamber confers]

JUDGE ROBINSON: Mr. Milosevic, this is what we'll do: Tomorrow morning we'll resume the hearing of Mr. Kay's application. I expect that will take no more than half an hour to 40 minutes. And the rest of the day you'll have to proof the witness, who would then be ready to testify next week.

Are we sitting Monday or Tuesday? Tuesday. Next week Tuesday. Tomorrow we will -- we'll give a ruling on your second request that you be given a week within which to re-establish contact with your list of witnesses.

So we're going to adjourn now and resume tomorrow morning at 9.00.

--- Whereupon the hearing adjourned at 1.51 p.m. to be reconvened on Thursday, the 11th day of

November, 2004, at 9.00 a.m.