Milosevic out sick – witness refuses to testify in accused's absence; Trial Chamber may impose contempt charges, witness fully informed of consequences of his obstinance

Slobodan Milosevic has been taken ill and did not appear in court today.  According to his court-assigned counsel, Steven Kay, this was a medical decision made over the accused's own desire to be present.  During the previous court session, the accused had completed his direct examination of Kosta Bulatovic, a former leader of the so-called 'Serbian Resistance Movement' in Kosovo and today the prosecution was to resume its cross examination.  Mr. Bulatovic however, refused to answer any questions put forth by prosecutor Geoffrey Nice in the absence of the accused, explaining that he came to testify on behalf of Mr. Milosevic and in his presence. 

Witness: 'I prefer death' over the 'disgrace' of not being able to testify in accused's presence

Addressing the accused as 'his president' the witness was adamant that 'without the presence of Mr. Milosevic, I cannot say anything – to do so would be a shame and I prefer death to going home in disgrace.'

The entire bench attempts to persuade witness to testify

All three judges took turns attempting to persuade the witness to testify, assuring him that the defendant would be able to review his testimony both through a written transcript and video recording and that Mr. Milosevic would have an opportunity to present a re-direct examination after the prosecution's cross.   Still, the witness would not budge.  Judge Bonomy admonished Mr. Bulatovic, telling him, 'you came here to tell the truth.  The world wants to know the truth -- why do you want to conceal the truth now?'  To which the witness answered, 'thank you, Judge Bonomy, for that insult.'   Judge Kwon advised the witness that the presence of the accused had nothing to do with the prosecution's cross examination, and if Mr. Milosevic wished, he could recall the witness later to give further evidence.  Mr. Bulatovic however stated that he should have just given testimony via videotape from his home in Podgorica if that were the case, and again reiterated that he would insult and shame his family, his clan and his brotherhood if forced to testify outside without Milosevic present. 

After being asked several times to explain himself, the witness was unable to enunciate a legitimate legal or practical reason to justify his behavior repeating instead references to his honor and the avoidance of shame.  Mr. Bulatovic could have argued that he did not want to be subject to a punishing or intimidating cross examination without the assistance of Mr. Milosevic who could make objections to protect the witness from unfair badgering.  But he didn't.  Mr. Kay later hinted at this, but the Court's likely answer would have been that Mr. Kay and Ms. Higgins were both present to ensure that the cross-examination was conducted within reasonable limits. 

Prosecution:  Do not allow the witness to control this court

Prosecutor Nice argued that the court's authority and dignity were being called into question by the behavior of the witness.  Mr. Nice argued that either the witness should be cited for contempt or that his evidence should be stricken from record as the prosecution was unable to complete its cross examination.  He noted that to allow the witness to refuse to testify would be akin to handing over control of the court to the witness and would set a highly damaging precedent for future witnesses to follow.

Defense: Accused should be present to be fully informed and able to object

Assigned counsel Steven Kay argued Mr. Milosevic should be able to hear the testimony himself in order to be more fully informed and also to present objections, if he felt it appropriate.  Mr. Kay also noted that one of the prosecution's first witnesses, Agim Zeqiri was unable to complete his testimony under cross examination.  Furthermore, Mr. Kay noted that the witness would not provide any substantial testimony about the crimes alleged in the indictment and therefore the prosecution would not be prejudiced by his refusal to answer further cross-examination. 

Analysis:  Trial Chamber will not allow witness to control pace of proceedings - contempt charges possible, witness fully informed of the consequences of his action

In national jurisdictions such as United States state and federal courts, Mr. Bulatovic would be sitting in a jail cell this minute on contempt charges for his refusal to testify.  In fact, the trial chamber threatened to charge Mr. Bulatovic with contempt of court, and informed him of the gravity of this charge – noting that as a consequence he could incur a fine or jail time.   The Trial Chamber went out of its way to be fair to this witness and provided him with some time to fully digest the import of a contempt charge.  Most importantly, the Trial Chamber advised the witness to seek legal counsel to fully inform him of the consequences of his behavior and advise him on how to best protect his own rights and interests.  If he is later found to be in contempt, he will have been given full opportunity to understand why.   

A further sanction that the Chamber could have imposed would be to strike the testimony given so far, as it could be deemed incomplete without the benefit of a full cross examination.  However, even the Prosecution appeared eager to get in some 'important' testimony about events leading to the break-up of the former Yugoslavia and would have preferred an opportunity to elicit testimony.  

Tomorrow, the witness will either likely continue to refuse to testify and be found in contempt, or it is possible that Mr. Milosevic will return to the courtroom and cross examination will continue.  The judge's however, have deprived Milosevic of an opportunity to claim that the Chamber was unfair to him and his witness during his absence.

Still, it is clear that today's session was halted by the witness. The Prosecution's worries that this would set a damaging precedent for future witnesses may be well-founded as many witnesses had previously refused to testify unless Mr. Milosevic was allowed to represent himself. 

Mr. Bulatovic's defiance comes at an interesting juncture in the proceedings.  Only last week, during the status conference to assess the progress of the trial, the bench suggested the possibility of holding sessions four days a week, or beginning court an hour earlier each day to save time.  Mr. Milosevic staunchly objected that such a schedule would be pernicious to his health.  Today, with Mr. Milosevic out of court due to health-related problems, the trial could not continue because of the witnesses' refusal to cooperate. 

ICTY Appeals Chamber clear that proceedings may continue even if accused temporarily ill
The jurisprudence of the Tribunal has been clear on this issue.  The Appeals Chamber, in its decision of 1 November 2004 on the Trial Chamber's Decision on the Assignment of Defense Counsel balanced the interest of the defendant to represent himself and take the lead in doing so (as opposed to being relegated to a 'second-tier' role in occasionally being allowed to examine witnesses when the bench deemed appropriate) with the court's 'basic interest in a reasonably expeditious resolution of the cases before it.'   The Appeal's Chamber held that the presence of assigned counsel should allow the proceedings to go forward 'even if Milosevic is temporarily unable to participate' due to his health. 

Mr. Milosevic suffers from two chronic cardiovascular conditions: severe essential hypertension and hypertrophic heart disease. Mr. Milosevic's trial has proceeded on the understanding that when Mr. Milosevic's blood pressure is elevated to a certain unacceptable level, an adjournment would be necessary.

During the prosecution's case, the trial was delayed by 66 days over 13 suspensions of proceedings due to Mr. Milosevic's poor health.  The Defense case opened six months after the Prosecution rested due to further delays caused by the accused's health problems.