1 Thursday, 29 April 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.31 p.m.
5 JUDGE HALL
7 THE REGISTRAR: Thank you and good afternoon, Your Honour. This
8 is case number IT-03-67-R77.3, the Prosecutor versus Vojislav Seselj.
9 JUDGE HALL
10 Mr. Seselj, can you hear the proceedings in a language that you
12 THE ACCUSED: [Interpretation] Yes. [In English] But I didn't --
13 I didn't receive a translating.
14 JUDGE HALL
15 THE ACCUSED: Can you repeat it?
16 JUDGE HALL
17 can hear -- hear me in a language that you understand.
18 THE ACCUSED: [Interpretation] Well, I heard you before, but I
19 wasn't receiving the interpretation. I need to receive the
20 interpretation in Serbian, and I'm receiving it now.
21 JUDGE HALL
22 May we have the appearances from the -- on behalf of the
23 Prosecution, please.
24 MR. MacFARLANE: Thank you, Your Honour. My name is
25 Bruce MacFarlane. I'm an attorney from Canada appearing as the
1 amicus Prosecutor in this matter.
2 JUDGE HALL
3 Mr. Seselj, do I correctly understand that you represent yourself
4 for these proceedings?
5 THE ACCUSED: [Interpretation] Yes, and I informed the Registrar
6 on time that I would be representing myself.
7 JUDGE HALL
8 The -- before we proceed further, the first thing that I would
9 do, Mr. Seselj, is to remind you that under the Statutes and Rules of the
10 Tribunal you have the right to remain silent at all times during these
12 I will first of all outline the background to this case on the
13 charge contained in the Order in Lieu of Indictment against Mr. Seselj.
14 During the trial of Mr. Seselj before another Chamber for crimes
15 allegedly committed between 1991 and 1993 in Croatia, Vojvodina and
16 Bosnia-Herzegovina, the Prosecution filed a confidential and ex parte
17 motion under Rule 77 alleging breaches of protective measures by
18 Mr. Seselj and his Defence associates in three books allegedly authored
19 by him. On the 13th of March, 2009, the President of the Tribunal
20 directed this Trial Chamber to examine this motion.
21 On the 25th of August, 2009, the Trial Chamber decided that it
22 did not have sufficient grounds to proceed by issuing an Order in Lieu of
23 an Indictment against Mr. Seselj for having reprinted confidential
24 information in the first of the three books, while the second of the
25 three books disclosed information in knowing violation of an order of a
1 Chamber and therefore constituted contempt under Rule 77(A)(ii). The
2 Chamber was not persuaded that in the present circumstances this
3 disclosure attained such a level of gravity that it should exercise its
4 discretion pursuant to Rule 77(D) to instigate proceedings against
5 Mr. Seselj for having reprinted this information.
6 While they had sufficient grounds to believe that the third of
7 three books disclosed confidential information in knowing violation of an
8 order of a Chamber and therefore may have constituted contempt under
9 Rule 77(A)(ii), the Chamber was not persuaded that in the present
10 circumstances this disclosure attained such a level of gravity that it
11 should exercise its discretion pursuant to Rule 77(D) to instigate
12 proceedings against Mr. Seselj. While it had reason to believe that at
13 the time the third of the three books were published Mr. Seselj knew that
14 none of the -- that nine of the 13 of the individuals referred to in this
15 book were protected Prosecution witnesses and that they had been granted
16 protective measures, the Chamber did not have sufficient grounds to
17 believe that he may be in contempt of the Tribunal for having disclosed
18 information in the third book that might identify or lead to the
19 identification of protected Prosecution witnesses as such in
20 contravention of orders issued by the Seselj Trial Chamber. The Trial
21 Chamber indeed found that the information provided in this book only
22 referred to those individuals as Defence witnesses.
23 THE INTERPRETER: Could Your Honour kindly slow down for the
24 interpretation. Thank you.
25 JUDGE HALL
1 contain any references to the pseudonyms assigned to them. The same
2 reasoning applied to Mr. Seselj's associates.
3 On the 17th of December, 2009, the Appeals Chamber of the
4 Tribunal, ruling on an appeal by the Prosecution, found that the evidence
5 before the Trial Chamber gave rise to a prima facie case that Mr. Seselj
6 had knowingly disclosed the identifying information of 11 witnesses in
7 violation of the Seselj Trial Chamber's orders. Therefore, no reasonable
8 trier of fact could have concluded that insufficient grounds existed to
9 prosecute Mr. Seselj pursuant to Rule 77(D) of the Rules for having
10 disclosed the said information. The Appeals Chamber therefore ordered
11 the Trial Chamber to proceed against Mr. Seselj for contempt by issuing
12 an Order in Lieu of Indictment to prosecute him for having disclosed
13 information which may identify the 11 protected witnesses in violation of
14 the Seselj Trial Chamber's orders.
15 On the 3rd of February, 2010, the Trial Chamber issued an Order
16 in Lieu of Indictment, which I will refer to as the indictment, and
17 ordered that an amicus curiae Prosecutor be assigned, and on the 2nd of
18 March, 2010, the Deputy Registrar appointed Mr. MacFarlane as amicus
19 curiae Prosecutor in this case.
20 Mr. Seselj, according to the indictment, you are charged with one
21 count of contempt of the Tribunal, punishable under Rule 77(A)(ii) of the
22 Rules, for having disclosed information which may identify 11 protected
23 witnesses in violation of orders of a Chamber in a book.
24 Before we proceed further, Mr. Seselj, could you confirm for the
25 record that you are the Vojislav Seselj who is named in this indictment.
1 THE ACCUSED: [Interpretation] Yes. I am Dr. Vojislav Seselj,
2 university professor and the greatest enemy of The Hague Tribunal.
3 JUDGE HALL
4 I have been informed that you have received the indictment in
5 your own language. Can you confirm this?
6 THE ACCUSED: [Interpretation] Yes, I did receive the indictment,
7 but I did not receive some very important attending documents which
8 otherwise the Prosecutor did receive. It's a copy of the request of the
9 26th of January, a copy of the Decision of the Trial Chamber, the appeal
10 lodged by the Prosecution. I did not receive the Decision pursuant to
11 that appeal on the part of the Prosecution and all the attached material,
12 and according to a court order of the 3rd of February, 2010, the
13 Prosecutor did receive all those documents. So at the starting point,
14 we're not equal parties. And if you had planned to hold my initial
15 appearance today about guilt or not guilt, I can tell you here and now
16 that there will be none of that until I receive those documents.
17 I have understood everything you read out. I received the order.
18 However, without the attending documents, I refuse to plead at all.
19 JUDGE HALL
20 wish to consult with the Legal Officer.
21 [Trial Chamber and Senior Legal Officer confer]
22 JUDGE HALL
23 comment on the point that has been taken by Mr. Seselj?
24 MR. MacFARLANE: Yes. Thank you, Your Honour. I received the
25 materials after they were prepared by staff and spent a fair bit of time
1 going through the materials to assess which of them fell within Rule 66
2 in terms of disclosure, and a package of materials pursuant to Rule 66
3 was prepared and -- and in fact has been provided to the accused today.
4 So I believe that his queries have been satisfied, but he has a package
5 that's probably about two and a half to three inches thick of materials.
6 JUDGE HALL
7 provided to him today. Do you agree with his implied application that --
8 although from what he said, I didn't appreciate that he's received them,
9 but what -- the recency of the receipt by him, do you agree with his
10 implied application that he would need time to familiarise himself with
11 that material before he proceeds further?
12 MR. MacFARLANE: Well, certainly there is a fair volume of
13 material has been provided. Under the Rules, the normal rules provide
14 that Rule 66 disclosure must take place within 30 days of the initial
15 appearance. In contempt matters it's within ten days. So that speaks to
16 the timing of the disclosure. It was only recently that we were able to
17 put the package together. But I certainly agree that there is a fair bit
18 of material for him to go through, and he will, I expect, need some time
19 to take a look at it. Whether that should precede the plea or precede
20 trial, I suppose, is the arguable point.
21 JUDGE HALL
22 THE ACCUSED: [Interpretation] May I say something? May I say
23 something, Mr. Hall?
24 JUDGE HALL
25 THE ACCUSED: [Interpretation] What Mr. MacFarlane has just said
1 is simply not true, or in fact, it's just half true. And you, Mr. Hall,
2 as an experienced Judge, know that half-truths are the worst possible
4 Before coming into the courtroom here, I really did receive a
5 whole heap of documents and as Mr. MacFarlane described it here.
6 However, I did manage to leaf through all that material, and in that
7 material I can assure you none of these documents are contained there,
8 the ones that are stipulated in the 3rd of February Trial Chamber
9 Decision, which are the ones that are most important. There's none of
10 that here. Not the request of the 26th of January filed by the
11 Prosecution, nor the Trial Chamber Decision rejecting contempt
12 proceedings, nor the Prosecutor's appeal, nor the Decision by the
13 Appeals Chamber, nor any of the other documents mentioned there on that
14 list. And we can ask one of the guards here to go to the cell in court,
15 to bring in the documents, and then you'll see that I'm right and that
16 I'm telling the truth.
17 So Mr. MacFarlane, in presenting a half truth, is in fact
18 presenting the worst possible untruth, because I still haven't received
19 the materials which are essential because for me to understand the nature
20 of the crime I'm being accused of, I need to have the request from the
21 Prosecution qualifying the crime first of all, then the Trial Chamber
22 Decision, and allegedly the crime does not require criminal proceedings,
23 and then I need the Appeals Chamber Decision and the appeal by the
24 Prosecutor. And I have none of that because it's a legal issue and we
25 need to see legal argument and present legal argument here.
1 Now, what Mr. MacFarlane provided me with, they're some of my own
2 motions, statements by people given to my Defence team that I published
3 in my books and so on and so forth. So fairly unimportant for the legal
4 argument that we're going to hold here.
5 JUDGE HALL
6 procedural steps which must be followed in this exercise the -- among
7 which is the right that you have to -- for a ten-day delay before you are
8 to enter your plea to the indictment, I would invite the Registrar to
9 read the indictment to you today, and apart from that -- from what you
10 would have said earlier, you have -- you would not be entering a plea
11 today in any event, and as I said, under the Rules you would have had --
12 you would have been allowed a minimum of ten days in order to do that.
13 But for other reasons which I will also come to before we adjourn today,
14 the -- those concerns which you have raised in terms of being able to
15 familiarise yourself with the materials that you have received and for
16 the resolution of the question as to whether you have received everything
17 that you are entitled to receive, we needn't delay such of the exercise
18 as can be done today by means of not having the indictment formally put
19 to you now, which I would invite the Registrar to do.
20 THE REGISTRAR: Thank you, Your Honour.
21 Order in Lieu of an Indictment.
22 Vojislav Seselj, born in 1954 in Sarajevo, Republic of Bosnia and
23 Herzegovina, and currently on trial before the Tribunal, is charged with
24 one count of contempt of the Tribunal pursuant to Rule 77(A)(ii) of the
25 Rules, as detailed below:
1 Factual allegations.
2 In its Decision of 1 June 2005, 30 August 2007 and
3 16 October 2007, the Trial Chamber trying the case of
4 Prosecutor v. Vojislav Seselj ordered various protective measures in
5 respect of witnesses. In its Decision on Prosecution's Third and Fourth
6 Motion for Protective Measures for Witnesses During the Pre-trial Phase
7 with Confidential and Ex Parte Annex of 1 June 2005, the
8 Seselj Trial Chamber "assigned a pseudonym for use when referring to the
9 protected witness in public until such time when the witness is called to
10 testify and protection set forth in the present Decision shall apply to
11 the protected witnesses until further order."
12 In its Decision on adopting protective measures of
13 30 August 2007, the Seselj Trial Chamber assigned pseudonyms in respect
14 of ten of the remaining eleven witnesses and also prohibited the
15 disclosure of "the names, addresses, places of residence or any other
16 information which may identify the protected witnesses, and from
17 disclosing this information to any third party except when this
18 information is directly and specifically necessary for the preparation
19 and the presentation of the Defence case."
20 Sometime after a book authored by Vojislav Seselj was published.
21 The book contains numerous references to witnesses, including their real
22 names, occupation, and places of residence which enable the
23 identification of these witnesses.
24 At the time of the publication of the book, Vojislav Seselj had
25 knowledge of the orders adopting protective measures in respect of, and
1 orders specifically prohibiting the disclosure of information which may
2 identify the protected witnesses.
4 By his acts and omissions, Vojislav Seselj committed contempt of
5 the Tribunal, punishable under this Tribunal's inherent power and
6 Rule 77(A)(ii) of the Rules, for having disclosed information which may
7 identify the 11 protected witnesses in violation of orders of a Chamber
8 in a book.
9 Thank you.
10 JUDGE HALL
11 Mr. Seselj, having regard to what you have previously stated,
12 should the record show at this stage that you decline to enter a plea
14 THE ACCUSED: [Interpretation] Yes. I decline. Not because the
15 indictment is not clear to me but because I did not receive the important
16 attending documents on the basis of which this document was written.
17 So this is a demonstrative action, and I'm demonstrating my
18 protest in this way. I could enter a plea today, but I'm not going to do
19 so because the Trial Chamber acted unconscientiously, because it should
20 have provided me with those documents, and then the Prosecutor did so as
21 well because they did not provide me with the documents, fully conscious
22 of the fact that they were very important to me.
23 JUDGE HALL
24 At this stage, I'm also obliged to point out to you that you have
25 a right to legal representation, and again, would you confirm, as you
1 indicated earlier, that you've elected to represent yourself.
2 THE ACCUSED: [Interpretation] Yes. I will certainly represent
3 myself, and I would like to tell you something else, so bear that in mind
4 as well. Can I say that before we adjourn?
5 JUDGE HALL
6 THE ACCUSED: [Interpretation] Do you want me to say what I have
7 to say straight away?
8 I protest, Judge, because of the violations of Rule 62, which
9 states that an accused must, without delay, be brought before a
10 Trial Chamber or a Judge after he is in the detention unit and accessible
11 to the court and once an indictment has been raised.
12 The indictment was raised against me on the 3rd of February, as
13 early as that, and on the 4th of February I was at the court's disposal.
14 The second decision taken by the Trial Chamber, Trial Chamber II,
15 was also taken on the 3rd of February, and my first appearance, my
16 initial appearance was scheduled for as late as the 20th of April.
17 Therefore, that makes it almost two months later. And this is a
18 precedent. Never -- it has never happened at this Tribunal. Usually the
19 accused waits only two to three days for an initial appearance, and as
20 far as I know, and I have been here quite a long time, more than seven
21 years, nobody waited three days for their initial appearance, whereas I
22 had to wait two months. And then, we get the decision for the
23 postponement, signed by Judge Kwon, and the reasons for the prolongment
24 were very prosaic. Mr. MacFarlane, because of the volcano, could not fly
25 in from Canada.
1 Now, you know, Judge that for a first -- for an initial
2 appearance Mr. MacFarlane need not have appeared himself. He could have
3 delegated somebody, any lawyer who could act before this Tribunal in his
4 name, but in the detention unit, rumour had it that my initial appearance
5 had been deferred, delayed. It was decided not to be on the
6 20th of April, because on that day, the 20th of April, a number of
7 Judges, Prosecutors and so on celebrated Hitler's birthday, the birth of
8 Adolf Hitler.
9 Now, I was astounded to learn of that, too, but here in this
10 Tribunal there seem to be people for whom Hitler is the -- still the main
11 ideological leader, and that is why they delayed my initial appearance.
12 And then they scheduled it for the 29th of April, that is to say, the
13 anniversary of Hitler's death. Why? Because there's this demon sector
14 at the head of this Tribunal, and failing to settle accounts with me for
15 more than seven years is trying to attract some black magic and it's like
16 voodoo, Judge, because I'm sure you don't know what is happening in this
17 European Union and what dark forces are afoot and at play. So they're
18 now invoking Adolf Hitler to come out from the underworld and breathe a
19 new life into them so that they could settle accounts with me, but I
20 don't think even Adolf Hitler would help them, because in the same way
21 that Orthodox Russia, in 1945, settled accounts with Adolf Hitler, I will
22 act likewise in 2010 or in one of the coming years. I will settle
23 accounts with Hitler's today's followers whose instruments are The
24 Hague Tribunal, and that's what I wanted to tell you.
25 JUDGE HALL
1 beginning, today's sitting marks the beginning of a process, and the --
2 there are three outstanding motions before this Chamber, one of which is
3 a motion for the disqualification of Judge O-gon Kwon and
4 Judge Kevin Parker, and it seems to be - and I would invite
5 Mr. MacFarlane to respond - that we have gone as far as we can go at this
6 stage because everything else must abide the determination of the motion
7 for the disqualification of the other two Judges who comprise this
9 MR. MacFARLANE: On receiving the motion for disqualification, I,
10 of course, reviewed Rule 15 again, and it would appear that the simple
11 allegation of an apprehension of bias in itself starts a process almost
12 lockstep, and so for that reason, I would agree that our ability to
13 proceed is -- is limited, and we -- if Your Honour would like further
14 submissions on next steps I'm prepared to do that, but it would appear
15 that the mandate today is closely circumscribed.
16 JUDGE HALL
17 Mr. MacFarlane --
18 THE INTERPRETER: Microphone for the Presiding Judge, please.
19 JUDGE HALL
20 preliminary matter which you would wish to raise before we take the
22 THE ACCUSED: [Interpretation] I would have something else, sir.
23 MR. MacFARLANE: There is one -- one matter and it arises from
24 the accused's comments a few minutes ago. Normally I would have simply
25 let them go, but I feel that it's important for me to address them
1 directly, because it would appear that the accused is subscribing to some
2 sort of conspiracy theory in terms of the timing of matters, and I feel
3 it very important to set the record straight. There are already
4 materials that have been filed in these proceedings that set this out,
5 but perhaps I could just very briefly comment for the purposes of the
6 record today.
7 The accused's conspiracy theory is simply wrong, period. The
8 initial appearance was originally scheduled for the 20th of April. I was
9 appointed as the amicus Prosecutor and simply could not cross the
10 Atlantic due to circumstances that I'm sure the Chamber is well aware of.
11 There were, in fact, a hundred thousand flights within Europe that were
12 cancelled during that five- or six-day period. I could not appear and I
13 do not have co-counsel appointed on the case, so it was either me or no
15 In terms of the selection of the new date, I'm not aware of any
16 other reason for the 29th to be set. That was set by the Tribunal. It's
17 my understanding that that was set having regard to the availability of
18 flights and the resumption of flights across the Atlantic and for no
19 other reason. So I wish to completely disagree with the suggestions, the
20 underlying suggestions, of the accused in that respect.
21 If there are other preliminary issues that the Chamber and
22 Your Honour would like me to address, I'm happy to do that, but those are
23 my comments at the moment.
24 JUDGE HALL
25 Mr. Seselj, are there any matters, preliminary matters, you that
1 would wish to raise today before we take the adjournment?
2 THE ACCUSED: [Interpretation] Yes. Yes, very briefly.
3 Mr. MacFarlane, I assume, knows that telephones work
4 nevertheless, even when planes were not flying. So he could have
5 delegated power of attorney by telefax to any qualified lawyer who can
6 appear before this court. He could have done that especially for the
7 initial appearance.
8 Secondly, as for my motion for the disqualification of two
9 Judges, it has 40 pages. It has been translated into English. I
10 received the translation the other day.
11 I would just like to point out two important arguments here. I
12 cannot be tried by the same Judge twice here in different cases. They
13 tried me in one contempt hearing, and they could try me again within that
14 same case if the Appeals Chamber were to send that case back. This is a
15 new case altogether. I cannot be judged by the same Judges all the time.
16 It's never happened here before. First of all, no one has been tried
17 several times, let alone by the same Judges.
18 Secondly, I published three books. One has to do with
19 Judge Iain Bonomy, who is no longer here so I'm not going to mention it.
20 These two books contain in their titles the names of Kevin Parker and
21 another Judge, O-gon Kwon. They are highly offensive, the titles of
22 these books, and I assume that if I were to utter the actual words, that
23 you would have the transcript redacted, so I'm not going to say what the
24 titles of the books are. However, these books in itself show that
25 there's a conflict of interest between myself and O-gon Kwon and
1 Kevin Parker. Even if they were the best persons in the world and if I
2 were the worst person in the world, after these two books, they don't
3 have the moral or professional right to appear in court in the role of
4 Judges who can adjudicate the case against me. That is so obvious, so
5 clear, that it is pointless to debate it any further.
6 I am convinced that it is absolutely impossible, from a legal
7 point of view, that they stay on this case.
8 So, Mr. Hall, I hope that at the earliest possible date you are
9 going to get two new colleagues so that you could try me as soon as
10 possible, no matter what the proceedings are like.
11 JUDGE HALL
12 [Trial Chamber and Senior Legal Officer confer]
13 JUDGE HALL
14 of the accused, and for reasons which have already been alluded to, we
15 will now adjourn the further -- the continuation of this initial
16 appearance to a date to be announced.
17 Thank you.
18 --- Whereupon the Initial Appearance adjourned
19 at 3.07 p.m. sine die.