Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Friday, 3 September 2010

 2                           [Status Conference]

 3                           [Open session]

 4                           --- Upon commencing at 2.21 p.m.

 5             JUDGE HALL:  I understand we had some slight computer problems

 6     which I trust we've resolved -- which are in the process of being

 7     resolved.

 8             Good afternoon to everyone.

 9             Would the Registrar please call the case.

10             THE REGISTRAR:  Thank you and good afternoon, Your Honours.

11             This is case number IT-03-67-R77.3, the Prosecutor v.

12     Vojislav Seselj.

13             JUDGE HALL:  Mr. Seselj, is it the position that you still

14     represent yourself?

15             THE ACCUSED: [Interpretation] Yes, and that is how it will be

16     until the end of the proceedings, this one and all the future ones that

17     would be conducted against me here.

18             JUDGE HALL:  Thank you.

19             And may we have the appearances on behalf of the -- the amicus

20     curiae, please.

21             MR. MacFARLANE:  Thank you, Your Honour.  My name is

22     Bruce MacFarlane.  I appear as the Amicus Curiae Prosecutor in these

23     proceedings, and this afternoon with me and throughout these proceedings

24     Lori Ann Wanlin, who is also a member of the Canadian Bar.  Thank you.

25             JUDGE HALL:  Thank you.

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 1             Well, this afternoon we are convened to conduct a

 2     Status Conference which is mandated by Rule 65 bis.

 3             On the 3rd of February of this year, the Trial Chamber issued an

 4     order in lieu of indictment, which I will refer to hereafter as the

 5     indictment, charging the accused with one count of contempt of the

 6     Tribunal, punishable under Rule 77(A)(ii) of the rules, for having

 7     inclosed in a book information which may identify 11 protected witnesses

 8     in violation of orders of a Chamber.  The Trial Chamber further ordered

 9     that an Amicus Curiae Prosecutor be assigned.  And on the 2nd of March of

10     2010, the Deputy Registrar appointed Mr. MacFarlane as Amicus Curiae

11     Prosecutor in this case.

12             On the 29th of April, the initial appearance was held, which was

13     followed by a further appearance on the 6th of May, where a plea of

14     not guilty was entered on behalf of the accused.  I've already referred

15     to Rule 65 bis which requires that a Status Conference be held within

16     120 days after the initial appearance for the following purposes:  A, to

17     organise exchanges between the parties so as to ensure an expeditious

18     preparation for trial; B, to review the status of the accused's case and

19     to allow the accused to raise issues in relation thereto; and, C, to

20     allow the accused to raise issues in relation to his mental and physical

21     condition and matters relating to detention.

22             Now, there are in this case a number of matters which are

23     currently pending before the Trial Chamber:

24             There is the motion for the disqualification of Judges O-Gon Kwon

25     and Kevin Parker submitted on the 12th of April, 2010, and filed on the

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 1     27th of April, 2010.

 2             There is the Prosecutor's motion to amend the order in lieu of

 3     indictment filed on the 23rd of April, 2010.

 4             The Prosecutor's motion for order to remove documents from the

 5     web site filed on the 26th of April, 2010.

 6             The accused's oral motion for access to additional documents

 7     raised during the initial appearance on the 29th of April, 2010.  And the

 8     Prosecutor's response to oral motion for access to additional documents

 9     filed on the 4th of May, 2010.  This was partially decided on at the

10     Further Initial Appearance in that the Trial Chamber did not accept the

11     submission of the accused that the Prosecution had disclosed insufficient

12     documents to him to enable him to enter a plea.

13             Each of these matters remains pending until the resolution of the

14     first motion, that is, until a decision has been issued on the motion for

15     disqualification of Judges Kwon and Parker, the Trial Chamber cannot

16     issue a decision on the three other pending matters.

17             I would raise an issue arising from the Prosecutor's response to

18     the accused's oral motion in which the Prosecutor sought an order lifting

19     of the ex parte status of select number of pages of an annex to a

20     previous submission of the Prosecution.  According to the Prosecutor,

21     this order is necessary in order to complete his disclosure obligations

22     pursuant to Rule 66(A)(i) of the Rules.

23             And so, Mr. MacFarlane, I ask whether you can confirm that this

24     is the only document which remains to be disclosed, in which your case

25     your obligation -- your disclosure obligations would be complete.

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 1             MR. MacFARLANE:  Your Honour, in view of recent developments in

 2     the Tribunal, I have very recently filed a motion with another Chamber

 3     for access to other documents.  It has been filed confidentially, so I

 4     don't think it appropriate for me to go much further than that.  And to a

 5     certain extent, whether and to what extent the disclosure is complete may

 6     or will depend on the Chamber's decision concerning my motion to amend

 7     the indictment because that has the effect of covering the electronic

 8     publication of the book as well.  So depending on the scope of the order

 9     in lieu of indictment, the disclosure obligations may or may not be

10     complete because of that.  So there are still issues in relation to

11     disclosure that need to be resolved.

12             JUDGE HALL:  Thank you, Mr. MacFarlane.

13             For the record, I should also remind Mr. MacFarlane of the

14     ongoing obligation pursuant to Rule 68 to disclose to the Defence any

15     material which, in his actual knowledge, may suggest innocence or

16     mitigate the guilt of the accused or affect the credibility of the

17     Prosecution evidence.  I am sure that Mr. MacFarlane knows that well.  As

18     I said, I'm stating that for the record in court in the presence of the

19     accused.

20             Do either of the parties have any further disclosure-related

21     comments they wish to make?

22             Mr. Seselj?

23             THE ACCUSED: [Interpretation] I would have something to augment

24     my oral motion to which the Prosecutor submitted a written reply to

25     disclose the documents which are referred to during the last session, and

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 1     you said, Judge Hall, that you could not reach the decision until the

 2     decision on the disqualification of two Judges was reached.  So before

 3     you begin to decide on that, I would like to provide an additional

 4     argument because the Prosecutor, not accepting my request, stated that

 5     these documents do not represent material required for the preparation of

 6     the Defence and it is not necessary to be used during the trial.  None of

 7     the disclosed documents suggest the innocence or the guilt of the accused

 8     and neither does it influence the authenticity of the evidence of the

 9     Prosecution.

10             When you look at the decision of the 3rd of February, you can see

11     that briefly the positions the Trial Chamber as stated there, which

12     refuse to conduct the proceedings for contempt of court, the

13     Trial Chamber at some alleged disclosure matter stated that there weren't

14     sufficient grounds to issue an order in lieu of an indictment against me.

15     And then, in reference to some other document, that the information was

16     disclosed and thus deliberately the order of the Chamber was violated,

17     but that violation was not of such a degree of gravity that it would

18     require discretionary measures pursuant to Rule 77(D).

19             Then, regarding one of the documents, it says:

20             Although there are sufficient grounds for briefing that

21     confidential information had been disclosed, the Trial Chamber is not

22     convinced that it is of such a degree of gravity requiring action.

23             Then in item 4 it is stated the Trial Chamber did not have

24     sufficient grounds to believe that information was disclosed, could have

25     led to the identification of the witnesses as such.

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 1             And then paragraph 5, the same explanation would apply for -- to

 2     accept the associates of the accused, and so on and so forth.

 3             So the Trial Chamber analysed the request in detail and analysed

 4     the factual matters arising from that motion and decided, finally, that

 5     there were no grounds for contempt of court proceedings.  The Prosecutor

 6     appealed and then the Appeals Chamber granted that appeal, and that is

 7     why we are here now.

 8             However, I do have a right to know all the details that were used

 9     to guide the Trial Chamber to reach a decision to reject the contempt of

10     court proceedings.  The conclusions were presented to me in the decision

11     by the Appeals Chamber, but I'm interested in the reasoning of the

12     Trial Chamber in reaching these decisions.  I would like to look at these

13     particulars, and that perhaps could be the gist of my defence.

14             So we have the case from the practice of this Court where a

15     contempt of court proceeding was attempted to be initiated.  The

16     Trial Chamber refused to do that.  But I don't know what happened at the

17     preparatory stages until this request was denied, and now proceedings are

18     being conducted against me pursuant to the same or similar request -- or

19     the identical request.

20             So I would like to have these documents, and I believe that that

21     request is beyond reproach.  And I can see that you are waiting for the

22     resolution of my request for the disqualification of these two Judges,

23     but I believe that an attorney of repute really should not come out with

24     a request like this.  And we can see that he is no attorney at all based

25     on that.  And we know how the previous contempt of court proceedings

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 1     against me ended, where I was sentenced to 15 years [as interpreted].

 2     There were no submissions made by the Prosecutor.  Nobody asked them to

 3     do that.  And then the entire proceedings were carried out very quickly

 4     in the course of one day, and then I had to give my opening and closing

 5     arguments in one day because this is what the Presiding Judge Kwon,

 6     insisted on.

 7             This time, in these proceedings, we will not be able to conduct

 8     them in that way, especially because I have the intention to introduce

 9     witnesses, witnesses of the defence.

10             That is all that I have to say regarding the matter of

11     disclosure.  But I do have two other matters to deal with, so when you

12     feel that the time is right, I'm going to discuss them.

13             JUDGE HALL:  I would ask Mr. MacFarlane if he has any comments,

14     but on the matter of your entitlement to see the reasons of Trial

15     Chamber, which is the subject of the appeal, subject to being corrected

16     on the rules and on the jurisprudence of this Chamber, I would have

17     thought, without more, that the decision of the Trial Chamber would have

18     been definitive, the definitive word on the issue, and that that is what

19     you would have been entitled to, which, as you said, you have received.

20     But obviously it's a matter to which the Chamber will have to return.

21             Mr. MacFarlane, do you have any comments on this?

22             MR. MacFARLANE:  My comments to a certain extent are a reflection

23     of the comments of Your Honour a few minutes ago.  It's clear, perhaps

24     clearer now than it was before, that what the accused is seeking is not

25     evidence but, rather, legal reasoning, and that does not trigger a

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 1     disclosure obligation.  So the accused does have the foundational

 2     decision upon which these proceedings are brought, but at this point he's

 3     not seeking evidence.

 4             JUDGE HALL:  Thank you.

 5             MR. MacFARLANE:  And just an additional point.  I don't think

 6     much turns on this.  Unless the translation that I received was

 7     incorrect, the accused made reference to being sentenced to 15 years.  If

 8     that, in fact, is what he said, that's incorrect; it was 15 months.

 9             JUDGE HALL:  Thank you.  I assume Mr. Seselj misspoke himself in

10     that regard, and it's 15 months, not 15 years.

11             Mr. Seselj, you said you had two other matters to raise.  Would

12     you like to raise them at this point?

13             THE ACCUSED: [Interpretation] I'm not sure that I made the error.

14     Perhaps the interpreter did.  Perhaps I did.  I really cannot remember.

15     But I think that everyone understood what this was about, and that error

16     could not have created the problems to the Prosecutor Amicus Curiae.

17             The second matter I would like to discuss is very important

18     regarding the 8th and the 9th of July.  I had scheduled a visit of my

19     legal advisor, Dejan Mijovic [as interpreted], in this case, and also the

20     Case Manager Nemanja Sarovic.  As soon as I was informed that new

21     proceedings would be initiated against me, I informed the Registry who

22     would be my Legal Advisor, who would be my Case Manager, and the Registry

23     recorded those two persons pursuant to my request.  Then I informed the

24     Registry that I had scheduled a visit from these two associates, and the

25     Registry sent me an answer written by Jaimee Campbell, I think she's the

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 1     new OLAD chief, that I could have a privileged visit by Dejan Mirkovic as

 2     a Legal Advisor, but the Case Manager Nemanja Sarovic could not attend

 3     this privileged visit.

 4             This is happening for the first time in this case.  Since the

 5     beginning of The Hague Tribunal, the right to a privileged visit applied

 6     to Defence attorneys, to legal counsel, and Case Managers in all cases.

 7     Nowhere was the Case Manager not permitted to attend a privileged visit,

 8     nor were there any particular conditions applied in terms of the

 9     Case Manager.

10             This is very important, especially because I have the intention

11     of calling a large number of witnesses in these proceedings, so it is

12     essential for me to be able to work with my Legal Advisor and my

13     Case Manager.  I am going to call the witnesses and interview them in the

14     Detention Unit first in order to proof them for their testimony.  That is

15     my right as an accused who is self-representing, and that is why I need

16     to consult the Case Manager and the Legal Advisor.  They need to be

17     present during those proofing sessions.  They need to assist me in

18     drafting the statements by those witnesses.

19             Before the proceedings begin, I'm going to provide you the

20     request pursuant to Rule 65 ter to call witnesses and to submit

21     preliminary statements by all those witnesses.  So how can I do all this

22     work without a Case Manager?

23             So this is an arbitrary decision.  And you, Mr. Hall, as the

24     Pre-Trial Judge, even without a Trial Chamber, have the right to

25     intervene with the Registry to have this matter clarified in the manner

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 1     that I'm requesting here.  I'm officially now submitting a request to

 2     that effect.

 3             And the third matter that I wish to discuss --

 4             JUDGE HALL:  May I deal with that second matter first of all.

 5     I've noted your concerns and complaints, and I will request the

 6     Legal Officer to inquire of the Registry as to what the practice is in

 7     this regard and whether to the extent to which you can -- you could and

 8     should be accommodated.

 9             Your third matter.

10             THE ACCUSED: [Interpretation] I assume that you found it strange

11     as well when you entered the courtroom a few moments ago, Mr. Hall, when

12     you saw the Prosecutor sitting in the place where the Prosecutor is

13     supposed to sit.  They placed me in the gallery.  I'm surprised that they

14     didn't put me up on the roof.

15             I demand that as Defence counsel I am treated equally to the

16     Prosecutor.  That is to say, I should sit at a place that is similar to

17     that where the Prosecutor is sitting.

18             The practice of this Tribunal makes me right to do that.  In the

19     chief proceedings against me, in the trial against me, they didn't allow

20     me to sit in the first row because they are still scared of an accused

21     person, but at least I sat in the second row.

22             In the proceedings against Radovan Karadzic, again, the accused,

23     who is self-represented, is placed in seats that are envisaged for the

24     Defence.

25             I don't know what the case is in Mr. Tolimir's trial, but I

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 1     assume it's similar.

 2             Why, however, do I have to sit in the dock?  Why do I not have

 3     the same kind of glass for water like the Prosecutor does?  They haven't

 4     given me a pitcher, but they should give me a proper glass.  I shouldn't

 5     be drinking out of paper cups.  In the trial against me, I have a decent

 6     glass to drink water out of.

 7             Do you really think that as a notorious war criminal I think that

 8     a glass can be a lethal weapon?  No.  I'm dreaming about grenades,

 9     large-calibre bullets, sabers as proper weapons, not glasses.  After all,

10     you have seen my words.  My most lethal weapons are my books.  It is my

11     books that are shaking the very foundations of this Tribunal.

12             As the Pre-Trial Judge, Mr. Hall, I think that you could make a

13     decision to that effect straight away, that in the courtroom I am fully

14     equal in terms of treatment with the Prosecution.

15             JUDGE HALL:  Well, I will first of all inquire as to the practice

16     of the Tribunal in that regard, but I would have thought that -- well, I

17     take your point that inasmuch as you're self-represented, you should have

18     the means that counsel would have to make notes and to follow the

19     transcript and things of that nature.  And I will make inquiries as to

20     whether the configurations of the courtroom, this one or any other

21     courtroom that we -- or any of the other three courtrooms that we might

22     use from time to time, allow you the same facilities that counsel would

23     have, because you would appreciate that the -- whereas you are

24     self-represented, you remain also the person who is accused in this

25     matter; so, therefore, certain modification would have to be made.

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 1             As I said, I would inquire -- you have referred to two trials in

 2     which self-represented accused were so accommodated, but I would make the

 3     inquiries, the necessary inquiries, and when you next appear the -- to

 4     the extent that any adjustment is -- is indicated, it would be so made.

 5             Are there any matters relating to your health or the conditions

 6     of your detention that you would wish to bring the Chamber's attention?

 7             THE ACCUSED: [Interpretation] Well, there was a problem in the

 8     Detention Unit, and you have been informed, Mr. Hall, that I wrote to the

 9     President of the Tribunal.  The problem was resolved on the very next day

10     by virtue of the decision of the Trial Chamber that you presided over.

11             I have no other problems there.

12             JUDGE HALL:  Thank you, Mr. Seselj.

13             Are there any other matters which Mr. MacFarlane would wish to

14     raise?

15             MR. MacFARLANE:  There is two issues, but it's not clear to me

16     whether at this stage it would be appropriate to raise them or whether we

17     need to await the decision on the motion to disqualify.  So I could

18     perhaps just note them for the record and then continue with a dialogue

19     once the -- the issue of disqualification is -- is resolved.  I'm in your

20     hands.

21             JUDGE HALL:  Yes.  Perhaps you could indicate them for the

22     record.

23             MR. MacFARLANE:  Fine.  Without any argumentation but just simply

24     as points that -- the first relates to the question of a pre-trial brief.

25     It would be our intention to prepare one at the appropriate point in

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 1     time, subject to any direction from the Chamber.  In other -- in previous

 2     contempt proceedings in which I was involved, that was waived expressly

 3     by the Chamber, so I was -- at the appropriate time, I would be seeking

 4     direction from the Chamber.

 5             And secondly, consistent with past practice in cases where I was

 6     appearing as Amicus Prosecutor, I was considering bringing a bar table

 7     motion.  I just simply wanted to note that, and that can proceed at the

 8     appropriate time.

 9             Thank you, Your Honour.

10             JUDGE HALL:  Thank you.

11             Well, as Mr. MacFarlane has just indicated and as I mentioned

12     previously, the number of pending matters that we have must abide the

13     decision on the application for the disqualification of Judges Kwon and

14     Parker, and the matter of any Pre-Trial Conference and the date for the

15     commencement of the trial would follow in due course.

16             So unless there is anything further, we would -- we would now

17     adjourn.  Thank you.

18                           --- Whereupon the Status Conference adjourned

19                           at 2.48 p.m.