1 Friday, 29 May 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.14 p.m.
5 JUDGE KWON: Good afternoon. If you could call the case, please.
6 THE REGISTRAR: Thank you, and good afternoon, Your Honours.
7 This is case number IT-03-67-R77.2, the Prosecutor versus
8 Vojislav Seselj.
9 JUDGE KWON: Thank you. Can I have the appearances, please.
10 MR. MacFARLANE: Thank you, Your Honours. My name is
11 Bruce MacFarlane. I'm barrister from Canada appearing as amicus curiae
12 Prosecutor in these proceedings, and with me this afternoon and
13 throughout the proceedings is Lori Ann Wanlin, also from Canada.
14 JUDGE KWON: Thank you, Mr. MacFarlane.
15 Good afternoon, Mr. Seselj. For the record, could you state your
16 full name, please.
17 THE ACCUSED: [Interpretation] Dr. Vojislav Seselj, professor --
18 university professor and the accused in The Hague with the longest
19 detention -- time in detention in the history of courts.
20 JUDGE KWON: I take it that you're following this procedure in
21 the language you understand.
22 THE ACCUSED: [Interpretation] Yes.
23 JUDGE KWON: If at any time you have a problem, please let us
25 Well, the Trial Chamber indicated in its order of 22nd of May the
1 trial in this case will be held today. Before the -- we start the trial,
2 there are a couple of matters to be dealt with as part of Pre-Trial
3 Conference, so first is a planning of the trial.
4 Mr. MacFarlane, how long do you expect your Prosecution case to
6 MR. MacFARLANE: Your Honours, the trial will consist essentially
7 of --
8 THE INTERPRETER: Microphone, please.
9 JUDGE KWON: Mr. MacFarlane, could you turn on your microphone,
11 MR. MacFARLANE: Thank you. Your Honours, the case for the
12 Prosecution essentially will have two main components. The first is the
13 tendering, physical tendering of a series of documents; and the second
14 will be the submission with respect to those so that they're in context.
15 There will be no witnesses, so my best assessment is that the
16 case for the Prosecution will be in the vicinity of three hours or
17 thereabouts. Most of that, I should say, will involve my submission to
18 the Chamber with respect to the documents.
19 JUDGE KWON: Sir, I don't follow in full. You need three hours
20 to submit the exhibits?
21 MR. MacFARLANE: No. I -- perhaps I could be clearer on that.
22 The actual physical --
23 THE INTERPRETER: Microphone, please, Mr. MacFarlane.
24 MR. MacFARLANE: Perhaps I should be a bit clearer on that. The
25 actual physical tendering of the exhibits probably won't take much more
1 than a half an hour or so. It is the submission with respect to the
2 evidence, in essence the closing submission that will require the bulk of
3 my time. So what would normally be the tendering of the evidence will be
4 relatively short.
5 JUDGE KWON: And the -- what would the other time be composed of
6 in terms of three hours?
7 MR. MacFARLANE: I expect I will need about two hours.
8 JUDGE KWON: That would include the opening statement and closing
10 MR. MacFARLANE: Yes.
11 JUDGE KWON: How long do you think your opening statement would
13 MR. MacFARLANE: It would be relatively brief. I expect it would
14 be ten minutes.
15 JUDGE KWON: Very well. Then before we go on -- move further,
16 why don't we deal with your -- the motion for admission of exhibits from
17 the bar table.
18 As we indicated in our previous order, we'll deal with it now
19 orally. Do you have anything to add in addition to what is stated in
20 your motion?
21 MR. MacFARLANE: No, Your Honours. The -- the legal framework
22 and the submission is contained within that material. There wasn't
23 anything further that I was going to add. I was simply going to reaffirm
24 what I've already said in the motion document.
25 JUDGE KWON: What was not clear to me is the -- is the book,
1 the -- it's 65 ter number 1 refers to the B/C/S version, and number 2
2 refers to the English translation. Am I correct in so understanding?
3 And your intention is, then, to tender the whole book in B/C/S.
4 MR. MacFARLANE: No. No, it's -- no, it's not my intention to
5 tender a physical book. The -- what will be tendered is a hard copy in
6 English and B/C/S of the relevant portions of the book, but the physical
7 hard copy book with a cover will not be tendered.
8 JUDGE KWON: Very well. The -- one category of documents you are
9 planning to tender are the documents from the main trial case, as well as
10 in present case to which Chamber, you, and the accused have access and
11 which is part of the record.
12 MR. MacFARLANE: Yes.
13 JUDGE KWON: Do you need to tender them as exhibit?
14 MR. MacFARLANE: I will be referring to them, and they in turn
15 will have linkages to the translation of the book so that it -- it seemed
16 to me that having them as part of the record would be preferable. I
17 recognise that they form part of the overall record of the Tribunal, but
18 it seemed to me and it's my submission that having them before you so
19 that you can compare and contrast certain parts of it would be helpful.
20 JUDGE KWON: Thank you. Let me hear from Mr. Seselj.
21 My understanding is that the translation of the motion has been
22 disclosed to you yesterday. Is it correct, Mr. Seselj?
23 THE ACCUSED: [Interpretation] I would first of all like to tell
24 you that I'm going to insist upon my right to use an equal amount of time
25 as the Prosecutor is going to use, but I have an objection to the request
1 by the Prosecutor that he needs three hours. I consider that that is
2 much too much and that he can present everything in a much shorter space
3 of time so that the trial can be completed today. And I think that it is
4 in the general interest to save time whenever possible, especially since
5 this is not the main trial, and I have to deal with more important
7 Now, with respect to the request made by the Prosecutor that
8 these documents be tendered into evidence, it is true that it was only
9 yesterday that I received the translation of that list of documents, and
10 a few days ago I received a pile of other documents, but I have managed
11 to get through all of them, so I'm not make -- I'm not going to make any
13 And the third thing that I wanted to tell you is this: It is
14 highly problematic to ask that documents be directly entered into
15 evidence in this way. However, bearing in mind the fact that here we're
16 dealing with generally known documents, at least it is common knowledge
17 to this Tribunal, I'm not going to object to that either, because I think
18 there's no reason for me to object to documents for which it is a
19 notorious fact that they are in existence. So that would be
20 unreasonable. It would be unreasonable to object.
21 But I'd like to draw your attention to the fact that there are
22 too many documents which are not needed and which encumber and burden the
23 list. Many things are not being challenged from the outset. It is --
24 I'm not challenging that I'm the author of the book. So there's no need
25 to prove that on the basis of documents. I have said that a number of
1 times. I have also explained during the main proceedings the way in
2 which I compiled the book and gave instructions for the book's printing.
3 So we would have to discuss matters here which are contentious,
4 and what is contentious is whether there was disclosure of protected
5 witnesses at all or not.
6 And then the question of motivation comes into play. What my
7 motives were. Were my motives to disclose the names of protected
8 witnesses or to unmask a plot in public with respect to (redacted) that is
9 incorporated into my indictment for which there is to legal grounds, and
10 I think that is the substance of the matter and the essential question.
11 So I have nothing against having evidence -- having admitted into
12 evidence that three witnesses enjoyed protective measures and that I was
13 informed on time that they were in fact protected witnesses and that I
14 knew that their names could not be disclosed. That can be admitted into
15 evidence straight away. There's no reason for me to challenge that at
16 all and oppose it. So that's a whole set of documents here which the
17 Prosecutor has attached.
18 Then, furthermore, I have nothing against having all the
19 transcripts from the main trial be admitted into evidence and my comments
20 about the book and the portions where I explain how the book came into
21 being in the first place, and we have documents here testifying to the
22 publication of the book and its public promotions in Serbia. I have
23 nothing against that either. I don't object to that being admitted into
24 evidence, and if I'm not contesting it, then why?
25 And here we have statements which were made by these protected
1 witnesses on several occasions. Now, is that necessary? Do you need to
2 tender that into evidence I leave it up to you to weigh that up. I think
3 that this once again burdens the whole subject matter.
4 The only problem, in my opinion, is this: It is that from the
5 available documents I concluded that the book was not translated in its
6 entirety, that only sections and excerpts have been translated, and I
7 consider that nowhere in the world can a serious court be able to try and
8 pass judgement in a matter of this kind without being provided an insight
9 into the entirety of the book. And I'm convinced, Judges, gentlemen,
10 that you cannot understand the entirety of the book on the basis of just
11 some excerpts and sections from the book. And let me remind you of what
12 the famous French Cardinal Richelieu once said, and he said, Just give me
13 one sentence from any text and I'll find sufficient reasons to send the
14 author to the gallows. That would not be serious. It wouldn't be a
15 serious trial and case. So why then did the Prosecutor not ensure that
16 you had the entire book translated?
17 Last time the Prosecutor gave you incorrect information to the
18 effect that the book was 1.400 pages long. The book is just 1.200 pages
19 long, which means 200 pages less, 200 pages less to translate, and the
20 Prosecutor had enough time at his disposal to provide you with the
21 comprehensive translation of the book, because you'll be able to
22 understand the book only if you read it from cover to cover. And when I
23 come to give my opening statement, I will explain to you what the
24 contents of the book is. But on the basis of the Prosecution's position
25 and my explanations, but without you having read the whole book, I don't
1 think you'll be able to try this case. If you believe otherwise then we
2 can move on.
3 JUDGE KWON: Thank you.
4 [Trial Chamber confers]
5 JUDGE KWON: Mr. MacFarlane, if you could explain us -- explain
6 to us the relevance or necessity to tender those witness statements,
7 whether you can live without them.
8 MR. MacFARLANE: The charge against Mr. Seselj specifically
9 refers to disclosing portions of the statement of one of the witnesses.
10 That's very much a part of the charge. And with respect to the other two
11 witnesses, some portions of the statement are not just disclosed but they
12 disclose what I'll refer to as identifier information as well. So for
13 all of those reasons, the statements do form a part of the landscape on
14 this case.
15 JUDGE KWON: Thank you. Is there anything you'd like to respond
16 to Mr. Seselj's argument that whole book should be admitted?
17 MR. MacFARLANE: Yes, there are a few things I would like to say.
18 First of all, with respect to the length of the book, Mr. Seselj has in
19 court today the hard copy with the cover, and it's my understanding that
20 that is 1.200 pages. The downloaded web site version is 1.400 pages and
21 that was the version that we were using. That's the answer for the 1.200
22 versus the 1.400.
23 In terms of the translation of the full book versus the relevant
24 portions, as I mentioned on the last occasion, we had a translator go
25 through the entire book and it became evident, as that person was going
1 through it, that the vast majority of the book is completely irrelevant.
2 It deals with matters that are far away from the issues before this
3 Chamber, so that those portions of the book that are relevant, either
4 identify or tend to identify, are the portions that have been translated
5 formally. In context we erred on the side of translating probably a bit
6 too much to ensure that there was context. Yet, at the end of the day,
7 it became largely an issue of the amount of time that would be required
8 to have a formal translation of a book that was 1.400 pages long with
9 very dense word capacity. So that was also a matter that was taken into
10 account given the fact that contempt proceedings are intended to be
11 relatively straightforward and expedited. Those are all the factors that
12 were taken into account in ensuring that the relevant portions of the
13 book were translated.
14 JUDGE KWON: One last question, Mr. MacFarlane. If the -- this
15 bar table motion is to be dealt with during the course of Pre-Trial
16 Conference, so to speak, now, there would be no need to separate opening
17 statement and closing argument, or you can do it in one batch.
18 MR. MacFARLANE: I'd be quite happy to do that, Your Honours, and
19 in fact depending on how the proceedings unfold this afternoon, it may
20 well be that I could expedite my comments in such a way that I wouldn't
21 require the number of hours that I mentioned. It might be less than
22 that. I recognise the desirability of dealing with the matter as the
23 accused has pointed out today, and I will endeavour to do whatever I can
24 to accommodate that.
25 JUDGE KWON: Thank you. Mr. --
1 THE ACCUSED: [Interpretation] May I be allowed to say something?
2 JUDGE KWON: Yes. I was about to come to you. Do you like to
3 say something beforehand?
4 THE ACCUSED: [Interpretation] Well, I hope, Judges, that you have
5 noticed something very important in the statement that the Prosecutor has
6 just made. The Prosecutor said that in the book there are elements which
7 could identify the witnesses. So he's now uncovering the essence of the
8 case. There are certain elements which could identify, he says.
9 Probably there are, but neither -- the Prosecutor did not dare say that
10 I, in fact, identified the names of protected witnesses, because the
11 identification must be clear and direct if that is to be stated and not
12 to be understood. It might be understood in certain parts, but how are
13 you going to look at the motives of the publication of this book - that's
14 the question - if you haven't got an insight into those parts which the
15 Prosecutor says are irrelevant?
16 JUDGE KWON: Mr. Seselj, that's a matter for the trial. We'll
17 come to those issues very briefly when trial starts.
18 For the planning purpose, I'd like to know what kind of evidence
19 you are going to -- you plan to tender today. I take it you are not
20 planning to propose any witnesses.
21 THE ACCUSED: [Interpretation] Well, since the Prosecutor hasn't
22 planned any witnesses, I don't plan any either. Had the witness had --
23 had the Prosecutors had witnesses, I would have had five witnesses of my
24 own, and I've already proofed them. But since the Prosecutor won't bring
25 any witnesses forward, I won't either, but I do consider that the entire
1 book must be admitted into evidence and on the list, because without it
2 this trial would have no sense.
3 To try me for a book which you don't have in its entirety, I
4 think that would be totally unacceptable and impermissible. And the
5 Prosecution, the OTP, received a copy of the book from me. I gave it to
6 them personally, and they can have it dealt with in a short space of
7 time. I don't know why the Prosecutor in this case has not been given a
8 copy of the book. I suppose they're so interested in the book and find
9 it such fascinating reading that they couldn't leave it out of their
11 JUDGE KWON: Mr. Seselj, do you have other exhibit to tender than
12 the book in question?
13 THE ACCUSED: [Interpretation] Nothing more than that. No, I'm
14 not going to propose anything else, to tender anything else.
15 [Trial Chamber confers]
16 JUDGE KWON: The Chamber finds the exhibit tendered by the amicus
17 curiae Prosecutor relevant and of probative value and therefore we -- we
18 admit it -- admit them in their entirety. But those material which may
19 reveal the protected, confidential information will be put under seal. I
20 will not deal with item by item, but with the assistance of the registrar
21 that will be communicated to the parties.
22 And coming to your book, Mr. Seselj, we will admit it in its
23 entirety into evidence. However, that does not necessarily mean the
24 whole book should be translated. Those relevant parts and necessary
25 parts can be referred to in the course of trial by you, which means those
1 parts can be translated, and if necessary, the Chamber will look into the
2 parts that may be raised during the course of trial later on.
3 That said, it is for you, Mr. MacFarlane, to open the case.
4 MR. MacFARLANE: Thank you, Your Honours. The first order of
5 business probably would involve the tendering of the exhibits and their
6 marking, or does the Chamber have another approach in mind in terms of
7 the exhibits?
8 [Trial Chamber confers]
9 THE ACCUSED: [Interpretation] I have an objection to this request
10 by the Prosecutor.
11 JUDGE KWON: I didn't hear you, Mr. Seselj.
12 THE ACCUSED: [Interpretation] I object to this Prosecutor's
13 request. Since I never contested any of these documents proposed by the
14 Prosecution, the Trial Chamber can automatically, without any objection
15 on my part, admit them into evidence, and based on the supporting request
16 from the OTP assign only one number to it, but it can also give it
17 identical sequential numbers contained in the Prosecution request for the
18 sake of saving time. My impression is that the Prosecution wants
19 intentionally to waste time on this. I think that one sentence based on
20 the agreement of both parties will provide a solution to this issue. I
21 thought that we can move on to the essence of this case.
22 JUDGE KWON: I tend to agree with you, Mr. Seselj. Those have
23 been tendered, admitted, disclosed, the numbers can be assigned later on
24 and communicated to the parties.
25 MR. MacFARLANE: I'm certainly anxious that the proceedings move
1 expeditiously. I was going to suggest that one way to approach it would
2 be to have the numbers that are set out in the annex to my motion, have
3 those accepted as the exhibit numbers and that could be achieved very
4 quickly and not -- during the course of a break or afterwards.
5 JUDGE KWON: That can be done easily. I would like to check with
6 the registrar whether there's any problem with it.
7 [Trial Chamber and registrar confer]
8 THE INTERPRETER: Interpreter's note, Mr. MacFarlane is kindly
9 requested to speak into the microphone to his right.
10 JUDGE KWON: Mr. MacFarlane, you can proceed on that basis.
11 The -- your numbers are identical in both 65 ter motion and the bar table
12 motion? You used the same numbers.
13 MR. MacFARLANE: Yes, that's correct.
14 JUDGE BONOMY: I'm afraid I'm not clear about this. I have an
15 Annex A and an Annex B and they did at one time appeared to be identical
16 but for the reference to the book. Now, is one of them what I should be
17 viewing as the index of numbers of these exhibits?
18 MR. MacFARLANE: My suggestion is that we use the confidential
19 Annex B to the motion which is headed "Contents of CD using the
20 Rule 65 ter Exhibit Number." So that's Annex B.
21 JUDGE BONOMY: Annex B includes on the face of it the whole B/C/S
22 version of the book.
23 MR. MacFARLANE: And that would accommodate the accused in this
24 particular case.
25 JUDGE BONOMY: Yes, but it -- there's -- yes. So it's on the
1 second page with the number 1.
2 MR. MacFARLANE: That's correct.
3 JUDGE BONOMY: So that gets round any issue over admitting the
4 book. It's part of your -- the documents that you tender. Thank you.
5 JUDGE KWON: Yes. Let's proceed.
6 MR. MacFARLANE: Thank you, Your Honours. Just a couple of
7 comments before I move into the evidence per se.
8 This is, in my respectful submission, a relatively
9 straightforward case. It involves a publication contempt allegedly of
10 the Tribunal. There's one accused, one charge, and one publication.
11 What makes the case a bit different is that the accused --
12 JUDGE KWON: Mr. MacFarlane, if you could speak into the
13 microphone. One thing I forgot to mention both to you and Mr. Seselj is
14 that to avoid the information that may reveal the identity of the
15 protected witnesses, and then I'd like to remind Mr. Seselj again of the
16 fact that the title of the book is -- is under seal, so not to mention
17 the exact title of the book in the open court. So when necessary, we may
18 go into private session.
19 Sorry to interrupt you, Mr. MacFarlane.
20 MR. MacFARLANE: Thank you. I'll endeavour to ensure that I'm
21 being recorded and translated.
22 What -- what sets this case perhaps off to the side in a
23 different way from other cases is that the evidence will demonstrate that
24 the accused embarked on a course of conduct with a view to camouflaging
25 the identification of the witnesses, with a view to avoiding criminal
1 proceedings, and in his view, the evidence will demonstrate that he felt
2 that only a clever person would be able to figure out the identification
3 of the witnesses. It's my submission on the evidence that identification
4 is open to any reasonable person with knowledge of the facts and that
5 just about anyone could figure out the identification in the book. And
6 as well, the accused has been relatively open about his plan in this
7 particular case. And that takes me -- that takes me into the trial
8 transcripts. These are the transcripts from the main trial. Not all of
9 the transcripts will be necessary for me to make reference to because of
10 the admissions made by the accused.
11 The -- the issue of the promotion of the book, the accused has
12 already commented on that. I would just simply note that the -- a couple
13 of transcripts are relevant. The first one that I would draw to the
14 attention of the Chamber is on the 7th of May, 2009, page 29. The
15 accused notes that not only is he the author of the book, that he's very
16 proud of it, and thanks to these legal proceedings there's been a lot of
17 interest in the book on his internet site. Several thousand copies have
18 been photocopied and reproduced and that he was very satisfied.
19 That addresses the question of the scope of the publication of
20 this book.
25 I think I'll leave it at that point. There's other transcripts
1 dealing with the promotion and the scope of the publication, but with a
2 view to expediting proceedings, I would simply note (redacted)
3 (redacted) distributed, that
4 in Belgrade
5 there were approximately 3.000 people present. And I think I'll leave it
6 at that in terms of scope of publication.
1 Some portions of the transcripts are relevant, in my respectful
2 submission, to the issue of mens rea, and there's two -- two transcripts
3 in particular. The first occurred on the 9th of October, 2008, at
4 page 10.582. The accused said in essence this:
10 (redacted) That is the fruit
11 of their labour pursuant to my instructions. They are my extended arm in
12 all of this."
13 That indicates the nature of the relationship between the
14 advisors on the team and the accused. The advisors and the team appear
15 to have largely prepared it but pursuant to the instructions as an
16 extended arm of the accused.
17 A similar comment was made by the accused on the
18 21st of October, 2008, at pages 10.810 and 10.811. To make sure that
19 it's seen in context I'll read that paragraph.
20 JUDGE KWON: Mr. MacFarlane, sorry to interrupt you, but can I
21 remind you to try not to reveal the information that may reveal the title
22 of the book, et cetera.
23 MR. MacFARLANE: Thank you.
24 JUDGE KWON: Please go on.
25 MR. MacFARLANE: I'll endeavour to steer around some words. The
1 accused is reported as having said this:
2 "Now, in addition to this (redacted), that is great deal of
3 mystification on the basis of this book and it's a report that my
4 associates compiled for me as an attachment for my last complaint against
5 the indictment. You know, the text was a letter lengthy one, about
6 300 pages, and you ordered that it should not be translated into English.
7 I said it should be printed and published but that the names be thrown
8 out and that the code-names be used, the codes used by the Prosecution,
9 and in that book you'll see those codes." And then he continued.
10 "Now, the fact that someone who is clever and intelligent can
11 draw their own conclusions as to who the person is, well, what do I care
12 about that?" And it's that last comment that I submit is particularly
13 relevant to the question of mens rea. It appears that the accused issued
14 instructions, recognised that clever and intelligent persons may be --
15 THE INTERPRETER: Could the speaker go a bit more slowly when
16 reading, please.
17 JUDGE KWON: Mr. MacFarlane, when you read the text could be more
18 slower for the benefit of the interpreters.
19 MR. MacFARLANE: Thank you.
20 JUDGE KWON: And if you could repeat from when you said: "It
21 appears that the accused issued instructions."
22 MR. MacFARLANE: I will repeat that relevant portion,
23 Your Honours.
24 "And it is a report that my associate compiled for me as an
25 attachment for my last complaint against the indictment. You know the
1 text was a rather lengthy one, about 300 pages, and you ordered that it
2 should not be translated into English. I said it should be printed and
3 published but that the names be thrown out and that code-names be used,
4 the codes used by the Prosecution, and in that book you'll see those
5 codes." And then the accused continued in a particularly important way.
6 "Now, the fact that someone" -- pardon me -- "somebody who is
7 clever and intelligent can draw their own conclusions as to who the
8 person is, well, what do I care about that?"
9 The further comments that are relevant to the issue of mens rea,
10 Your Honours, it appears that the accused made a conscious decision to
11 avoid in particular one particular witness's name, and he gave specific
12 instructions to avoid that name. I will be dealing with that, because if
13 you look through the textbook, it becomes apparent that even that person
14 can be identified. This is in essence a jigsaw puzzle that the accused
15 and his associates endeavoured to put together to defeat any criminal
1 On another occasion -- I'll be drawing my comments to a
2 conclusion on the transcripts in just a moment.
3 On the 25th of February, 2009, at page 14.261, the accused made
4 this comment with respect to the book in question:
5 "In my case, in a beautiful book, 1.200 pages, with a lovely
6 title, in the introductory remarks I never revealed the names of
7 protected witnesses, and in the appendix to the book, in various
8 documents that I've gathered, you can find documents where full names are
9 indicated of witnesses, but you don't get to have their pseudonyms right
10 next to those names, so you really have to put in an effort, and you have
11 to be quite smart in order to perhaps be able to divine the identity of
12 those witnesses."
13 In my respectful submission, that's a particularly telling
14 excerpt from the transcript on the issue of mens rea. His plan was to
15 ensure that nowhere is the pseudonym and the real name together on the
16 same line or in the same area of the book, and on my review of the book,
17 it appears that he was pretty successful in doing that, but that was the
19 So he said, "We never put them together, so you really have to
20 put in an effort, and you have to be quite smart in order to perhaps be
21 able to divine the identity."
22 And as we go through the book, I will be submitting to the
23 Chamber that that's essentially the nature of the book. He was
24 successful in terms of avoiding placing the pseudonym and the name of the
25 witness together, but by virtue of context and content and activity,
1 anyone with a reasonable intellect can figure out who the witnesses are.
2 There is one final comment I have with respect to the main trial
3 transcripts, but of necessity I'll need to deal with protected
4 information, so we might want to move into closed session for a minute or
6 JUDGE KWON: By all means. I don't -- private session will be
7 sufficient. Thank you.
8 [Private session]
11 Pages 53-82 redacted. Private session.
18 [Open session]
19 JUDGE KWON: No, just -- yes, we are now in open session. Please
21 MR. MacFARLANE: Thank you, Your Honours. In the event of a
22 finding of guilt on the count, following are my submissions with respect
23 to the appropriate sentence. There's quite a range of fact situations
24 when it comes to publication contempt, from what -- what some might
25 characterize as low-level publication contempt straight through to
1 attempts to interfere with witnesses and in some cases intimidate
2 witnesses or in essence scare them off. So there's many different
3 scenarios that can arise.
4 In my submission, these three witness had very tight protection
5 which was provided by the Chamber. It was apparent to the Chamber that
6 they needed protection, and the steps that were taken were very serious.
7 I guess that's point number one.
8 The second point is that it's become apparent that the accused
9 embarked on a deliberate course of action. He deliberately camouflaged
10 the -- or endeavoured to camouflage the names of the witnesses so that he
11 could put his book out, and at the same time, anyone who took a look at
12 the book, read the book, would understand who the witnesses were and in
13 that sense exposed them to the world, because the world can read the book
14 on the accused's web site.
15 So scope is clearly an issue. The protections around the
16 witnesses is an aggravating feature. This is clearly an attempt to try
17 to manipulate or intimidate the witnesses by exposing them.
18 The accused contends that he didn't intimidate. I submit to the
19 Chamber that that's not accurate. This was an attempt to intimidate and
20 to expose them despite the protective measures imposed by the Chamber.
21 I've had occasion to review virtually all of the contempt cases
22 from 1999 to 2008, and in some instances a monetary penalty was imposed,
23 in other instances a term of imprisonment, anywhere between 3, 4, and
24 5 months has been imposed by the Chamber.
25 It's my respectful submission that in the facts of this case,
1 where carefully protected witnesses have been exposed through a concocted
2 plan, the upper range of penalty is called for to make it clear that the
3 Chamber will not tolerate this sort of manipulation and subterfuge with a
4 view to exposing a witness that has been manipulated. It's my submission
5 that a term of imprisonment is called for and that it ought be on the
6 upper range as being appropriate on the facts of the case. So those are
7 my basic comments on the question of sentence.
8 JUDGE KWON: Thank you, Mr. MacFarlane.
9 Mr. Seselj, now it's your time to present your case to the
10 Chamber as well as any evidence.
11 THE ACCUSED: [Interpretation] Judges, at the beginning I have to
12 admit to you that I'm very unpleasantly surprised by the presentation of
13 Mr. MacFarlane, his appearance as amicus curiae of the court. I had
14 expected a more competent and more professional approach. He is a man --
15 he was expected to be a man who would provide a full insight into the
16 case and accusations, and thereafter, to prove that there was an
17 existence of crime, and then after that he would have been expected to
18 prove that there was intent or mens rea. He did neither. His approach
19 was a theological [as interpreted] one, which means it was targeted.
20 Please correct the transcript immediately. Here it says
21 "theological," whereas I said "teleological," and your interpreters are
22 not properly educated to know the difference between "theological" and
23 "teleological." It just occurred to me at this moment to look at the
24 transcript because I have very bad experience with the interpreters that
25 you have here.
1 So therefore, he had a very focussed and targeted approach. He
2 was interested in collecting pieces of evidence that could support the
4 Raw extraction of the arguments from the context of the book
5 can -- appears to be supporting his allegations and charges, but
6 basically this is clouding the key point. He has not read the book and
7 is unable to give an assessment of the book, whereas he says that the
8 motive behind the publishing of this book was to disclose the names of
9 the witnesses. Had he read the book, he could never have arrived at this
11 Let us make a little experiment. In order for me to prove to you
12 that Mr. MacFarlane has no idea, absolutely what this book contains? For
13 example, he doesn't know how many times the name of Mr. Ian Bonomy, the
14 member of this Trial Chamber, appears in the book. He doesn't know that
15 because nobody told him so. You see, look how he's wriggling in his
16 chair, his body language and his look shows that he doesn't know. The
17 name of Judge Bonomy has been mentioned in this book four times because
18 Judge Bonomy was a member of the Trial Chamber which I addressed on
19 several occasions with respect to certain procedural and legal issues,
20 and for that reason his name is included in the cover pages of four
22 This brings us to the question how this book came about. The
23 Trial Chamber II that was conducting pre-trial proceedings against me
24 until the beginning of 2007, deprived me of the right to file an appeal
25 to the second amended indictment for some procedural reasons including
1 even the deadlines for filing such motions. For that reason I appealed
2 to Trial Chamber III
3 appeal, and I requested a new deadline. The Pre-Trial Chamber III -- and
4 you can find all these documents at the beginning of the book, and the
5 Prosecutor should have informed you about that. Trial Chamber III,
6 sometime in October 2007, granted me a new deadline to file an appeal
7 against the indictment, and I did that. The motion was compiled by my
8 legal associates, and I attached to it a 300-page supporting document.
9 In this analysis I wanted to provide to the Trial Chamber
10 abundant evidence that would force them to eliminate one part of the
11 indictment against me as completely unfounded. I suppose that
12 Judge Parker remembers 2004, when he was member of the Trial Chamber
13 conducting preliminary phase. In 2004, the Trial Chamber of which he was
14 a member deliberated on my preliminary motion against the indictment.
15 Among several locations mentioned as one that were related to the
16 charges of crimes, one location should have been removed from the
17 indictment unless the Prosecution had any proof that there was -- there
18 was a war conflict going on on that specific location.
19 The Appeals Chamber included again this portion into the
20 indictment by simply announcing that the burden of proof of whether there
21 was an armed conflict or not is on the trial; that is to say, that during
22 the trial the case should be put forward to prove or disprove whether the
23 war was going on or not. However, I had sufficient evidence to say that
24 there was not only no war, but there was no attack even.
25 You know that according to Rule -- to Article 5 of the article,
1 in order for it to be implemented, in addition to a war, it provides for
2 the existence of an attack that has to be widespread or systematic.
3 I provided quite a few pieces of evidence in this study that
4 there was no attack, and there was no systematic or widespread attack
5 even more.
6 Reynaud Theunens from the OTP confirmed in the courtroom that
7 there were no attacks launched against the civilian population in those
8 specific locations. However, what happened at that point? The Trial
9 Chamber was impatient and was under the pressure of the Council of Europe
10 who had been demanding for a trial against me to start as soon as
11 possible, without all the requirements being fulfilled, didn't have time
12 to deal with this study. They even instructed this study not to be
13 translated. And the trial was scheduled out of the blue, without all
14 procedural requirements being fulfilled. All the evidence, according to
15 65 ter were not disclosed to me. The decisions concerning all
16 interlocutory motions were made. In a nutshell, not everything was in
17 place for a trial to start according to the rules.
18 In such circumstances, I decided to publish this study of mine,
19 and I issued strict instructions to my associates not to mention in this
20 study the names of the protected witnesses, which is stated in the
21 preface to the book.
22 In the study, which is from 477 -- actually, from 77 to 330 and
23 something page - I have no time now to look for it - not a single name of
24 a protected witness is mentioned, but all their statements have been
25 refuted as false.
1 I would like to bring to your attention that there are such
2 incredible statements. For example, that at the rallies of the Serbian
3 Radical Party I publicly advocated the killing of all the children from
4 mixed marriages, and other monstrous things. You know, I have already
5 published a 1.000 book [as interpreted] called "The Hague
6 Instrumentalisation of False Witnesses," which contains a huge number of
7 witness statements who gave statements, false statements, under the
8 pressure from the Prosecution but refused to appear live.
9 Please do not go into private session, because this has nothing
10 to do with this trial. This book was mentioned on many occasions during
11 the main trial.
12 In addition to this -- the publication of this study, I also gave
13 instructions for all the documents that we managed to get hold of be
14 published, which indicates the true nature of the events that were taking
15 place in this specific location mentioned in the indictment. I am not
16 mentioning the name of the location. This contains interviews with
17 people who were, in a certain way, involved in these events, as well as
18 interviews with members of the state security service, police, local
19 residents. There are also statements given to the police, police
20 information, and court papers.
21 Through this voluminous documentation, which contains 900 pages,
22 I have portrayed virtually everything that happened in this location,
23 literally everything. Nothing was omitted.
24 The three witnesses mentioned here were public figures by virtue
25 of their offices or their profession. They were well known in their
1 community, and it was impossible in this other portion of the
2 documentation to avoid the mentioning of their names and their
3 involvement in certain events.
4 I had no right, as far as the documents that we provided through
5 research on the ground, I had no right to intervene with what they
6 contained or to falsify them in any way. They were put in proper order
7 and published as such.
8 When the Prosecutor said -- when -- when the Prosecutor says that
9 a witness can be identified on the basis of the contract on swapping
10 flats, he extracted only one portion of the contract. However, there are
11 a whole array of other contracts on swapping flats or residences in which
12 the contracting parties are not witnesses in this trial, because I
13 published in my book all the contracts that we managed to obtain, which
14 is a testimony which refutes the allegations from the indictment.
15 Whether my objective was to publicly disclose the names of
16 protected witnesses and thereby intimidate them, Judges, you know that
18 dictatorship and the Communist Marsal Tito and his successors. This
19 Communist regime put a ban, a judicial ban on seven of the books that I
20 wrote. I have to reluctantly admit that the prosecutors in those trials
21 against me had prepared themselves much thoroughly than this Prosecutor
22 of the International Criminal Tribunal has done. They had read all the
23 books from cover to cover, and according to the practices then in place,
24 did their job, but were -- they were much better prepared.
25 We have here a Prosecutor who has no idea what this book
1 contains. He is making arbitrary allegations that my intention was to
2 disclose the names of protected witnesses and therefore intimidate them.
15 Therefore, it was not my aim to intimidate and instil fear into
16 protected witnesses or to make their names public. It was my aim to
17 uncover the (redacted) was a construed one based
18 on false accusations, on false statements, and that's what I've proved
19 during the proceedings and trial against me. Not one stone has been left
20 standing of any of the accusations or anything else, and that's why the
21 whole trial has been blocked. And the Trial Chamber doesn't know how to
22 deal with this problem and get out of this cul-de-sac, and they cannot
23 acquit me, and they cannot act upon the requirements of the Prosecution.
24 So it's checkmate.
25 How long this will go on, I don't know. We'll see. And it's not
1 important. I have patience myself, seven years and then another seven
2 years. I can stay here another 70 years if need be.
3 In this book, the Prosecutor says there were elements which can
4 identify the protected witnesses. In principle, that is true, but you
5 have lots of experience in the other trials that you have taken part in,
6 gentlemen Judges, and in each of those trials it is possible, if it was
7 in open session or public session, to identify a protected witness whose
8 voice has been distorted, whose image has been distorted, who is
9 testifying under a pseudonym, from the environment he comes from, on the
10 basis of the subject to which he is testifying.
11 Mr. Kwon at the time was the Judge in the Milosevic trial, for
12 example. I don't think Mr. Bonomy was in the trial yet when Milan Babic
13 testified as a protected witness. I followed the trial in Belgrade
14 immediately recognised Milan Babic on the basis of what he was saying in
15 the courtroom. Several days later the protective measures were lifted
16 and Milan Babic continued to testify in open session, publicly.
17 So that is all possible by deduction and by using your
18 intelligence. Experts, 20 years ago, established that my IQ was above
19 240. Perhaps these experts are telling lies.
20 Now, how -- what's Mr. MacFarlane's IQ? I don't know. Before
21 this trial I thought his IQ was much higher than I think it is now, but
22 of course I don't want to say anything derogatory about anyone, because
23 he has raised the question of intelligence and the capabilities of an
24 average man, so that brings me to these associations without wishing to
25 insult him.
1 Now, who could have concluded who this was about when it came to
2 three protected witnesses in reading this book? Well, ask yourselves,
3 Who has had the time and put in the effort to read a book that is
4 1.200 pages long just to have the names of protected witnesses disclosed?
5 That's not what you would have done. You print an anonymous flyer, an
6 anonymous pamphlet and nobody knows who the author of it is, and you
7 disclose the names and then you call in people to intimidate the
8 witnesses, to instil fear. In Haradinaj, for example, protected
9 witnesses were killed. In no Serb trial did you have anything of that
10 kind. How many witnesses were killed in the Haradinaj case, ten?
11 Dozens? Who knows?
12 The Prosecutor goes on to say that this is a very serious problem
13 in this case. That's just not true. It's absolutely not true. There is
14 no problem here. All we have here is the Prosecutors thinking up this
15 problem when they faced a fiasco in the main trial.
20 (redacted) The book was being sold at these public promotions and was later
21 distributed free of charge, and you can download any copy free of charge
22 from my internet site, because I don't charge on my site.
23 So a lot of time went by until this idea came to the Prosecutor
24 that he should take some steps, and now the logical question arises of
25 why is something being undertaken at precisely this point; whereas for a
1 year and a half nothing was done about it, and now suddenly this has been
2 brought up.
3 The Prosecutor is facing a problem, and to find their way out of
4 the problem they want to prevent me from defending myself and to impose
5 counsel on me who would not represent my interests but would represent
6 the interests of the Prosecutor and the USA, NATO, the European Union,
7 and so on and so forth. That's the crux of the matter. And it is for
8 that reason that the Prosecutor suddenly needed to proclaim me and have
9 you proclaim me guilty here so that this would be a legal groundwork in
10 order for them to be able to say that I have abused my right of
11 self-representation in my own trial.
12 It doesn't matter what the sanctions are. You have to agree with
13 respect to the judgements that are meted out in the main trials. The
14 sanctions for contempt of court are symbolic. For somebody who has been
15 in prisoner already for seven years, they are even ludicrous.
16 What do I care about the sanctions that you can impose against
17 me? But what is essential and vital is that you proclaim me guilty so
18 that then the Prosecutor can come out with a new request on the basis of
19 your judgement, and it can say the Trial Chamber has established that I
20 violated the protective rights of witnesses and therefore abused my role
21 as defending myself, and so forfeited my right to continue to defend
22 myself. That's what they want to achieve. And now when we come to the
23 Defence case, when it's the turn of the Defence case, you would like to
24 have me being represented by a Prosecution spy, whereas I should act as a
25 cretin my own trial.
1 There are very rare trials where the accused can take part in
2 questioning of witnesses, and you know that better than me. The accused
3 that makes the wrong decision and takes on counsel means that he's left
4 his fate into the hands of others, and he can say good-bye to his future.
5 All he can expect is how -- what sentence will be meted out to him in
6 this ideal cooperation between the Prosecutor and Defence counsel.
7 Well, not all Defence counsels are like that but most of them are
8 because it is the Tribunal who pays for Defence counsel, not the accused.
9 And so they're subject to the will of those people in the OTP, because
10 what the Defence counsel are afraid of are being -- is being deprived of
11 a job here. They're not interested in anything else.
12 And another point is very important in these concerns.
13 Mr. MacFarlane does not have a shred of evidence to show that any one of
14 these three protected witnesses, after the publication of my book, had
15 any kind of problems, that somebody provoked them, intimidated them,
16 threatened them, or anything of the kind, took measures of physical
17 assault against him or his family, their property, or whatever. None of
18 that happened.
19 And I'll tell you one more thing. All three, all three protected
20 witnesses have already appeared in public several times. They have given
21 interviews to papers where they presented similar things, just like what
22 they said in their statements to the Prosecutor.
23 So where's the problem then? Where's the intimidation, and why
24 would I want to intimidate them in the first place, because I dealt with
25 them very well here in the courtroom. I completely overturned their
1 testimony. So why would I have the need to intimidate them?
2 My arguments -- the force of my arguments was so strong that
3 there was nothing left of the indictment, not a stone, and in private
4 conversation, if they trust you, people will tell you that. Your
5 colleagues from the Prosecution will tell you that, will own up to that.
6 I'm quite sure of that, because there's public opinion within the
7 Tribunal itself which is fully conscious of the fact that the OTP and the
8 Prosecutor in my trial has experienced a complete fiasco, and now the
9 trial is at a standstill and we're waiting for something. What we're
10 waiting for, we're waiting for you to impose counsel on me so that then
11 he can act in court instead of me, and of course everything would evolve
12 quite differently then. Then the counsel would kow-tow to the Prosecutor
13 and every false witness, and would to a maximum extent collaborate with
14 the Prosecutor.
15 You see, here Mr. MacFarlane claims that I wanted to hide
16 something. I didn't want to hide anything. I didn't want to pull the
17 wool over anything there. And in the study that my associates compiled,
18 the identity of a protected witness is not disclosed anywhere.
19 If you read the whole book and if you read it in -- paying great
20 attention, and then if somebody were to draw your attention, somebody
21 from outside to draw your attention to the fact that in the multitude of
22 facts over 1.200 pages, there are three particular witnesses mentioned.
23 Now, 1.200 pages is many more newspaper pages, which is 2.400 journalist
24 pages. So only if somebody has indices in advance pointed out to him
25 would he be able to come to the conclusions that Mr. MacFarlane has come
1 to. Not everybody can do that. Not everybody would be in a position to
2 do that.
3 And I ask you, who is it that -- which reader can concentrate his
4 efforts so much to be as concentrated from page 1 to all 1.200 pages?
5 Only somebody with a great deal of experience. Not everybody is capable
6 of reading in that form and applying their concentration that much. It's
7 not a question of logical deduction and conclusion. It is a question of
8 getting to grips with this vast material before you and to extract the
9 portions that the Prosecutor wished to extract and point to.
10 Now, since the Prosecutor has not read this book, other people
11 have written down the gist of what could be important, and then that
12 seems to be the backbone -- it would appear that this was the backbone of
13 the book, the skeleton of the book, but that's not true either.
14 All the incidents that took place in a certain location, it would
15 appear, were taken to court in Serbia
16 that false testimony was given to the OTP, because the man in
17 statement two, the Prosecutor says one thing, whereas the court documents
18 and files tell us something quite different. And it is these court files
19 and court documents that are being presented here, whereas the Prosecutor
20 has read none of it.
21 Then the Prosecutor goes on to say that I would be satisfied in
22 seeing that several thousand copies were downloaded from my site. Well,
23 that's what every author would like to see, that his book is published in
24 many, many copies, but the point is that this book is too expensive for
25 me to print a new edition.
1 The first edition was sold under cost price, or it was
2 distributed free of charge. A second edition would be far too expensive.
3 We can't distribute that many copies free of charge. And if somebody
4 wants to read the book, they can download it from my site. And this was
5 published in the Serbian Radical Party's site, and it has a party
6 character. And the Serbian Radical Party, it is in its interests, in the
7 interests of the Serbian Radical Party to prove to the public and to
8 prove to a professional public opinion, to which these books are oriented
9 in the first place, that one of the affairs that are mentioned in the
10 indictment, the indictment raised against me as president of the Serbian
11 Radical Party has been completely construed, artificially construed. And
12 as I say, the Serbian Radical Party is the publisher of this book and I
13 am the exclusive author of this book, and now people who acted upon my
14 instructions acted strictly as I instructed them to do. Therefore, I'm
15 responsible for each and every page to be found in this book. And
16 there's no doubt about that, and we needn't have wasted time on matters
17 of that kind at all.
18 Well, now, the Prosecutor referred to my statement about people
19 who are clever and who can understand. This is not only about
20 cleverness. It's about professionalism. Only a person who understands
21 some basic notions and categories can read this book. This book is not
22 for general public. The man in the street can be fascinated by the cover
23 of this book and the number of pages, but an ordinary person doesn't have
24 enough patience to read the whole book.
25 A lawyer who is particularly interested in this specific field
1 will embark on reading this book, but this is a very small number of
3 If my intention was to intimidate the witnesses, I would have
4 instructed someone to write a pamphlet printed in 10 or 20 pages and
5 distributed it around. Even the pamphlet could have contained an
6 invitation to have these witnesses attacked or to have something
7 undertaken. There was nothing like that with me. During the whole
8 process none of this took place. But this is not the first time that
9 The Hague Office of the Prosecution wanted to fabricate a trial against
10 me for contempt of court.
11 Let me remind you -- perhaps Judge Parker may remember this
12 because he was then the president of the Chamber, that back in 2005 the
13 OTP, based solely on one telephone conversation that I made in which I
14 said to my friend in Serbia
15 secret witness in some of the trial and that he is doing some job in your
16 municipality. Please try to get rid of this," and things to that effect.
17 Now, after the OTP had been informed by the detention
18 administration, ordered a ban to be imposed on me in terms of all
19 telephone calls and all visits, under suspicion that I had disclosed the
20 name of a protected witness. For the full two months I had no contact
21 with the world outside. I didn't receive a single visit from my family.
22 My father-in-law died during that period, and also my sister-in-law's
23 husband also died, and I had no contact with anyone.
24 After the two months expired, the OTP decided not to pursue and
25 to prosecute me for contempt of court, although they had claimed that
1 this man was a protected witness in my case, and they had never informed
2 me about this.
3 You know when I was informed about this, that this man could
4 appear as a witness in my case? Only recently, around the new year,
5 never before that. I had never received his statement. There was no
6 statement, for that matter, given by him. The first statement he gave to
7 the OTP was in December last year, nearly three years after the event
8 that I have just described. Yes, it is true that he had been
9 interrogated as a suspect.
10 I'm just telling you that this is an illustration of similar
11 attempts by the OTP for me to be sentenced for contempt of court and
12 therefore to deprive me of the right for -- to self-representation. That
13 was their main driving force.
14 After they had failed to achieve that, they resorted to some more
15 brutal method, and you know how this ended in 2006 and how the whole
16 Trial Chamber had to be replaced.
17 There was another attempt on the part of the Prosecution to
18 accuse me of contempt of court. I presume that Judge Parker will
19 remember that as well, but I had no idea what this was all about.
20 JUDGE KWON: Mr. Seselj, how much would you need? How much
21 longer do you need to conclude?
22 THE ACCUSED: [Interpretation] If you would like us to have a
23 break, we can take a break. I cannot give you an exact estimate, but I
24 will go with your request. You tell me how much you need until the end,
25 but I will of course not overstep the time allocated to the OTP. You
1 please warn me if I have already overstepped the line, but if I'm given
2 time, I would like to say a few things more.
3 So if you think this is the time for the break, we can take a
4 break, and after that, please tell me how much time you're going to give
5 me. I will speak for as long as you grant me.
6 JUDGE KWON: We'll take a break, and I'll -- I would like you to
7 conclude after which -- to conclude in half an hour after the break.
8 THE ACCUSED: [Interpretation] I am quite satisfied with half an
10 JUDGE KWON: Twenty minutes.
11 --- Recess taken at 5.30 p.m.
12 --- On resuming at 6.04 p.m.
13 JUDGE KWON: Mr. Seselj, please continue.
14 THE ACCUSED: [Interpretation] Before the break I started talking
15 about another instance when the OTP tried to institute proceedings for
16 contempt of court. That took place in 2005. But even today I have no
17 idea on what this request had been based. When everything came to a
18 close, the Trial Chamber, including Judge Parker, instructed the
19 representative of the registry to inform me, in one sentence, that there
20 had been a request by the Prosecution to institute proceedings for
21 contempt of court and that the Trial Chamber had dismissed this question.
22 Therefore, that was a third attempt on the part of the OTP to institute
23 such proceedings with the sole purpose of creating artificially illegal
24 basis for depriving me of the right to self-representation.
25 I don't know, Judges, how much you are aware of the fact that
1 many other forms of torture had been exercised and applied to me during
2 the past seven years. Towards the end 2003 until July 2004, for seven
3 months I was deprived, unlawfully, any telephone conversations or any
4 contacts and visits by my family with the explanation that my political
5 party had won a lot of votes in the election and that in these telephone
6 conversations and through these visits I could influence the
7 post-electoral situation in Serbia
8 Two days ago something totally incredible happened. The
9 detention unit administration forbidden -- has forbidden me to go out for
10 a stroll. That happened on the 27th, 28th and 29th of May. You know,
11 Judges, that this is absolutely unacceptable and impermissible. Even
12 those on a death row have a right to take a stroll for an hour or two.
13 What happened? Two days ago when I went out for a walk in the
14 courtyard that has no greenery in it, where there is no sunshine during
15 wintertime, we have to pass the room for collective visits and two
16 offices where lawyers are working. I saw another co-prisoner of mine,
17 and I just shouted at him, "Hold on, general," and I mentioned his name.
18 One of the supervisors of the guards in civilian clothes intervened and
19 he got embroiled with me in a verbal argument.
20 JUDGE KWON: Mr. Seselj, I'm wondering what relevance this has to
21 do with this case. Could you concentrate on this case.
22 THE ACCUSED: [Interpretation] The relevance is because I am
23 focussed on this case and I think this has been devised in order to
24 psychologically destabilise me before the trial. No one can destabilise
25 me psychologically but those guys there obviously don't know that,
1 because the new governor of the detention unit doesn't know that, and I
2 had to tell you this story.
3 You know, Judges, that no one can have his right to have a stroll
4 be restricted. I know that I am the worst detainee in Scheveningen. I
5 admit that I am the most undisciplined one, but you cannot impose a
6 disciplinary measure such as the deprivation of the right to have a walk
7 outside. This has been an unprecedented occurrence, and this happened
8 only two days ago before this case, and it's up to you to decide why this
9 happened and why this totally unlawful step was taken.
10 Just a few more words about the Prosecution case. On several
11 occasions, Mr. MacFarlane alleges that it seems that I had issued
12 instructions. It seems I had made a conscientious decision to avoid the
13 mentioning of the name of a witness. What does the term "it seems" mean
14 in criminal law? Is that a serious statement? It seems that I have
15 committed a crime, and based on that, I'm now on trial because that is
16 what it seems.
17 There is no such thing as "it seems" in the criminal law. You
18 either have evidence or you don't have evidence when it comes to criminal
19 law. The criminal law cannot tolerate any guesswork. The Prosecutor
20 here is guessing all the time. Why? My impression is that he has a
21 preconception in his mind that his case will be successful and therefore
22 he can afford this luxury to himself to make a guesswork. A prosecutor
23 who is not convinced in advance of the outcome of the proceedings will
24 not allow such an approach. He will leave it to the Trial Chamber to
25 decide, and he will rely on the professional assessment by the Chamber
1 about his conduct in the courtroom.
2 He also said that with my associate, I put together a -- a
3 puzzle, a jigsaw puzzle, in order to avoid criminal proceedings. Now,
4 I'm asking you, who in the whole wide world is capable of putting
5 together such a complicated jigsaw puzzle? If you do it artificially,
6 you can't make it. It cannot fit together. But when you put documents
7 in a systematic fashion, put them together systematically, that are so
8 convincing then it might look a work of genius or a work of art. In
9 fact, this is not the case either. This is simply a very successful
10 exposure of a plot and conspiracy, because everything that relates to
11 this particular case is a conspiracy.
12 You know, Judges, that these events that took place in this
13 particular location, no one else, apart from me, has ever been charged
14 for. How does that fit to the joint criminal enterprise and everything
15 else? No one here can offer any answers to these questions.
16 The Prosecutor went on to say that I was successful in putting
17 together this jigsaw puzzle but that that had actually been my plan all
18 along. It is obvious from the entire book that my sole plan was to
19 unmask and expose this conspiracy. There is nothing in the book that
20 indicates that my plan had been to intimidate the witnesses.
21 There's another thing that struck me. I am intentionally
22 avoiding to comment all the details from Mr. MacFarlane's case because
23 simply I want to avoid going into private session, because I'm not
24 interested in that.
25 Of all the public principles that the civilised court in criminal
1 proceedings adhere to is the principle of public access, because I rely
2 on the principle that you are putting me on trial and the public is
3 putting you on trial. Let me give you just one detail.
4 In case and in his presentation, Mr. MacFarlane listed the
5 methods that I used in order to reveal the identity of protected
6 witnesses. Among other things, he alleges that I described one of these
7 witnesses as a notorious alcoholic and thereby I revealed his identity.
8 So this is possible again.
9 Since I don't intend to use up the whole full hour that you
10 allotted to me, I will conclude in this way in this case for contempt of
11 court. The existence of any criminal offence or the substance of a crime
12 has not been established in this case. The Prosecutor failed in every
13 respect to prove mens rea, that is to say, my intent to reveal the names
14 of the protected witnesses for the purpose of intimidating them. There
15 is no such thing.
16 It is now up to you to decide, either based on your conscience or
17 other interests that you might have, this is your personal matter, and I
18 said what I wanted to say to you.
19 JUDGE KWON: Thank you, Mr. Seselj.
20 [Trial Chamber confers]
21 JUDGE BONOMY: Mr. Seselj, if I understood you correctly, one of
22 your submissions suggested that the three witnesses have given interviews
23 to press on some occasion in terms similar to the statements to the
24 Prosecution. What material is there to support that submission?
25 THE ACCUSED: [Interpretation] Well, there are the newspaper
2 JUDGE BONOMY: Are you then able to submit to us in writing,
3 after you return to the detention unit, copies of these newspaper
5 THE ACCUSED: [Interpretation] As we're in open session now, I can
6 say publicly, or I can give instructions to my case manager,
7 Marina Raguz, and my legal advisor in these proceedings, Dejan Mirovic,
8 to supply me on Monday, or, rather, to supply to you on Monday -- to send
9 by e-mail to the Registry photocopies of some of those interviews from
10 the press.
11 JUDGE BONOMY: Thank you.
12 JUDGE KWON: Mr. MacFarlane, do you consider it necessary for you
13 to respond to Mr. Seselj's submission?
14 MR. MacFARLANE: No, I don't believe it's necessary. Thank you.
15 [Trial Chamber confers]
16 JUDGE KWON: The Chamber thanks the amicus Prosecutor,
17 Mr. MacFarlane, and the accused for their submissions. We reserve our
18 decision and take the case under our advisement and issue our decision,
19 judgement, in due course.
20 We rise.
21 --- Where upon the Rule 77 Hearing adjourned
22 at 6.19 p.m.