1 Wednesday, 4 July 2007
2 [Status Conference]
3 [Open session]
4 --- Upon commencing at 8.58 a.m.
5 [The accused entered court]
6 JUDGE ANTONETTI: [Interpretation] Registrar, can you kindly call
7 the case, please.
8 THE REGISTRAR: Good morning, Your Honour, this is case number
9 IT-03-67-PT, the Prosecutor versus Vojislav Seselj.
10 JUDGE ANTONETTI: [Interpretation] Thank you, registrar. Today we
11 are Wednesday, the 4th of July 2007. I would like to greet the
12 Prosecution representatives, Ms. Dahl in particular. I would like to
13 greet Mr. Seselj, as well as all the people present in the courtroom who
14 are helping us to do our job today.
15 As you know, this is a Status Conference we are holding. This is
16 the last Status Conference we are having before the summer recess. The
17 next Status Conference will be held on Friday, the 17th of August, at 4.30
18 p.m. So please write this down. This will be held on Friday, the 17th of
19 August, at 4.30 p.m.
20 Now, as far as the following Status Conferences are concerned, we
21 have a real issue with our schedule to make sure that we stick to our time
22 because Courtroom I, II and III are going to be occupied because the
23 trials are all ongoing, and for the time being, I cannot give you a
24 hearing date because we have a very tight schedule. We could perhaps,
25 during the month of September, set a date for our next Status Conference,
1 or the other solution, if there is a possibility to hold it, or if this is
2 not a satisfactory solution, however, I don't see how we could proceed
3 otherwise, we could start a Status Conference at 8.00 in the morning and
4 perhaps only hold it for 30 minutes because at 9.00, the trial in another
5 case starts, and then resume the Status Conference on the next day at 8.00
6 and so on and so forth. I shall seize the Registry of this matter to make
7 sure that we can have four hours in a continuum, but quite frankly, when I
8 look at the schedule for the month of September, all the courtrooms are
9 occupied because of the ongoing trials. This is a real conundrum for us
10 so we will definitely try to come up with a solution. As soon as I have
11 one, I will let you know.
12 I am available, I can even hold a Status Conference in the
13 evening. In my previous jobs I sometimes worked up until 4.00 and 5.00 in
14 the morning. I know that this is not customary here but if we need to
15 meet up, in that case, we will have to hold a Status Conference after
16 7.00. There are moments in life when one needs to adjust. There are
17 seven trials ongoing at the moment, and obviously the courtrooms are
18 overbooked, which does have consequences on the pre-trial stage of other
19 trials. The Registry is currently looking into the matter. I cannot take
20 a decision on this and state that a Status Conference will be held at 7.00
21 at night or 4.00 in the morning. I can do it on a personal basis. You
22 may not be able to, Mr. Seselj, but I think you told me last time that
23 were you an early bird and that you could be here in the early hours of
24 the morning but for the moment, I don't know what our administration will
25 tell us.
1 Now, for the time being in September, I cannot give you the date
2 of a Status Conference, unless we hold Status Conferences at 8.00 in the
3 morning, which has already been the case in the past.
4 I shall now address another important matter, namely the date of
5 commencement of trial. The commencement of trial does depend on a number
6 of factors which I shall come back to at a later stage. Now, insofar as
7 we are able to find a solution to these issues, I told you at our last
8 Status Conference that because of administrative problems, our
9 administration had let me know that this trial could begin in November.
10 So what is needed for a trial? A judge; B, a registrar; C, legal
11 officers; D, interpreters, and therefore this requires a number of people.
12 The staff for the moment is currently working on the Dragomir Milosevic
13 case but as far as I know the Dragomir Milosevic case should end very
14 soon, which means that we will be able to draw on these other resources
15 and begin our trial, all the more that Mr. Seselj is in pre-trial
16 detention and the parliamentary assembly of the Council of Europe has
17 addressed this issue, in deliberation number 1564, has asked the Tribunal
18 to set a date for the beginning of this trial, as soon as possible.
19 So notwithstanding these deliberations, which I am not involved
20 in, however I know that Mr. Seselj should be tried as soon as possible,
21 given that he is in detention for a number of years now and that this
22 situation has to come to an end. Therefore, the best time possible would
23 be as follows: We could, on the 6th of November, hold the Pre-Trial
24 Conference, the 6th of November is a Tuesday. Wednesday, the 7th of
25 November, we would have the -- hear the Prosecution case and on the 8th of
1 November, if Mr. Seselj would like to take the floor, he will take the
2 floor if he so wishes on the 8th of November.
3 Therefore, the first witnesses could come to testify on the
4 following week, as of the -- as of Tuesday, the 13th of November. As you
5 know, at Mr. Seselj's request and at my request also, we should be able to
6 have a three-day-a-week trial.
7 Ms. Dahl, now so that we are clear about all of this, I could, if
8 need be, hand down an order. I would like to know what the Prosecution
9 schedule looks like. I would like to know what the picture looks like
10 regarding all your witnesses, all the witnesses you intend to call to
11 testify in support of your case. Therefore, you should be able to draw up
12 a schedule that would start on the 13th of November, 13th, 14th and 15th,
13 and so on and so forth, and you write in the name of the witnesses, from
14 the beginning of your case to the end of your case.
15 In addition, I need to determine, pursuant to Rule 65 ter, the
16 definitive list of your -- the final witness list and the length of their
17 testimony. Your list should, therefore, mention the name of the
18 witnesses, the time you intend to spend examining these witnesses. But I
19 would also like to ask the Prosecution to call these witnesses in a
20 logical order, from a judicial standpoint. It could look like this. I
21 purposefully use the conditional tense because what I have in mind is also
22 the issue of equality of arms and the Defence of Mr. Seselj who is
23 representing himself, who also needs to prepare his defence.
24 Therefore, but this is something I have already mentioned, but I
25 shall say it again, in an ideal situation, you should start off with
1 crime-base witnesses, i.e., the witnesses who will come to talk about what
2 happened in the various municipalities. In the indictment, several
3 municipalities are mentioned, and in that case, you call them to come to
4 testify, to talk about these municipalities, in a consistent fashion. You
5 bring together the witnesses that come to talk about a particular
6 municipality, and then again another municipality. For instance, take the
7 case of the larger area of Sarajevo and Mostar so you bring all the
8 witnesses together who come to talk about the same municipality, so that
9 the Judges, Mr. Seselj and the people who are listening to us get a clear
10 vision of what actually happened in one or other municipality. So it's
11 not a good idea to bring a witness who is going to talk about one
12 particular municipality and then the next day witnesses going to be
13 talking about another municipality, then it is very difficult to
14 understand what is happening. So it's better to work along these lines.
15 I think this is common legal practice. So this will also be beneficial to
16 Mr. Seselj, who will be able to prepare his defence.
17 Now, after that, we could proceed in the following manner. Crimes
18 have been committed, facts have been stated, so we need to understand who
19 committed these facts. So you should then call witnesses who will address
20 this matter, in order to establish a connection between the facts and the
21 perpetrators of these facts. It is important to target your witnesses
22 appropriately, the witnesses who are going to come and talk about these
23 matters. And at the end, you should call the witnesses who are going to
24 be talking about the responsibility of the accused, so that we have a
25 proper logical order, because in some trials, one witness is a crime-base
1 witness and the next day we hear an international witness who is coming to
2 talk about something else and then on the next day after that, another
3 witness comes to talk about another subject, which with my French, logical
4 mind, always defeats me somewhat. Then it is much better to proceed this
5 way, like that. You understand what is what.
6 Now, the reason I'm saying this is that the Prosecution has filed
7 a number of motions with a view to admitting transcripts in other trials
8 of 92 bis articles and various statements, and for the time being, I have
9 not ruled on these matters because I felt it was for the Chamber to
10 decide, but my personal view on this matter is the following: These
11 applications, as far as I'm concerned, can only be assessed in light of
12 the testimony of viva voce witnesses who will have already testified. Let
13 me give you a very clear example, which is Rule 92 bis, which, as you
14 know, Rule 92 bis should only corroborate existing material. The accused
15 can always challenge this and say he wants to cross-examine the witness.
16 This is one of the rights of the accused. But for the Chamber to be able
17 to purposefully rule on a 92 bis rule motion relating to a witness who has
18 been a victim, who is going to confirm what another viva voce witness has
19 already said concerning a particular municipality, the -- it is important
20 that the viva voce witness be heard beforehand.
21 Let me say that the Chamber has to get the overall picture to be
22 able to do this because, Ms. Dahl, when you ask us now to admit a 92 bis
23 statement, whereas I know nothing about what might have happened because
24 to date I have seen no document whatsoever, now, in order to rule on this,
25 I need to hear a viva voce witness beforehand. Let me take the case of a
1 witness who is going to come to talk about Mostar, and then you would like
2 to adduce a 92 bis statement, a witness statements, which are going to
3 confirm what another witness has already said about Mostar but I can't, at
4 the outset state that I accept a 92 bis statement when nobody has come to
5 talk about it yet. I think this would be inconsistent.
6 Therefore, it is important that you give us your witness list and
7 that the witness order follows a particular logic so that the Bench gets
8 the overall picture of the way in which the Prosecution is going to
9 present its case.
10 You, of course, are entitled to present your case whichever way
11 you deem right, but, of course, this has to be in accordance with the
12 Rules of Procedure and Evidence, but the Bench does control the way in
13 which the witnesses are being called and the Bench must set the length of
14 the trial. Now, in order to set dates, I need to have sufficient
15 information and I need to have your schedule and I need to have your list
16 of witnesses and the order in which you're going to be calling these
17 witnesses. This should be disclosed to me as soon as possible, to enable
18 me to set the time limits. When the trial had started in November, I
19 recollect that the time set for the trial had been six months for the
20 Prosecution and six months for the Defence. Maybe six months is the right
21 amount of time. I honestly don't know. Much will depend on the schedule
22 you are going to give me. And for the time being, I cannot tell you
23 whether it's going to be six months, eight months, ten months, five
24 months. I simply don't know, because I do not have the right information
1 So it is most important to have this schedule and list, and this
2 is why I am making such a point of it.
3 In addition, before addressing in a contradictory fashion the
4 status of pending motions, I would like to say the following. The
5 difficulties that have arisen from this trial, we would like to settle as
6 quickly as possible. The difficulties were due to three factors mainly:
7 A, the fact that the accused wanted to represent himself. This matter has
8 been settled because the accused shall now represent himself, shall put
9 his questions and will be in full control of his Defence case.
10 B, a factor which was preventing the trial from starting was due
11 to the question of documents, disclosure of documents pursuant to Rule 66
12 and 68. Mr. Seselj felt that he should receive all these documents in his
13 own language. I have previously ruled on the matter upholding this
14 because, as a Judge, I felt that an accused should receive all the
15 documents in his own language when these documents are in support of the
16 indictment, whatever the jurisdiction or country are. That's the least
17 one can do. I have therefore ruled on the issue. To my surprise, the
18 Prosecution then seized the Chamber, in its entirety, to ask for this
19 decision to be reconsidered. Pursuant to Rule 73, I was given authority
20 in the matter, and Chamber III ruled that this was within my competence,
21 so I did not quite understand why the Prosecution proceeded this way.
22 So this decision is final. Mr. Seselj should get all the
23 documents in his language, pursuant to Rules 66 and 68. That was the
24 second obstacle standing in the way of the commencement of trial.
25 C, this is the last obstacle, and I hope that this one will also
1 be lifted, this concerns facilities which should be granted to Mr. Seselj
2 so that he can defend himself. He has filed a motion. The Prosecution
3 has filed its brief, and the Prosecution has also made written
5 Mr. Seselj, regarding this fundamental issue, as everybody can
6 well imagine, the brief is several pages long and is currently being
7 translated. I have been told that you will be getting the translation of
8 this brief in your own language on the 20th of July. Why will you be
9 getting it on the 20th of July? Because it takes time. The brief is a
10 26-page brief. It is in English and I'm sure it has already been
11 disclosed to you or at least your associates, I'm sure, have it already
12 but it makes sense that you have it in your own language. Therefore, if
13 you would like to respond to this brief, pursuant to our Rules of
14 Procedure and Evidence, you have seven days to do so. So you should
15 provide your response before the 27th of July so that by the end of July,
16 or the beginning of August, I can hand down a decision on this matter.
17 My decision will, of course, take into account the -- your
18 arguments, the argument as provided by both parties, but this is something
19 I have already mentioned and it is no secret: You are entitled to legal
20 aid, to assistance and you can work with associates, your associates must
21 be paid by the Tribunal. In addition, you should indicate to the
22 Registrar that you are unable to pay the fees of your associates and you
23 should be managing your associates personally.
24 It's for you to decide who is to work with you and at what time,
25 and to avoid any particular problem, it would be better if on your team
1 there would be at least one legal assistant that would meet the legal
2 requirements of our Rule 45 of our Rules of Procedure and Evidence. In
3 the decision I will hand down, I will stipulate, without stating that this
4 is in any way compelling, I shall indicate that this would be a good way
5 of proceeding. In a situation like yours, your team of associates should,
6 as far as I'm concerned, be made up of at least one person who will be in
7 contact with the Registrar, the legal officer, the Prosecution, and
8 therefore this person will brief you on various matters, pending matters,
9 solutions that have been found, and as a manner of speaking, this person
10 would act as a go-between, between you and the Tribunal. So this person
11 can fulfil the requirements under Rule 45. It's up to you to make sure
12 they do, not mine.
13 Regarding the people who are going to assist you at the hearing in
14 court, who will be sitting next to you, if you so wish of course, if you
15 do not wish to have them, it's up to you, these people, of course, we need
16 to have interpreters working in the three languages, one of your
17 associates at least should speak English, know English. Why so? Because
18 you see, as I'm speaking, you have in front of you the translation into
19 English of what I'm saying on the screen. You yourself may well know
20 English, but it's impossible for you to be riveted to the screen at all
21 times whilst listening to the witness, whilst listening to the Prosecutor,
22 or whilst looking at the judges. So if, on the screen, there is a mistake
23 or if you have a translation in English that does not quite correspond to
24 the statement by the witness in B/C/S, then your assistant can tell you
25 that there is a problem because on page so much, page 25, line 14,
1 there -- this is being said in English but this does not fit what the
2 witness said in B/C/S. So then you can ask for a change because there
3 would have been a mistake in the translation.
4 This is the reason why you need some help. Since you are alone,
5 it's impossible for you to look, listen, check your documents whilst
6 checking the screen as well. Hence, the need to have somebody next to you
7 doing that job. Also, you might need a case manager, somebody who is
8 going to help you physically with documents or making photocopies,
9 preparing files, but also in court, if you intend to show a video clip,
10 say and you have that clip, who is going to start the clip? Well, your
11 case manager will. He or she will be the one doing it, launching the
12 video clip so you need somebody to help you in your physical task because
13 in court you may need to have their help.
14 So this is what I'm going to state in the decision but, of course,
15 you have to decide yourself. You will make up your team but my experience
16 shows me that you need such help indeed. When an accused is assisted by a
17 lawyer, you have seen this already, sometimes the accused has two counsel,
18 lead counsel and the co-counsel. Then a third person on the team. So
19 actually, when you have an accused who is represented by counsel, the
20 accused has the help of three people. But here, in the instant case, you
21 will alone so you need to have people helping you out. Do as you please,
22 of course, but think it over, because these are material necessities
23 making it difficult for you to be on your own without anybody helping you.
24 Therefore, in my decision, I will set out the principle which is
25 that you need to have a team made up of associates who will be paid by the
1 Tribunal. The sooner the better. Indeed, if we do stick to the date of
2 the 6th of November, your associates should be able to attend the hearing
3 to help you purposefully.
4 Before I move on to other issues, I am going to give you the
5 floor, Mr. Seselj, and then I'll give the floor to the Prosecution. Let's
6 start with Mr. Seselj.
7 MS. DAHL: Your Honour, if I may ask first --
8 JUDGE ANTONETTI: [Interpretation] Yes, Ms. Dahl?
9 MS. DAHL: At the last Status Conference, there was perhaps a
10 potential for misunderstanding regarding the identification of persons by
11 name and the question of whether that would violate protective measures
12 that are in place and I would like to request an instruction and a ruling
13 from you that if it is necessary for Mr. Seselj to refer to individuals by
14 proper name that we move immediately into private session, therefore we
15 will avoid misunderstandings regarding disclosure or inadvertent publicity
16 that would be a violation of the rules of the Court.
17 JUDGE ANTONETTI: [Interpretation] Very well. I'm going to give
18 the floor to you straight away, Mr. Seselj but I'd like to settle this
19 matter, but you will be free of course to speak to this topic as well.
20 Yes, the issue of disclosure of names. We have rules that say that
21 certain witnesses should be granted protective measures. Therefore, there
22 are several individuals who might testify and they have already or will be
23 granted protective measures. As a result, you, when you mention a topic,
24 whatever it may be, you might give the name of a witness because you did
25 not know that that witness had been granted protective measures or because
1 you didn't think of it on the spur of the moment or for any other reason,
2 and then you see the name of the witness on the screen. I do not know
3 personally the names of protected witnesses. If you say Mr. Popovic, I
4 don't know whether Mr. Popovic is a protected witness or not. I do not
5 know it at all.
6 In order to avoid this type of problem, it might be best for you
7 not to mention the name but for you to say Mr. X without giving his name
8 because if you do not mention the name and it later on appears that the
9 person is a protected witness, we have to sort of start security measures.
10 They do exist. I have mentioned them expressly in an order. We can
11 then redact the name and you know that we have a delay of 30 minutes to do
12 so, but if there is a name in the transcript and nobody reacts and if we
13 later find out that this said Mr. Popovic was some protected witness, I
14 say Popovic, I could have said Mr. Smith, it's just a name I am using to
15 illustrate what I mean, so if two weeks later we discover that this
16 Mr. Popovic was a protected witness, then I will have to issue an order
17 for his name to be redacted.
18 But at some times the court deputy, of course, must endeavour to
19 check that the names are not the names of protected witness. Same
20 obligation for the Prosecution, but in spite of all these checks and
21 balances, it happens that the name remains in the transcript and then the
22 best thing for you to do, Mr. Seselj, is that of your own accord, you ask
23 to move to private session because you're going to mention somebody who,
24 as far as you know, is a protected witness and we'll move into private
25 session or if you have a doubt, don't mention the name of that individual.
1 So this is in order to protect witnesses.
2 Yes, Ms. Dahl? Did you want to add something?
3 MS. DAHL: Yes, Your Honour, there is a second aspect to the
4 request. I wish to prevent there from arising an accusation that
5 Mr. Seselj is fishing for information to which he is not privy, and apart
6 from protecting the identity of witnesses, there are of course as
7 Mr. Seselj knows witnesses whose identity has been concealed from him as a
8 matter of security and we do not wish there to be an unfortunate problem
9 where the post hoc redaction of the transcript signals to Mr. Seselj that
10 he has uncovered the identity of witnesses who have not been disclosed to
11 him pursuant to an order of the Tribunal delaying disclosure.
12 JUDGE ANTONETTI: [Interpretation] Yes. Regarding this second
13 aspect, I must say it's a very complex one. As part of the preparation of
14 his defence, I guess that Mr. Seselj, and he will say so himself later, he
15 must have listed a number of individuals who in his mind might be useful
16 to him, for his defence. So maybe that's what he has in mind. So he may
17 have thought that certain individuals might potentially be relevant
18 witnesses in order to highlight parts of his case. Then, spontaneously he
19 might say, "Well, I have these names, these witnesses, X, Y, Z," but it
20 might be that the witnesses he mentioned fall under your category or list
21 of Prosecution witnesses that he's not aware of. That could happen.
22 It could happen, because at times -- you know there is a certain
23 fiction about Prosecution and Defence witnesses, this is a forensic
24 fiction because actually these are witnesses of the Court, of justice as
25 such, because as soon as they take an oath, they testify for the sake of
1 justice. But we have witnesses who are called by the Prosecution in
2 support of their case and we have Defence witnesses being called for the
3 Defence case, but it may happen that you have witnesses who could go both
4 ways, and then the Defence may feel that the said one witness is their
5 witness, whilst you called him as a Prosecution witness so this is a very
6 difficult case to solve.
7 I'm not aware of Mr. Seselj's witnesses list. As to yours, you
8 have numbers and names but it doesn't say anything to me because I am not
9 informed of the material they are going to testify to. All this is going
10 to be revealed in court. So you raise a problem, indeed, but the
11 solution, the practical solution, thereof, is hard to find because you
12 think that maybe in doing so, Mr. Seselj is going to be fishing for
13 witnesses that he doesn't know the names of. So there we are treading
14 into speculation territory. This may be founded, but it could also be
15 totally wrong, and I do not have any ready-made recipe to prevent that.
16 The only ready-made recipe would be to say to Mr. Seselj do not give
17 names. That might be a good solution. So, Mr. Seselj, regarding all of
18 the points I have mentioned so far, you wanted to take the floor and you
19 have it.
20 THE ACCUSED: [Interpretation] Judge, perhaps I'm not going to take
21 things in the same order. First I'd like to say a few words about the
22 last point that the Prosecutor spoke about. I am duty-bound to protect
23 the names of protected witnesses disclosed to me by the Prosecution. It
24 is not my duty not to mention any name whatsoever fearful that it may be
25 protected. Last time an embarrassing thing happened. I mentioned at the
1 Status Conference the name of a witness who testified in public in a trial
2 in The Hague. I assumed that he could appear in my trial as well.
3 After the Prosecutor intervened, the Registry redacted that name
4 from the transcript and the recording with the explanation that this
5 witness was a protected witness in yet a third trial. So in one trial he
6 appeared here. She appeared as a protected witness in another one, as an
7 unprotected witness, but I have not been informed about anything yet.
8 That is a situation for which the Prosecution can be blamed, not me. I'm
9 not mentioning any names now, please don't let the Prosecutor interrupt
10 me. I have never interrupted counsel for the Prosecution so don't let her
11 interrupt me either.
12 JUDGE ANTONETTI: [Interpretation] [Previous translation
13 continues]... finish and then you can respond.
14 MS. DAHL: This is a matter of courtroom decorum. I would request
15 that you ask Mr. Seselj to lower his voice. It appears as if he is
16 yelling based on the volume and tone of his voice.
17 JUDGE ANTONETTI: [Interpretation] Yes. Mr. Seselj, last time I'd
18 asked you while you spoke so loudly and you said that you were used to
19 speaking loudly because you had been a teacher, professor at university,
20 and as a politician you were used to speaking loudly. Would you mind sort
21 of lowering your voice, the tone of your voice? Could you try?
22 THE ACCUSED: [Interpretation] Well, only if I move the microphone
23 a bit further off. I don't see how I can turn the volume of my voice
24 down. At one point I can speak softly, you see, but not throughout my
25 discourse. I cannot think about that all the time. At one point in time,
1 I will have to start to speak naturally. Right now, I've been speaking
2 softly but when I focus on the essence, I'm going to talk the way I speak
3 naturally. Your technicians should have the possibility of reducing the
4 volume in the microphone and in this way, they can resolve the problem.
5 You see, this is what Geoffrey Nice did too when I testified in the
6 Slobodan Milosevic case. You know, this is mistreatment in order to avoid
7 a debate about the essence.
8 I started talking about the very essence and substance and then
9 the Prosecutor, the counsel for the Prosecution, does not like the tone of
10 my voice. She can get a different headset. She can have different ear
11 phones that can eliminate all other background noise from the courtroom
12 and then she can only hear the voice of the interpreter, whatever she
13 wants to hear. You know if I did that intentionally, it would be
14 impossible for a person to do that, to speak in a strong voice all the
15 time. This is my natural voice. This is a God-given thing, just as God
16 bestowed beauty on the counsel for the Prosecution, God bestowed this kind
17 of voice on me so allow me to say what it is that I'm saying without
18 interrupting me so, Judge --
19 JUDGE ANTONETTI: [Interpretation] One moment, Mr. Seselj.
20 Ms. Dahl? You got an answer from Mr. Seselj, if his tone is too strong,
21 the Registry could see to it that the volume is turned down. Technically
22 I believe it's possible and that might be a solution to this problem. It
23 is true that Mr. Seselj has been speaking in this way for a very long
24 time, and as he explains, he can't focus on what he wants to say by -- and
25 try to lower the volume. Because if he does so, he loses his train of
1 thought. So that's the problem.
2 MS. DAHL: Your Honour, I understand his explanation and
3 respectfully I think that there has been a misunderstanding. It is not a
4 matter of amplification through the sound system. It is a matter of
5 Mr. Seselj modulating his own voice himself, because that is what is
6 coming across the courtroom, and this is a small courtroom and I think
7 this is an important matter for preparation for conducting the trial.
8 Because if the reasonable observer perceives that Mr. Seselj is using what
9 I would consider an outdoor voice and is yelling at the participants in
10 this trial, there will be misunderstandings and interruptions to request
11 him to please modulate the volume that he produces naturally.
12 The other point I wanted to make is that as a matter of courtroom
13 practice, objections by counsel are received not as intentional
14 interruptions by the opposing party but a matter of courtesy. If I stand
15 it is because there is an important point that needs to be made and
16 courtroom decorum requires that we take turns and not take interruptions
17 personally as a -- with the malicious intent to interrupt or thwart
18 Mr. Seselj's opportunity to speak.
19 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Seselj, in this
20 respect, the Prosecution is telling us that we are in a small courtroom
21 but it's the largest because Courtroom II is much smaller. Courtroom I is
22 also smaller. We are in the largest courtroom. The Prosecution are
23 telling us that we are not in a large space, in an amphitheatre; therefore
24 the decibel level uttered by someone in a small space can be tantamount to
25 a sort of excessive volume. This is food for thought but go on, please,
1 as to the merits of what you wanted to say.
2 THE ACCUSED: [Interpretation] I don't know, Judge, whether you
3 know the name of the late Russian general, Lebed. At one point he was
4 candidate for president. He ran against Boris Yeltsin in the elections in
5 1996. As far as I can remember, and I think he got killed in a traffic
6 accidents. I don't know if you've heard of him. I assume you have. And
7 I don't know whether you heard the way he spoke. Could you imagine
8 General Lebed appearing in this courtroom and his voice was far stronger
9 than mine. How would he resolve that problem? The counsel for the
10 Prosecution could not have said anything more nonsensical than what she
11 said a few moments ago. It is malicious. My voice can be isolated for
12 all of those present in the courtroom with better ear phones or better
13 technicians running the equipment, and please don't trouble me with that
14 any more. I cannot speak in an unnatural voice in the courtroom. I
15 cannot speak differently from what I speak like in any normal
16 conversation. It is impossible to ask me to do that. You have now
17 succeeded in drawing my attention to something else and I assume that
18 that's what you'll be doing throughout the proceedings because you'll be
19 bothered by my voice and then --
20 MS. DAHL: I want to be protected from --
21 THE ACCUSED: [Interpretation] Again she is interrupting me. That
22 is impermissible, Judge.
23 JUDGE ANTONETTI: [Interpretation] Objections are admissible when
24 they are founded. Mr. Seselj has just provided an explanation, his
25 explanation. You have provided yours. I will discuss the matter with the
1 Registry to see whether it's possible to turn down the level because when
2 you hear Mr. Seselj, you hear him in your own language as the way I do in
3 my own language so if we can turn down the volume, we'll do so.
4 MS. DAHL: Your Honour --
5 JUDGE ANTONETTI: [Interpretation] But I do not have a solution
6 right now.
7 MS. DAHL: You're misunderstanding the nature of my objection. I
8 want to put on the record that Mr. Seselj turned his body towards me and
9 began addressing me rather than the Court. That is a breach of the
10 decorum of court rules. Arguments and submissions and discussions are
11 with the Court and not across the aisle between the parties and I wish
12 Mr. Seselj to be instructed by the Court that he should refrain from
13 addressing the Prosecution directly, that he should make his discussions
14 directly to the Judge and that he should refrain from making insults to
15 insinuate baseless accusations such as malicious intent.
16 JUDGE ANTONETTI: [Interpretation] Ms. Dahl, Ms. Dahl, he did not
17 insult anybody. Do not relapse into mistakes in the past where the
18 Prosecution wanted to say that Mr. Seselj was crazy, initiated proceedings
19 saying that he was insulting people. I'm not going to fall into that trap
20 that you are preparing for me. Mr. Seselj has given a technical
21 explanation as to why he has a loud voice. There may be a technical
22 solution to it.
23 However, you are right in that we have here a discussion in court
24 between -- it's a triangular thing. The parties address the Court, not
25 the other party across the well. So of course when you answer me,
1 Mr. Seselj, you have to look at me, because when you answer me, the
2 Prosecution is not concerned but Ms. Dahl, I do insist rather heavily on
3 this. In the courtroom, we must have peaceful proceedings. One or the
4 other party should not address the other party because this does not
5 contribute to a peaceful and serene examination of the case. We were
6 dealing with technical matters right now, and Mr. Seselj is going to
7 provide a technical answer to the issues he wanted to deal with. Go
9 THE ACCUSED: [Interpretation] Judge, I am addressing you only and
10 you can see that from all the transcripts to date. However, it is my
11 rhetoric freedom, how I'm going to express a particular thought. In
12 principle, when witnesses appear here, either Prosecution witnesses or
13 Defence witnesses, I will again put questions to them through the Court,
14 addressing the Court I put a question to them, but then of course as a
15 question of rhetoric freedom, it may seem that I'm addressing them
17 Secondly, as I address you I am conveying a certain message to the
18 Prosecution and now the Prosecution is suffering because of this strong
19 message and is trying to devalue it by showing that they do not know the
20 rules of procedure and that by presenting some objections that are totally
21 baseless. May I please move on to the merit now because this senseless
22 discussion has been going on for 15 minutes now and I did not cause it in
23 any way, it is only the malice of the counsel for the Prosecution that
24 caused it. If you allow me now I'm going to move on to speak about the
25 problems as you presented them.
1 Judge, the Council of Europe is not a relevant international
2 organisation that has the rights to submit any requests to this
3 international court. They are bringing political pressure to bear because
4 their objective is to have me convicted as soon as possible and to be
5 eliminated as a political phenomenon on this planet. Those are their
6 motives and that is why they mentioned my name in the resolution that you
7 referred to. I call upon you as the Pre-Trial Judge, to make a public
8 statement in which you will reject with indignation that part of the
9 resolution of the Council of Europe because it is not your fault that my
10 trial is running so late. From the moment when you took over this case,
11 there was not a single delay that was caused by you.
12 Irreparable harm has already been made to me because my trial did
13 not start at a reasonable point in time. Now, I'm opposing any attempt
14 that, due to political pressures of the Council of Europe, my trial starts
15 before all the prerequisites are met. You know full well that all the
16 trial requirements have not been met. I think that the 6th of November is
17 an unrealistic date for the start of trial. Why is it so? At the last
18 Status Conference you told me that the Trial Chamber allowed me to object
19 to the reduced indictment and the expanded indictment. It's going to be a
20 single document and you told me that I will have a month to do that. I
21 still haven't received the documents in the Serbian language, so that one
22 month has not started running yet. If I were to receive it today, my
23 deadline for filing would be the 3rd or 4th of August. Then I assume that
24 at least a month will be needed for the Trial Chamber to rule on my
25 objections, because I will first and foremost challenge the jurisdiction
1 of this Court to try violations that could be called hate speech and I
2 will have the right to appeal once you decide. You know that as far as
3 challenging jurisdictions appeal, I can appeal straight away without
4 requesting certification to appeal from the Trial Chamber. The Appeals
5 Chamber will probably need three months to decide on that. It is only
6 then that it is possible to start the trial.
7 Therefore, for this reason, the date of the 6th of November is
8 unrealistic. It is also unrealistic for a more important reason. I will
9 still not received the pre-trial brief, the revised list of witnesses and
10 the revised list of exhibits. Allegedly they have compiled this in the
11 English language. The other day they tried to have this handed over to me
12 in the English language. I refused. Now the question is how much time
13 they will need to have this translated. You yourself said that your
14 translators translate four pages a day. When I'm going to receive all of
15 this is a big question. Then in the request to re-examine your decision
16 on the mode of discovery, the Prosecution itself admitted that they still
17 have to disclose about 400.000 pages of material to me according to
18 Rule 66 and Rule 68. You have that information on the footnote on the
19 last page of the said document. 400.000 pages. Now, they say that they
20 have a financial problem, that they need 75.000 euro to finance this but
21 how many days do they need to do this? To get part of this material
22 translated into Serbian and the part that is in audio form transmitted to
24 Once they have done all of that, how many days do I need to read
25 all of this? 400.000 pages? If I'm to read 400 pages per day, on the
1 condition that I read 25 hours a day, if I were to get up an hour earlier
2 as some of my friends would tend to joke, I will need a thousand days.
3 Without these thousand days, I cannot be trial ready. Of course, there is
4 a remedy, a remedy lies in reduction, reduction of the material.
5 According to Rule 66, reducing the number of witnesses, counts in the
6 indictment and everything else.
7 However, I vehemently oppose every attempt to reduce the discovery
8 of according to Rule 68 because my inalienable right according to the
9 rules to have the Prosecution submit to me all the documents for which at
10 any point in time any one from the Prosecution assumed that they could be
11 exculpatory. That is the 206.000 pages that I referred to the last time
12 and the other time before that. 206.000 pages of exculpatory material.
13 They have to submit that to me. And I have to have time to read this
14 material, at least once, at least once.
15 And you see how many days that boils down to.
16 It is absolutely impossible for the trial to start on the 6th of
17 November. I've been waiting for four and a half years. I'll wait another
18 four and a half years but I'm not going to give up on any one of my
19 trial-based rights. In the best possible case, the trial can start in the
20 beginning of 2008 and as it has to end by the 31st of December 2008 it is
21 impossible for the Prosecution to have six months to present their case.
22 They can have three or four months and then the requisite is that I have
23 to be given the same amount of time and you know that there has to be a
24 break between the Prosecution case and the Defence case, and in that break
25 I'm going to prepare the Defence witnesses.
1 So 3.000 -- three months to them, three months to me, a three
2 month break in between our two cases, there you are, nine months on the
3 condition that the trial starts in March. It is impossible for it to
4 start earlier. It can start earlier on the condition that I do not get
5 all the material according to Rule 66, if I do not get all the material
6 according to Rule 68 and also, to rush the trial as the Council of Europe
7 would want to have things done because what matters to them is that I am
8 convicted. They don't care about how I'm going to be tried. Not a single
9 Western power cares about how I'm going to be tried; the Americans, the
10 European Union, the entire NATO alliance, the only thing that matters to
11 them is that I should be convicted. And that is why they are going to
12 continue with their political pressure on the Court as they have been
13 doing so far, and I am calling upon to you resist this political pressure
14 because you have very strong arguments and you have not violated my trial
15 and procedural rights a single time so far, and I am truly grateful to you
16 for that.
17 Some other matters have been referred to here, questions of
18 financing. In this domain nothing has been done yet. This is a
19 requirement that has to be met before the trial starts. I've already told
20 you I'm not going to bring into question the beginning of the trial
21 because the question of finance is not being resolved. And if -- even if
22 my request to have my defence partially funded is rejected, I am not going
23 to oppose the beginning of the trial. So money is not going to be an
24 impediment but timely disclosure according to Rule 66 and 68 will be an
25 impediment. I will not go to trial without that. If this disclosure is
1 not carried out the trial cannot begin.
2 The Prosecution can say that first they are going to disclose
3 material for some witnesses according to Rule 66 and then subsequently for
4 others. But they cannot say that for Rule 68, because all Rule 68
5 material is something that I have to have before the trial starts. Why do
6 I need Rule 68 material once it -- the trial starts? If I cannot use that
7 to cross-examine the Prosecution witnesses? I don't need the material
8 later. I have to have all of this in a timely fashion before the first
9 Prosecution witness appears here. All the Rule 68 material. Because it's
10 not for the Prosecution to carry out a selection of this material and to
11 say that I'm going to need this and I'm not going to need that. I'm the
12 only one who can carry out this selection. For me it is important that
13 they have stated and confirmed to you in writing that there are 206.000
14 pages of exculpatory material so now counsel for the Prosecution cannot
15 come up and say, not all of this is potentially exculpatory, we are going
16 to reduce this to 100.000, 50.000 or 20.000 pages.
17 That is impermissible. This directly violates my rights. They
18 have to bring all 206.000 potentially exculpatory pages in Serbian on
19 paper. Before this is done, a regular trial can not start. If the trial
20 is going to be irregular, if it's going to be pro forma, if you're only
21 going to have summary proceedings without giving me the right -- the
22 possibility for the right kind of defence, then that is not possible. At
23 the last Status Conference, the Prosecution objected to me that I'm
24 trying-- they said that in one of their submissions, that I'm forcing them
25 to carry out a reduction. Of course, it is in my interest to force them
1 into reduction. It is not my fault that the trial is running late, almost
2 five years at that. I was trial-ready on day 1. It is their fault.
3 However, the requirement is that they meet the necessary requirements. I
4 never did anything that delayed the beginning of the proceedings, except
5 insisting on my procedural rights. I still insist on my procedural
6 rights. If my procedural rights are brutally trampled upon by not
7 disclosing all Rule 68 material to me, these 206.000 pages, or if there is
8 an unjustified delay in terms of disclosing Rule 66 material, whose fault
9 is that? It certainly cannot be my fault.
10 As for my legal advisers, I consider that question to have been
11 resolved. Three of my legal advisers have been registered here, all three
12 of them have degrees in law. One of them is an attorney-at-law but he
13 didn't even have to be an attorney-at-law. My main legal adviser is not
14 an attorney-at-law and he turned out to be a more capable lawyer than all
15 the lawyers that had appeared before this Court until now. You will see
16 that on the basis of the motions that he wrote. About 90 of them were
17 written by him because after a while I told my legal advisers that
18 everyone of them should sign or rather everyone of them should put their
19 names down, whoever drafted these motions. That is Zoran Krasic and no
20 one can bring into question the fact that he is not a lawyer. I meet the
21 requirements for Defence counsel. I'm a university professor of law. And
22 that suffices. My Defence team has a lawyer who meets all the
23 requirements, and that's me.
24 The rest don't have to meet any of these prerequisites, they work
25 on my instructions, my orders, my suggestions, and I first check whether
1 they did their job properly and then I sign their motions and then send
2 them on to you. So that question has been settled. They don't know the
3 English language. I already told you once, Judge, that sufficient
4 protection for me is that I will get videotapes every day with complete
5 recordings of the proceedings of a given day. That is sufficient for me,
6 that I have proof that something was said or that something was not said.
7 And you may be exposed to the danger of an incorrect transcript
8 and then you have to find someone in the Registry to check the transcript.
9 I assume the transcripts have to be checked, that what is typed in here
10 at the time does not stay that way, that somebody compares the recordings
11 with the transcripts at the end of the day because if this is not done,
12 the transcripts will be a disaster. I am not able to and I will not
13 monitor the transcript. What matters to me is that the video recordings
14 be delivered to me and that will be my proof that something was said or
15 not said. That suffices. I cannot do the ICTY's work here and monitor
16 the transcript. The transcripts are here for you. They will be left for
17 history and it's up to you to see to them.
18 Now we come to the last issue, and that is mentioning the names of
19 protected witnesses. It would be in the interest of the Prosecution to
20 disclose to me, as soon as possible, the names of all the protected
21 witnesses and I guarantee that neither I nor the members of my team
22 assisting me in my Defence will ever attempt to contact those protected
23 witnesses in any way. Otherwise, a situation will arise where, searching
24 for Defence witnesses, we might come across a protected Prosecution
25 witness, that person would not tell us that he's already a Prosecution
1 witness and might agree to testify for the Defence, and that name will be
2 found on the list of Defence witnesses. The Prosecution will then
3 complain that we are stealing their witnesses. That's not just a
4 hypothesis, it's a realistic possibility. And that can be solved if the
5 Prosecution immediately provides a list of all their protected witnesses
6 because then I will know that I should not contact those people for any
7 reason. Otherwise, I will be constantly declared guilty of things that
8 are not my fault but are their fault.
9 Let me remind you of something that happened in 2005. In a
10 conversation with a friend of mine, I mentioned the name of a man about
11 whom I had heard that he had been a false witness in another case. I
12 won't mention any names, so don't worry. And then suddenly I am denied
13 all communication for two months by phone with my advisers, family visits,
14 even my mail, my official mail was not delivered, which contained some
15 submissions, for the duration of that ban. They imposed a sanction on me
16 without holding disciplinary proceedings beforehand. I had heard that
17 somebody had been a false witness and I said, well, stop having any
18 dealings with him. It's my right to speculate about some people. It was
19 not a person whose name was disclosed to me by the Prosecution as a
20 protected witness.
21 Later on, the Prosecution said that that person would be a
22 protected witness in my case. Well, now that I know that, I will never
23 mention his name again. But if I don't know that somebody is a protected
24 witness in my case, I can mention any name I know, any name I've heard of,
25 I could mention somebody's name and you will immediately intervene and say
1 no, no, you can't mention that name, he is a protected witness. Well,
2 then, you are revealing to me that that person is a protected witness. I
3 didn't know that before. So I have forced you to disclose to me the name
4 of at least one protected witness before you had planned to, even though I
5 have to suffer for two months in the Detention Unit by being denied all
6 contacts. Two close relatives died in the course of those two months and
7 I didn't know about it. I didn't know two of my relatives had died.
8 These are then all the possibilities opened up by this manner of
9 proceeding on the part of the Prosecution.
10 There is no reason for the Prosecution not to disclose all those
11 names right away. If they do, we will have fewer problems of this kind.
12 As regards documents, something that has been happening on a
13 regular basis for the last five years is happening again. The Prosecution
14 is delivering to me witness statements, and there is a lot of confusion in
15 this. Sometimes they deliver to me statements that have already been
16 disclosed. I get, for example, one witness statement and I know for a
17 fact that the same witness made several statements, which I haven't got
18 yet. I get a statement from a potential witness and I know that that
19 witness testified in other cases. I'll mention a name, Miroslav Deronjic,
20 because he's not protected, and I have received only his statement but not
21 his testimony in the Milosevic case and in some other cases I think it was
22 Krajisnik but I'm not sure about that. So they give me crumbs.
23 I think, Your Honour, you should rule that when they give me --
24 when they disclose to me something that pertains to a witness, they should
25 give me the complete material pertaining to that witness, not piecemeal.
1 If they have a hundred witnesses, then in the order in which these
2 witnesses will be called in the courtroom, let them disclose to me the
3 complete material, witness number 1, here's the complete material for
4 witness number 1, all the statements he made, all his testimonies in other
5 cases, if there are any and all the exhibits to be tendered through that
6 witness. However, they are creating complete confusion. They are
7 preparing hundreds of documents to be introduced along with the name of a
8 witness who is deceased. They are preparing hundreds of documents that
9 have nothing to do with my case. They are doing this in an automatic
11 I'm going to insist on something that has not been respected in
12 other proceedings. I have the right to put at least one question to each
13 Prosecution witness in connection with each exhibit tendered through that
14 witness. I have to ask him has he ever seen a document? For example,
15 Witness X appears and they say we want to tender 300 documents through
16 this witness. I have to put at least 300 questions to that witness. Have
17 you seen this document, have you seen this document, have you seen this
18 document, have you seen this document? Otherwise, what is the basis for
19 tendering those documents through that witness? It's a problem I have
20 seen in other cases and I will not just let this be done in my case.
21 Otherwise, you can have a truck-loads of documents being brought in.
22 There is something else I've learned here and I'll finish with
23 that. So far, the Prosecution has been quite -- in quite a lull. There
24 has been a huge number of cases here, and large numbers of Defence
25 counsel, whether Serb, Muslim or Croat, have appeared here and they have
1 falsely signed statements that they speak English or French, whereas the
2 vast majority of them don't actually speak those languages. They had
3 documents in foreign languages which they never read or looked at, they
4 may have searched through them, and then they appeared in the courtroom to
5 defend their client, and the Prosecution has become complacent because of
6 that situation.
7 In my case, there is an accused defending himself, acting on his
8 own behalf, and insisting on all his rights, refusing to waive any of his
9 procedural rights and now nothing can be disclosed in English, nothing can
10 be disclosed that is not on paper and the Prosecution has been doing
11 nothing for almost four and a half years, and now they suddenly say that
12 the Defence should finance this, should provide 75.000 euros to have
13 transcripts put on paper, which are in audio form in the Serbian language
14 or to pay for translation from English into Serbian. Now the Defence has
15 to do this. It's expensive, they don't care how the Defence is going to
16 finance this.
17 No, it's up to them to do that. I've had a lot of costs. I've
18 had three judgements in the Rwanda Tribunal translated into Serbian
19 because I needed them because they are referring to them. I asked the
20 Registry for this. Registry said they were not duty-bound to provide
21 this. I asked them -- I asked the Rwanda Tribunal and they said that they
22 were not duty-bound to do that. These are three judgements pertaining to
23 genocide that dolus specialis is required that they publicly call for
24 genocide. Something like Streicher in the Nuremberg proceedings. They
25 are referring to this in my case in order to artificially introduce hate
1 speech, and of course I need to have arguments to counter this and I will
2 do that in my objection to the indictment. Dolus specialis being required
3 for genocide cannot be transferred to my case where I made some speeches
4 which contained hate speech and now they are attributing to me that I
5 incited someone to kill or rape or murder somebody or burn down a
6 religious building. Dolus specialis has to be proved. This was an
7 expense that I had to bear.
8 Then I had to have the expense of translating the entire Limaj
9 judgement into Serbian because registry refused to have it translated into
10 Serbian. And I need that judgement. Well, now it's been translated, I
11 received it the other day, 400 pages. So my costs are enormous. I am in
12 debt. I have huge debts. And so I cannot take upon myself the duties of
13 the Prosecution. I have enough on my plate already. And I cannot,
14 therefore, acquaint myself with the entire jurisprudence of this Tribunal,
15 a vast number of decisions which might be relevant for me have not been
16 disclosed to me. Maybe four or five such decisions have been disclosed to
17 me, as have all the judgements that exist in Serbian. But I have not
18 received all the judgements that exist before this Tribunal. All the ones
19 that have been delivered to me in Serbian, I have already read, I've made
20 good use of my time, whereas the Prosecution waited and bided their time,
21 expecting that I would not be able to defend myself, that I would be
22 defended by false counsel who would be acting on behalf of the Prosecution
23 rather than on behalf of my defence and that they would have an easy job
24 as they did in some other cases.
25 But that will not happen. I will either defend myself or I will
1 no longer be alive. I will not insult anyone in the courtroom, I will not
2 cause any physical incidents, and they cannot prove that I'm crazy. Who
3 is crazy? Those people are crazy who thought they could deprive me of my
4 procedural rights. I hope you'll agree with me, Judge. It is they who
5 have turned out to be crazy, not I, who have been defending my procedural
6 rights. I may be madly courageous or madly able, but I'm not mad.
7 MS. DAHL: Your Honour, I would like to object on put on the
8 record again that Mr. Seselj is speaking --
9 THE ACCUSED: [Interpretation] You're interrupting me again for no
11 MS. DAHL: [Previous translation continues]... and impugning the
12 motives of the Prosecution without cause and I repeat my request that he
13 be directed to address only the judge.
14 JUDGE ANTONETTI: [No interpretation]
15 THE ACCUSED: [Interpretation] I didn't say anything to counsel,
16 Your Honour, I was addressing only you, and I have not said anything that
17 is offensive to the Prosecution. I said in principle that those people
18 are crazy who thought they could deprive me of my procedural rights. I
19 have the right to say that. It's not personal. I have not identified any
21 Now, one more point and I'll finish.
22 There were several submissions filed by the Prosecution in June,
23 where they wished to bring into question Your Honour's ruling that
24 everything should be disclosed to me in Serbian and in writing, and also
25 my criminal report and my request for a review and I have also seen the
1 Prosecution reply, response, and they list a number of statements I made
2 and things I did, and generally speaking they want to prove that I am a
3 very bad man and that that is a reason to deprive me of my procedural
5 Let me tell you: I accept that I'm a bad man, not only a bad man
6 but the worst man in the world. The fact that I'm accused of the most
7 heinous war crimes shows that I'm a bad man. Of course, the Prosecution,
8 part of the public, the Western powers all start from this viewpoint, but
9 even if I were the worst man in the world, that would not be an argument
10 to deprive me of a single procedural right, because procedural rights
11 exist precisely to protect criminals, bad people, who are presumed
12 innocent until proved guilty. So I accept that I am the worst person in
13 the world but I refuse to have any of my procedural rights denied for that
14 reason. I have rights on which I insist.
15 Thank you for listening to me and hearing me out.
16 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, first of all, nobody
17 wishes to deprive you of your rights, and I least of all. You do have
18 rights. This has been acknowledged. And you should exercise your rights.
19 If you're being deprived of your rights, there is no fair trial. In
20 that case, you would be quite right to question those people who have
21 deprived you of your rights. As I don't wish to deprive you of your
22 rights, I shall -- I'm about to look into those important matters you have
23 raised. A while ago, I indicated that the trial could start on the 6th of
24 November. You gave your personal view on the matter which is very
25 important and you expressed it in two ways. You first of all said that
1 the indictment is challenged, I'm going to get back to this, and as far as
2 you're concerned it would be difficult for you to start on the 6th of
3 November. And you then addressed another item, which stands in the way of
4 the commencement of trial, which is the issue of disclosure of material
5 pursuant to Rule 68 and disclosure of 206.000 documents.
6 Now, as far as the indictment is concerned, the situation has
7 become even more complicated. Let me sum it up. The indictment, which
8 was the support medium of the trial that was due to start on the 6th of
9 November, the Trial Chamber has entitled you to file a preliminary motion.
10 So, this was pending. But after that, the Prosecution on the 25th of
11 June, namely a few days ago, has just filed a modified indictment, which I
12 have before me, which contain a number of changes. Certain words have
13 been taken out. Other words have been changed. And in paragraph 5 of the
14 indictment, for instance, anything relating to the commission has been
15 deleted. In paragraph -- in other words, paragraph 5 is now only a
16 four-sentence long paragraph. As the indictment has been modified, you
17 are entitled to file a preliminary motion. You have 30 days to do so, as
18 soon as you have the new indictment in your own language, i.e., the
19 modified, the amended indictment. I don't know whether you're aware of
20 this but the Prosecution has applied the Brdjanin case law on this matter
21 regarding JCE and the Prosecution has also done away with a number of
23 So we now have two indictments. The first indictment was an
24 indictment on which you filed preliminary motion and we now have a second
25 amended indictment. In your written submissions, you may join the two
1 indictments and file a preliminary motion on both the first and the
2 second, but the second is just an extension of the first one, a modified
3 version of it. Now, this starts running 30 days from the day you receive
4 the indictment. You will have to respond. The Prosecution might file its
5 response. The Trial Chamber will then hand down a decision, but as far as
6 the indictment is concerned, I don't have full powers, because this falls
7 within the competence of the Chamber in its entirety and the Chamber will
8 have to hand down a decision on this.
9 After that time, you will be able to ask or request certification
10 to appeal. I think you mentioned this. I don't know. The Appeals
11 Chamber will then have to rule on the matter. Given the time-line in
12 question, I think we will not be able to start in November. But my
13 working assumption, which started on the 6th of November, for the date of
14 commencement of trial, was something which I didn't think would be
15 challenged by the Appeals Chamber but you are of course entitled to seize
16 the Appeals Chamber on this matter.
17 So on the 6th of November, because of the question of the
18 indictment, we might have to postpone the commencement of trial.
19 The second issue which you mentioned, which I shall mention again
20 when we resume after the break, we have to have a break for technical
21 reasons, the question of the 206.000 pages which I shall address after the
22 break. We have to adjourn for 20 minutes in order to change over the
23 tapes and we shall resume again in 20 minutes' time.
24 --- Recess taken at 10.35 a.m.
25 --- On resuming at 11.00 a.m.
1 JUDGE ANTONETTI: [Interpretation] Very well. The hearing is
3 I am now going to address the second issue raised by Mr. Seselj in
4 relation to Rule 68, exculpatory evidence. Mr. Seselj mentioned 206.000
5 pages. According to him, they are mentioned in the motion for
6 reconsideration of the decision I had issued. Could the Prosecution
7 enlighten me on this?
8 MS. DAHL: Yes, Your Honour. The problem identified by Mr. Seselj
9 with regard to managing the information that is being disclosed to him on
10 paper, I think highlights one of the difficulties of self-representation
11 that comes with the exercise of that right.
12 We are methodically reviewing all of the disclosure in the past in
13 light of the recent decisions to ensure full and expedient compliance with
14 our disclosure obligations. Each receipt that we provide to Mr. Seselj
15 indicates the nature of the rule-based disclosure obligation being
16 satisfied, that is we identify with specificity what portion of the rules
17 the material falls within. We include an index of the material that gives
18 a brief overview, and we trust that that will assist him in maintaining
19 the organisational structure that serves his preparation needs as well as
20 organises the material for preparation during -- for preparation for
22 I would note with regard to the items disclosed in the past in
23 electronic form, under the name of Rule 68, that those receipts, and I'm
24 speaking specifically about receipt number 10 from September 2004, do not
25 differentiate the application of the rules as they are today. Rule 68 has
1 five parts, and the rulings of this Chamber regarding Rule 68(i), that is
2 material within the actual knowledge of the Prosecutor that may suggest
3 innocence, mitigate guilt or affect the credibility of the Prosecution
4 evidence, we are reviewing material -- we are reviewing the prior
5 disclosure to determine whether it can be categorised. Presently the
6 large volumes of material tendered in electronic form would appear to fall
7 within sub-prong 2, and we are looking at the search terms that produced
8 the search results that are included in those disks to determine whether
9 or not they would be categorised under Rule 68(i).
10 The material on disk represents the search results based on
11 electronic rules, and represents an electronic collection tendered in that
12 format for the purposes of searching for terms that can be located with
13 the search engine. We will not print or translate materials on disk. The
14 disclosure of material in electronic collection is dependent on the
15 electronic qualities of the targets of the search and the efficacies of
16 the search result.
17 Since 2004, our evidence collection has been subjected to
18 improvements in technology that allow the identification of search terms
19 with more precision, and we will discharge our disclosure obligations
20 under Rule 68(i) as material comes within our actual knowledge, and if the
21 accused wishes to review in electronic form collections of relevant
22 material that fall within Rule 68(ii) we will authenticate those available
23 to him in electronic form.
24 We reject his broad and general criticism about compliance. Our
25 intention is to ensure a fair trial. I will not rush and make mistakes
1 and give him material that is disorganised or unlabelled. I will make
2 sure that the relevance of the material that is provided to him is plain
3 and that we are scrupulous in disclosing material that is required under
4 the rules and will serve his preparation of the defence.
5 JUDGE ANTONETTI: [Interpretation] Ms. Dahl, here are my comments
6 to Rule 66 and 68. Rule 68 -- 66 gives you the obligation to disclose to
7 Mr. Seselj, in his own language, all material which were used to draft the
8 indictment. These are documents that were brought before the confirming
9 judge, the judge who confirmed the indictment. Well, the accused must
10 have them in B/C/S. That's a rule that is applicable to all because the
11 indictment is constructed on material, and it is normal for the accused to
12 be aware and to be informed of the material. The documents are going to
13 be useful since you're going to have a witness list which is going to list
14 the documents witness by witness. That's Rule 66(A)(i). Now, we have
15 Rule 66(A)(ii). You are to provide Mr. Seselj with copies of witness
16 statements which you intend to call to testify at trial, and copies of all
17 transcripts and written statements further to Rule 92 bis, 92 ter and 92
18 quater. So he needs to have them too.
19 Nobody can help this. Nobody can waive this. And he needs to
20 have them in his own language.
21 Now, as to Rule 66(B), at Mr. Seselj's request, you must allow him
22 to inspect any books, documents, photographs and tangible objects in your
23 custody or control which according to him are material to the preparation
24 of his defence. But this can be done electronically.
25 MS. DAHL: If I may interrupt, we had considered based on the
1 prior Trial Chamber's rulings, that Mr. Seselj had made a request under
2 Rule 66(B) for material mentioning witness testimony mentioning him by
3 name. That's being done in paper for your information, so we have gone
4 beyond simply providing access in electronic form. I don't -- I don't
5 believe that he's made other specific requests triggering this --
6 JUDGE ANTONETTI: [Interpretation] Very well. If you've done so,
7 it's even better.
8 Now, as to Rule 68, I sometimes find it difficult to know why we
9 have this rule in the rules. 68(i): "The Prosecutor shall, as soon as
10 practicable, disclose to the Defence any material which in the actual
11 knowledge of the Prosecutor may suggest the innocence or mitigate the
12 guilt of the accused or affect the credibility of Prosecution evidence."
13 We have two categories of documents. We have documents that may
14 indeed suggest his innocence. He needs to have them and if he has them,
15 this must cause the indictment to be amended.
16 The other category is documents that might affect the credibility
17 of other evidence. And he needs to have them too.
18 He needs to have those documents in his own language. That's
19 Rule 68(i). However, Rule 68(ii) says that: "The Prosecution shall make
20 available to the defence, in electronic form, collections of relevant
21 material held by the Prosecutor, together with appropriate computer
22 software with which the defence can search such collections
24 Let me take an example. It could be that in other cases, there
25 may be links with the indictment against Mr. Seselj and you may think it
1 might be useful for Mr. Seselj to have them. But then you convey that to
2 him electronically and it's up to him to carry out the research. However,
3 documents under Rule 68(i) have to be disclosed to him in his own
4 language. At the latest Status Conference, I asked you to list very
5 clearly all the documents that had been disclosed to him under Rule 66,
6 and to check that the documents had at the very least been already listed
7 in the Rule 65 ter list of exhibits and as far as the remainder of
8 documents is concerned, that you do not plan to use, that he had them in
9 your -- in his own language. That's Rule 66. I don't know what the
10 documents are that fall under Rule 68. I don't need to know that because
11 this is something between you and him. You are under the obligation,
12 should you have a document, an exculpatory document, under the obligation
13 of disclosing that to him. But the Chamber does not know at all what the
14 document is.
15 My concern is as follows. In order to prepare Mr. Seselj's trial,
16 for him to have equality of arms and a fair trial, he needs to have made
17 available to him documents that may be useful to his case. Based on that,
18 I have several questions for you, Ms. Dahl.
19 At the Status Conference on the 2nd of May, Mr. Seselj asked for
20 transcripts of the meetings between the Prosecutor and Mr. David Hooper to
21 be disclosed to him; was that done or not?
22 MS. DAHL: Your Honour, I am not aware of any transcripts of any
23 meetings between the Prosecutor and Mr. Hooper.
24 JUDGE ANTONETTI: [Interpretation] Well, look into this, please,
25 because I'm going to put the question again to you on the 17th of August.
1 Then there is the issue of the 38 binders. At the last Status
2 Conference, I had suggested the following solution. I had asked you to
3 draw a list of the documents that had been disclosed to O'Shea and Hooper
4 under Rules 66 and 68, and based on that, that you should convey this to
5 the Registry, which was going to look into the binders, take out of those
6 binders the documents that were relevant, and send them to Mr. Seselj. My
7 question is: Have you done this?
8 MS. DAHL: Yes, Your Honour. I have the list. It's several
9 thousand pages long. It's in the form of an Excel spreadsheet. It
10 includes reference to every single exhibit under the prior exhibit list
11 numbering system, and we'll make that available to the Registrar on a disk
12 format or on paper, whatever is most expedient for searching it.
13 JUDGE ANTONETTI: [Interpretation] You are telling me that this is
14 several thousand pages long, line 23, page 42. This is what I'm reading.
15 And you say that it is in the form of an Excel spreadsheet. Two
16 questions. Well, now normally, you should be doing this, but the
17 Registrar might do it. You need to have this printed out. And my other
18 question is whether the documents have been translated into B/C/S?
19 MS. DAHL: With regard to the materials disclosed to prior
20 counsel, they were disclosed as per the rules that applied to disclosing
21 to prior counsel. We are making arrangements to ensure that all of the
22 exhibits are made available to Mr. Seselj in paper and in Serbian, and we
23 consider that the revised exhibit list that we filed last Monday should be
24 the one that we work from because the renumbering eliminates the utility
25 of the material that was loaded into e-court for preparation for last
1 year's trial, and it eliminates or it creates -- it eliminates the utility
2 of the material disclosed to prior counsel. I found in engaging in the
3 work to renumber and declare relevance for all of our exhibits that I
4 could not simply use the old list and rearrange the numbering, that it
5 required going through each exhibit and we considered that the starting
6 point to assist Mr. Seselj would be to use the current list so that he's
7 not required to remap or rearrange old material that either exists only in
8 English or has not been improved according to the current rulings.
9 JUDGE ANTONETTI: [Interpretation] It is true, and I thank you for
10 this, because I noticed that you had really done some titanic work, you
11 had renumbered the documents, complying with my instructions, with, as
12 number 1, the oldest document. From memory I think it's back to 1844.
13 And then you ordered the documents accordingly. From memory I seem to
14 remember that there are close to 6.000 documents; is that right?
15 MS. DAHL: No, Your Honour. What I did to make sure that we had a
16 numbering system that could adapt if leave were granted to add additional
17 exhibits, is that I began with 1 and continued, all of the exhibits that
18 are actually documents. We then segregated and started a new numbering
19 series that grouped audio files, videotapes and other kinds of visual
20 pieces of evidence together as well as listing separately, under a
21 separate series of numbers in an abundance of caution, the witness
22 statements that we have tendered as evidence under the rules, either the
23 prior 89(F) or any of the permutations under the current Rule 92. And so
24 the numbering system assists in finding material quickly by its relevant
25 category. A lot of material was not dated and in different formats.
1 JUDGE ANTONETTI: [Interpretation] Very well. As to the work you
2 have done, what I'm asking, and I think that Mr. Seselj may ask a similar
3 thing, I'm asking you to put all these documents in binders with numbers
4 and to bring them to me, and if you do the same for Mr. Seselj, he will
5 have available to him in his cell all the Prosecution documents in
6 binders. So that he can immediately refer to the documents because
7 everything will have been ordered. Of course, if there is a number
8 referring to a videotape, well, he'll have the videotape as such, or on
9 CD, he can look at it straight away. How long do you need to make the
10 binders for the Pre-Trial Judge and for Mr. Seselj?
11 MS. DAHL: Well, I had inquired as to the production methodology
12 and we are hoping to have all the exhibits uploaded or installed in an
13 e-court module, and that gives us the facility to apply labels when we
14 print out the physical documents. We thought it would be unwise to
15 produce binders that did not have labels affixed to the document. I was
16 afraid that if a binder fell off a table and the contents were scattered
17 there would be no way practically to determine if it was Exhibit 1 or 2 or
18 3. So I want to have the labelling affixed. I'm hoping that the e-court
19 work will be done by the end of next week and then we will be able to
20 produce very efficiently the material in paper format in the order in
21 which it's numbered and the material that is in disk format, of course, we
22 will put with its numbers in pockets so that it can be maintained in an
23 organised manner.
24 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, this is what should
25 be disclosed to you, because what you are going to have is what I'm going
1 to have as well. Ms. Dahl has just explained to us that all the exhibits,
2 of which you already have a list because it was done in English, I'll give
3 you the floor in a minute, you should have this list. There are many
4 documents, and Ms. Dahl is filing this or uploading this in the e-court
5 system and once this is done, as soon as it is done, they are going to
6 prepare binders for us with the numbers of -- the document numbers and on
7 each document there will be a label with the e-court number. Is that
9 MS. DAHL: Yes, Your Honour, but I want to be sure that there is
10 an understanding that there is -- there are a number of documents that we
11 have requested in the context of the protective measures motion to have
12 disclosure delayed and there are also a number of documents that are
13 subject to restrictive conditions by the provider. Those -- that subset
14 has been redacted so I've separated those out and we've foreseen the
15 ability to add the documents in as ordered.
16 JUDGE ANTONETTI: [Interpretation] Very well.
17 Mr. Seselj, you have been listening to this. Do you have any
18 comments on this issue, the documents?
19 THE ACCUSED: [Interpretation] Judge, first of all, I would like to
20 draw your attention to the fact that there is a typographical error in the
21 Rules of Procedure and Evidence. For example in Rule 68, these are Roman
22 numerals i, ii, iii, iv, v, not i, double i, triple i, as the interpreter
23 has been interpreting for me. Obviously these are Roman numerals, and
24 it's a typographical error, the fact that they were not typed out as Roman
25 numerals. It's as if you could type out Roman numerals out that way, that
1 is how they have been represented here. Now, why am I particularly
2 referring to this? Because I want to be as accurate as possible in what
3 I'm going to say just now. The Prosecutor is consciously saying something
4 that is untrue. 206.000 pages of documents, according to Rule 68, pertain
5 to 68(i), so these are materials which according to the actual knowledge
6 of the Prosecutor may suggest the innocence or mitigate the guilt of the
7 accused or affect the credibility of Prosecution evidence. All 206.000
8 pages pertain to that.
9 Now, the Prosecution is in trouble because they have to submit all
10 of this in writing and in the Serbian language. Therefore, they want to
11 reduce this in a concealed manner and to present it to you that way. They
12 are trying to say that a lot of this is 68(ii) material, that this is a
13 collection of relevant material and so on and so forth. They would like
14 simply to eliminate a lot of these 206.000 pages or 260.000 pages.
15 They -- all these pages pertain to 68 (i), and you will see that from the
16 document that I invoked last time, the one from November, and I hope they
17 will submit that to you. So no reduction can be carried out there,
18 206.000 pages are the documents for which the Prosecution stated at a
19 given point in time that they could be potentially exculpatory material,
20 and all of that has to be submitted to me, not only to a have small
21 portion submitted to me and that I have to look through their collection
22 of documents in electronic form. So this is evasion of their
23 responsibility, their obligation.
24 JUDGE ANTONETTI: [Interpretation] [Previous translation
25 continues] ... I understood. Ms. Dahl, Mr. Seselj is raising a
1 substantial problem which I cannot settle right now because I don't have
2 all the necessary information but his argument is as follows: He says
3 that he'd been informed, under Rule 68(i) of the fact that there were
4 206.000 pages of documents that might be exculpatory material, but that
5 the Prosecution, as they realised it was impossible to disclose 260 pages
6 in hard copy and moreover to disclose them in B/C/S, actually sort of
7 shifts that material in 68(ii), actually shifts a great majority of those
8 documents under (ii) so that he's forced to search them electronically.
9 That's what he claims. I don't know. What do you think?
10 MS. DAHL: We disagree. I'm looking at the disclosure log records
11 of the material that was tendered to him and the receipts, and the rule
12 change created subcategories, and a lot of the disclosure that was
13 tendered in electronic form predates the rule change or is not
14 differentiated between 68(i) and 68(ii) and what I've explained is the
15 nature of electronic collections is that they are dependent on the quality
16 of the data and the efficiency and efficacy of the search engine. If Mr.
17 Seselj wants to see the disks that were tendered to him in electronic form
18 with a label of Rule 68, he is welcome to have them. He has refused them.
19 The passage of time means -- and the improvements to the
20 electronic -- if I may just quickly, I want to make sure there is no
21 misunderstanding is if we have documents that are disclosable under Rule
22 68(i) we will give them to him in -- or have given them to him with that
23 label in the format required by the Court. But the passage of time means
24 that if I were to run the very same search terms today, I would have a
25 better search result, and if we have material that's within our actual
1 knowledge that falls within the ruling of the Chamber to put it in Serbian
2 and give it to him in paper that will be done.
3 JUDGE ANTONETTI: [Interpretation] The advantage of this
4 contradictory system, this adversarial system, is to highlight a number of
5 issues and I'm discovering something new. You've just said that under
6 Rule 68, you did disclose to Mr. Seselj, who came to The Hague in 2003, a
7 number of documents, and then you are right in saying that Rule 68 was
8 amended. This was amended on the 21st of July 2004 -- 28th of July. I
9 remember this took place at the plenary session and the rule was amended.
10 The distinction was made between what is communicated in hard
11 copy and what is disclosed in electronic format. And in your submission,
12 you are saying that what had been provided in electronic format before was
13 still being disclosed electronically, and it's only after the 28th of July
14 2004, that you are under the obligation to disclose in hard copy anything
15 that comes under Rule 68(i). Is this how I should understand what you
16 have just said?
17 MS. DAHL: Not precisely, Your Honour, and I'm approaching the
18 problem pragmatically from a different direction. I am looking at the
19 change in the disclosure requirements that the Chamber has ruled to adapt
20 and effectuate Mr. Seselj's right of self-representation and I'm looking
21 at the fact that we have prior disclosure that doesn't have the label.
22 JUDGE ANTONETTI: [Interpretation] Ms. Dahl, just a minute. The
23 decision taken by the Trial Chamber, which one are you talking about? One
24 decision was taken during the pre-trial phase and then was handed down by
25 Trial Chamber I and the Trial Chamber that was supposed to try him and
1 then by Trial Chamber III, notwithstanding the decisions taken by the
2 Chambers I am under the obligation of compliance with the rules, and Rule
3 68, as it stands, I think. You have provided an explanation. I think I
4 understand where problem stems from. Out of these 206.000 pages that have
5 been disclosed to Mr. Seselj, this has been disclosed electronically
6 initially. And this is what Mr. Seselj is challenging. And you are
7 saying, yes, but Rule 68 was amended on the 28th of July 2004, and this
8 amendment means that anything that had been disclosed electronically could
9 remain that way, but now, as far as Rule 68(i) is concerned, you now have
10 to disclose material in hard copy. I don't think I have misrepresented
11 what you have said, have I?
12 MS. DAHL: No, Your Honour. The qualification is that the
13 receipts or the materials that labelled the electronic collections
14 previously described indicate the search terms and produce a body of
15 electronically held evidence in conjunction with the ability to look at
16 it. The receipts don't indicate whether it's Rule 68(i) or Rule 68(ii)
17 which I think for purposes of ensuring compliance with the orders of this
18 Court in June 2007, I need to make sure that he has -- Mr. Seselj has
19 received in paper, in Serbian, everything under Rule 68(i). I can't
20 recreate those disks and then decide, is it -- which paragraph it falls
22 If he wants to use the old disks, they are available to him. What
23 I'm saying is that with the rules as they stand now, if we have material
24 within our knowledge that falls within Rule 68(i), it will be disclosed
25 per the orders of the Chamber in the appropriate format to facilitate his
1 preparation of his defence. Because of the nature of electronic evidence,
2 evidence held in electronic format, I won't get the same results, I'll get
3 a better set of results, frankly, if I run the same search terms again but
4 I consider that those materials under the old rules that were provided
5 without differentiation of whether it was simply material relevant to the
6 preparation or under the more narrow consideration of exculpatory, that
7 label can't be superimposed on this material and to do so would produce an
8 erroneous result and I don't want it to be misrepresented that there is
9 400.000 pages of exculpatory material. That's simply not true. If I were
10 to count the number of pages that truly contradict our theory of the case,
11 they are extremely small and they have been disclosed with the appropriate
12 labelling so that we have brought them to his attention as such.
13 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, I shall give you the
14 floor, but I was going to say that the ball is in your court, because
15 these 206.000 documents have been disclosed to you in electronic form --
16 in an electronic format before Rule 68 was amended on the 28th of July
17 2004. The Prosecution was working along those lines. In June 2007 I
18 handed down a decision stating that on the basis of these documents, the
19 Prosecution was under the obligation to disclose in hard copy all the
20 documents that come under Rule 68(i). And the Prosecution says that it
21 has complied with its obligation, and the Prosecution adds that under
22 Rule 68(i), there are not thousands of documents, they are just a few
23 documents. That is true.
24 As a rule, if there were thousands of documents, it would be
25 difficult to understand that we have an indictment. You can't have an
1 indictment if we have a whole series of exhibits that suggest the
2 innocence of the accused. So the Prosecution has said, after having
3 selected the documents, they have indicated to you which documents come,
4 strictly speaking, under Rule 68(i) and which documents are those
5 documents which should be disclosed to you in hard copy and in Serbian.
6 As you know, it is the Prosecution who states that this is -- it comes
7 under Rule 68(i) or under Rule 68(ii), and the Prosecution may feel that
8 this is not exculpatory material. So this is what the problem hinges on.
9 You may have made a mistake, Mr. Seselj, and you may believe that these
10 206.000 documents all come under Rule 68(i).
11 THE ACCUSED: [Interpretation] Judge, I think it's high time you
12 impose certain sanctions on counsel for the Prosecution because she is
13 consciously deceiving you in relation to certain facts. You yourself have
14 stated that the rule was changed on the 28th of July 2004, and then this
15 was introduced under Roman (ii), as far as I can recall. Those 207.000
16 documents under Rule 68, they tried to hand those to me on the 30th of
17 September 2004, a full two months after the rule was changed, and let me
18 draw your attention to one more point, which is my crucial piece of
19 evidence that they are consciously deceiving you.
20 Rule 68(i) refers to disclosure of evidence, to make the
21 distinction as clear as possible, whereas Rule 68(ii) makes available a
22 collection of relevant documents. This is not disclosure of evidence. It
23 is simply the Prosecutor's obligation to make available to me relevant
24 collections of material so that I myself might possibly find a document I
25 might find useful which they have not noticed. And that is an essential
1 difference. In this paper of the 6th of November, actually it was
2 delivered to you on the 2nd of November, it says clearly Rule 68
3 disclosure of evidence. What evidence? Potentially exculpatory evidence.
4 It doesn't say here access to collections of documents. It refers to
5 disclosure of evidence, 207.000 pages of relevant -- of relevant
6 exculpatory evidence exists.
7 I know what I've been accused of. There have been hundreds of
8 pages of potentially exculpatory material in other cases too. This was
9 material that a representative of the OTP thought at some point that it
10 might be exculpatory but it might be not. It's up to me to decide how to
11 use this material, and whether to use it or not, but I must have it
12 available. These 207.000 pages do not refer to collections of materials
13 which I might search. These are 207.000 pages of evidence. What kind of
14 evidence? Potentially exculpatory evidence. So don't allow them to
15 continue deceiving us in this way. They have to fulfil their obligations.
16 Last year, they made a mistake in admitting that those 207.000
17 pages exist, and now they want to retract this. They want to withdraw,
18 they want to eliminate this and I will not allow it. Their collections of
19 relevant material contain millions of pages. Their collections of
20 relevant material contain all the documentary material which is not under
21 an embargo, as far as I'm concerned. There might be materials which they
22 do not want to disclose to me because they refer to protected witnesses or
23 documents protected in other cases, but what they could make available to
24 me is millions of pages of their collections of documents. This has
25 nothing to do with 68(i), the disclosure of evidence. It says here,
1 Rule 68, disclosure of evidence. It's potentially exculpatory evidence.
2 This evidence has to be disclosed to me.
3 JUDGE ANTONETTI: [Interpretation] Ms. Dahl, Mr. Seselj has just
4 made a series of comments which require my attention. As far as the table
5 of disclosed documents is concerned. Now, Rule 68, on the 9th of February
6 2004, the accused has received 274 pages in B/C/S, 163 in English, in a CD
7 format which he refused. But I realise that no distinction has been made
8 between (i) and (ii). Then on the second of February 2004 he has been
9 given documents which he accepted in hard copy. Then on the 7th, on the
10 24th of May 2004, namely before the Plenary Session, he was given
11 documents which he accepted. So the only problem with page 1 is item 5,
12 which indicates that he did not accept the documents. On the 8th and the
13 9th, for item 8 and 9, on the 3rd of September 2004, in other words, after
14 the Plenary Session, after the session, the distinction had been made
15 between (i) and (ii) and 18.000 pages had been disclosed to Mr. Seselj in
16 electronic form, and Mr. Seselj did not accept the latter. Any legal
17 expert in his first year of training understands that the distinction must
18 be made between the (i) and the little (i). Item 10, on the 30th of
19 September you disclose a CD containing 207.000 pages, and that's where the
20 problem lies. Why are there 207.000 pages that have been disclosed? Does
21 this come under the (i) or the (ii), the first or the second paragraph of
22 Rule 68? Because - I'm going to give you the floor because I'd just like
23 to finish - you were under the obligation in September 2004 to disclose to
24 the accused in hard copies anything coming under Rule 68(i) and you sent
25 this to him in electronic format. On the 27th of November, same thing
1 happens, but he receives a piece of paper and accepts it. But he, on the
2 28th of January, he is being given 343 pages and a number of pages in
3 B/C/S. He does not accept it because it is sent in a CD form.
4 On the 23rd of September 2005, he receives the 14 statements which
5 he accepts because these were sent in hard copy. On the 11th of October,
6 2005, a number of documents are sent back because they were only partially
7 translated from what I understand, and this was sent in hard copy. And
8 I'm going to finish with this. There are still a few left. On the 5th of
9 April 2006, he accepts hard copy documents, so that's not a problem. On
10 the 29th of June, he accepts a number of hard copy documents. That's not
11 a problem. On the 25th of September, we encounter a problem because it's
12 Mr. Hooper who signs the receipt, and this is a CD which contains a number
13 of interviews, 75 pages of various statements, 68(i), 68(ii), I don't know
14 which part of the rule these come under. Then on the 16th of October
15 2006, Mr. Hooper receives one page, I don't know what this means, and then
16 lastly, on the 19th of October, Mr. Hooper signs the receipt for 50 pages.
17 We don't know whether it comes under (i) or (ii). So the problem occurs
18 for item 10 where on the 30th of September 2004 he received 207.000
19 documents. I'd like to understand what is happening here. Does this come
20 under (i) or (ii), the first or the second paragraph of Rule 68?
21 MS. DAHL: There is an error in the premise of your question,
22 Your Honour. Until the decision of June 7, 2007, there was no obligation
23 on -- held by the Prosecution to disclose to Mr. Seselj in paper form. To
24 the contrary, the decision of 4 July 2006 --
25 JUDGE ANTONETTI: [Interpretation] I disagree with you, Ms. Dahl.
1 The rule was amended on the 28th of July 2004. The rule stipulates that
2 the Prosecutor provides any material which might be of an exculpatory
3 nature to the accused, and this is done the way it should, since the
4 inception of this Tribunal, in hard copy. But I attended the Plenary
5 Session, so a discussion followed at the Plenary Session, as there are
6 other documents that could be of interest to the accused, the accused can
7 then ask to have these documents. In that case, this can be forwarded in
8 electronic -- in an electronic form. This is the tenor of Rule 68. This
9 is why, when the decision was taken in June, I asked you to forward any
10 exculpatory material in hard copy coming under paragraph (i). There is no
11 mistake in the premise here. I took part in the vote.
12 MS. DAHL: With respect, Your Honour, your view of Rule 68(i) is
13 not generally shared and is in fact contrary to the decision of Trial
14 Chamber I on 4 July 2007 which authorised the Prosecution to make
15 disclosure in electronic form --
16 JUDGE ANTONETTI: [Interpretation] Well, we have nothing to do with
17 Trial Chamber I any more. We now have a new Chamber, and I have full
18 powers and so I order you to disclose to Mr. Seselj any exculpatory
19 material coming under Rule 68(i).
20 MS. DAHL: Yes, Your Honour, but I want to --
21 JUDGE ANTONETTI: [Interpretation] [Previous translation
22 continues] ... out of these 207.000 documents, that's five, 10, 20, 30, I
23 don't know, it's for you to select these documents, and to disclose them
24 to him.
25 MS. DAHL: We understand what the obligation is and the ruling of
1 the Trial Chamber. The point that I think there is still disagreement is
2 whether our prior attempts to discharge our obligations were in compliance
3 with the rules. And they were in strict compliance with the orders of the
4 Trial Chamber that were upheld as a matter of law by the Appeals Chamber.
5 And we respect that this Chamber has taken a different view under its
6 authority to manage the trial and we are endeavouring to make sure that we
7 have disclosed everything required by this Trial Chamber in the form that
8 you have spelled out.
9 You're asking me to go back in time and make a declaration as to
10 the nature of documents that were disclosed in electronic form. That I
11 cannot do. And frankly, to spend precious resources in a forensic
12 expedition into these disks does not serve the fact that we need to move
13 forward in the disclosure and make sure that material that is under
14 Rule 68(i) is disclosed in a timely manner. I can't add labels to
15 receipts that aren't there, and I have a different set of software and a
16 different set of evidence that has been improved with the ongoing
17 improvements in technology. There is an entire electronic disclosure
18 suite that is available to all accused in this Tribunal that is constantly
19 being improved to ensure that people can find quickly relevant information
20 and that resource is available to Mr. Seselj.
21 JUDGE ANTONETTI: [Interpretation] I think here we are talking
22 about very crucial point, the rights of the accused. The accused is
23 entitled to have access to any exculpatory material or any other
24 documents. You are telling me now, and I am very fortunate to be the
25 Pre-Trial Judge in this case, which means I can address these issues in
1 detail, and you are telling me that you are unable to give Mr. Seselj
2 those documents coming under Article -- Rule 68(i) because they are lost
3 in a swathe of 207.000 documents.
4 MS. DAHL: No, Your Honour, no.
5 JUDGE ANTONETTI: [Interpretation] That's what you are saying.
6 MS. DAHL: That is not what I'm saying. I'm saying that if we
7 have documents within our actual knowledge that fall within the remit of
8 Rule 68(i) they will be disclosed but the prior disclosures of electronic
9 collections under the name of Rule 68 did not differentiate between 68(i)
10 and 68 little (i) and in looking for the search results --
11 JUDGE ANTONETTI: [Interpretation] Don't play on words, Ms. Dahl.
12 On the 30th of September 2004, we have a CD-ROM which contains 207.010
13 pages. This CD-ROM on the 30th of September is stamped and comes.
14 THE INTERPRETER: Interpreter's correction: Comes under Rule 68.
15 JUDGE ANTONETTI: [Interpretation] Out of these 207.000 pages, how
16 many pages actually come under Rule 68(i)? That's my question. That is
17 the essence of the matter here. How many pages come under Rule 68(i),
18 which at the rule means you should look at these 207.000 pages and forward
19 them, and understand what comes under Rule 68(i) and (ii). I understand
20 full well that you are limited by your resources and cannot do this. If
21 that is the case, file a new motion with a view to reconsidering the
22 decision that was taken in June, and Mr. Seselj will reply and say what he
23 thinks about it. I then will confirm what I have already said, and you
24 will ask the Appeals Chamber what needs to be done. But if we have a fair
25 trial, the accused must have the documents, all documents, and we have
1 these 207.000 pages. So either you're telling me that you did look at
2 these 207.000 pages and you have disclosed to Mr. Seselj, pursuant to the
3 decision we took in June, those pages that come under Rule 68(i) and then
4 there is no problem whatsoever, and in that case, you need to be honest
5 about it.
6 THE INTERPRETER: Interpreter's correction: The documents are
7 both inculpatory and exculpatory.
8 MS. DAHL: You have asked a question that cannot be answered
9 because of the passage of time. The receipt lists search terms and the
10 disclosure effort produces a set of documents in electronic form that are
11 responsive to the search terms. It is not a matter of reviewing documents
12 page by page as we do in our trial preparation, and when we find something
13 that comes under Rule 68(i) that we then disclose that to the accused with
14 the appropriate indication. It is not permissible under the rules to
15 simply unload a pile of documents without differentiation regarding the
16 relevance of the material and we are not seeking to do that.
17 JUDGE ANTONETTI: [Interpretation] Ms. Dahl, let's be clear. In
18 the past, I had the same job as you have today. I know what this entails.
19 What I would like to know is you have done the following: Based on the
20 software packages you had, which contained these 207.000 pages, have you
21 reviewed these 207.000 pages? Have they all been downloaded and have you
22 checked them all out to make sure that you knew which documents came under
23 Rule 68(i)? If that's been done for these 207.000 pages you just say so,
24 and in that case, the documents which you have disclosed to Mr. Seselj are
25 the outcome of this research work, and if that has not been done, you can
1 say that this has been partially done or we haven't done this at all.
2 MS. DAHL: Those tasks are not involved in creating an electronic
3 collection of material responsive to search terms. I have not had a staff
4 of individuals reviewing every single page and first of all this is also
5 three years ago as well. So I cannot stand here today and say that
6 someone has turned a physical page and looked at each piece. The
7 presumption is with electronic collections that the viewer knows what he's
8 looking for, can initiate a search request and page through the responsive
9 terms. These search terms came out of the Milosevic case. They relate to
10 what is considered "perpetrating organisations." They refer to documents
11 responsive to the search term "5th Military District", "9th Knin Corps",
12 "Captain Dragan", "Civil Defence Croatia", "Colonel-General Andrija
13 Raseta", "KOS", "Maritime Military District", "Martic's Police", "SAO
14 Krajina Police", including "National Security Service", "Serbian Volunteer
15 Guards", "VRS", and the "White Eagles."
16 I believe, if we were to run the search terms again, we would get
17 a more discrete set of documents and to review them for the sole purpose,
18 to review the CDs for the sole purpose of indicating under which prong of
19 the current rule they apply is inconsistent with the obligations under the
20 rules. They are an electronic collection, they are now outdated because
21 of improvements in technology. I think that it complies with the
22 disclosure obligations as defined by this Trial Chamber that we disclose
23 what is within our actual knowledge, in paper, in Serbian, that falls
24 within Rule 68(i). I don't think that it is incumbent upon us to go back
25 to electronic collections that were tendered to Mr. Seselj to
1 differentiate what prong under the rules they apply. I think it is a
2 better use of the resources of the Tribunal to carry those obligations
3 under the current ability to search information in electronic format and
4 to measure it against the current indictment.
5 JUDGE ANTONETTI: [Interpretation] I'm going to give you the floor
6 in a minute, Mr. Seselj. You are right, there are the Tribunal's
7 resources but there are also the rights of the accused. Let us imagine
8 that among the documents there are exculpatory documents. In such an
9 event somebody would be tried whilst there are documents likely to show
10 he's innocent and we would just say oh, no, we couldn't do the work. That
11 can't be done. You are telling me --
12 MS. DAHL: I --
13 JUDGE ANTONETTI: [Interpretation] -- that your people did this
14 work. I want to make sure of one thing, that the 207.000 documents have
15 been viewed. I suppose somebody is behind a screen or in front of a
16 screen, runs a software and starts looking at documents and then they say,
17 "Oh, this one is going to be disclosed." That's my concern. I want the
18 documents to have been checked by the Prosecutor, upstream, so that the
19 accused can at least be sure that the documents that might be beneficial
20 to him have been listed by the Prosecutor.
21 I am under the impression that you've started this work but it's
22 not quite completed. That's not good enough for me. I want to make sure
23 that all the documents under Rule 68(i) are in the possession of
24 Mr. Seselj. That's my only goal. And I'm not going to fall back on costs
25 or the number of staff working on it.
1 MS. DAHL: We are in complete agreement that Mr. Seselj should
2 have all of the documents that fall within Rule 68(i). There is no
3 disagreement about that. The process of investigating and assembling a
4 body of evidence with which to prosecute an accused charged in this
5 Tribunal includes systematic and thorough review of evidence in our
6 collection. We review it to determine whether it tends to support the
7 charges or exculpate the accused. When we find material that could be
8 considered Rule 68(i), we disclose it. That is a separate function from
9 creating a collection of evidence based on a Rule-based search used by a
10 search engine and placed on CD. The Appeals Chamber in many decisions has
11 said it is not proper to simply disclose a large volume of material
12 without differentiating the relevance on it. It's not reasonable to
13 expect a Defence team to look at that material one page at a time without
14 any idea of why it's being disclosed.
15 In this situation, there are collections that have been gathered
16 of rule-based computer searches that are put on CD based on our looking at
17 the theory of defence in Milosevic, Mr. Seselj's theory of defence here,
18 and as I described before, perhaps the perpetrating organisations that
19 might be relevant to preparation of the Defence. Unfortunately, the
20 receipts for these CDs don't indicate under what prong the material was
21 collected. But I want to draw an important distinction, when we find
22 things, when human beings see something and understand its relevance as an
23 exculpatory document, that gets disclosed. That is different than the
24 exercise of gathering and making available to the Defence rule-based
25 search results.
1 Frankly, rule-based search results are better than human beings
2 and sometimes they suffer from serious shortcomings because they are
3 over-inclusive. In our preparation of the case, we review documents and
4 make disclosure of what comes within our actual knowledge but I cannot say
5 on these large collections of rule-based search results that I have had a
6 staff member look at each single one. That is inconsistent with the use
7 of rule-based computer search generated subsets of an evidence collection.
8 JUDGE ANTONETTI: [Interpretation] Mr. Seselj?
9 THE ACCUSED: [Interpretation] Judge, first of all, I would like to
10 point out to you a basic contradiction in what the counsel for the
11 Prosecution said. She said just now, towards the end, that right now the
12 Prosecutor cannot say what the nature of the documents is from 2004, that
13 is, because at that time this Prosecutor was not involved in this case.
14 However, I would like to remind you that at the beginning of the debate
15 with regard to this issue, counsel for the Prosecution claimed that these
16 207.000 documents were delivered to me according to Rule 68(ii). I remind
17 you of that. You can see it in the transcript. When I intervened and
18 when I pointed out that there were two months in between, that is to say
19 from the point in time when Rule 68 was changed until these documents were
20 delivered, counsel for the Prosecution changed her position completely and
21 then started talking about her problems. And before that, she was
22 categorically prepared to assert that this was in accordance with 68(ii).
23 I would like to point out the substantive difference between the
24 disclosure of evidence and making available collections of relevant
25 material that are to be searched. A few moments ago, counsel for the
1 Prosecution mentioned certain categories of documents that are potentially
2 exculpatory for me. For me, all of them are potentially exculpatory. The
3 documents on the White Eagles for instance are very important because a
4 large number of Muslim witnesses in their ignorance speak of Seselj's
5 White Eagles whereas the basic premise of my Defence that I never ever had
6 anything to do with these White Eagles.
7 Then a large number of Prosecution witnesses ascribed to me
8 crimes of the Serb Guards of Vuk Draskovic. The basic premise of my
9 Defence is that where Vuk Draskovic's Serb Guards operated not a single
10 crime can be linked to me. When Bijeljina was within the indictment many
11 witnesses ascribed to me Arkan's and Mauzer's crimes. In Zvornik, what
12 they ascribed to me are the crimes of the Yellow Wasps. Therefore all the
13 material about the Serb Guards, the White Eagles, Arkan's men, the Yellow
14 Wasps are potentially exculpatory materials for me.
15 I'm not surprised in the least that there is 207.000 pages of
16 potentially exculpatory documents. That is what existed in all other
17 cases or a bit less or a bit more. However, now, the Prosecution is in
18 trouble and I understand their trouble because now they have to put all of
19 this on paper. The Prosecution is right. Before, the Trial Chambers
20 involved looked upon this kindly. That is to say, their behaviour
21 regarding documents. That made them complacent. They thought that this
22 was a fait accompli. Now it turned out that this is not a fait accompli
23 at all and that they actually have to disclose all of these potentially
24 exculpatory documents on paper. We are not talking about some documents
25 from among the 207.000 documents. All 207.000 documents of potentially
1 exculpatory documents are there. There is not a single document there
2 among these hundreds of thousands of pages that is not potentially
3 exculpatory for me. That is what I assert.
4 Whoever did this in the OTP did not disclose to me, as evidence,
5 something that simply could have made it possible for me to do my own
6 search. They made their own selection, according to their own criteria,
7 seeing whether something was potentially exculpatory or not. This
8 selection was carried out and the result of this selection that this
9 person made is 207.000 pages. Now, I seek to see these 207.000 pages.
10 That's the point of it. And if you allow me I'd like to say a few more
11 things about what we discussed just before the break so I deal with it
12 straight away. This is the first time I hear that on the 25th of June the
13 Prosecution submitted a request to amend the indictment. I have not
14 received that yet. I expect this to be translated into the Serbian
15 language. Perhaps I'm going to wait for about a month for that, as I've
16 been waiting for other documents too. I would like to remind you of the
17 following, Judge. Once I receive the Serb translation, I have the right
18 to respond to the request to amend the indictment. And then the Trial
19 Chamber rules on the potential amendment of the indictment and when the
20 Trial Chamber makes its decision, then the Prosecution submits to me
21 supporting material for this new amended indictment. And once they submit
22 that material to me, I have another month to object. And then, when I
23 object, and if this is refused, then I have the right to appeal, and what
24 am I going to appeal on? Challenging jurisdiction. The question is
25 whether the trial can start in that case, even in March next year. I
1 would like to draw your attention to this so that you bear this in mind
2 when you make your ultimate decision as to whether you will allow them to
3 amend the indictment or not.
4 Secondly, if an amendment indictment is approved, then in the
5 supporting material, I have to be given the entire Appeals judgement from
6 the Brdjanin case, because if I understand you correctly the backbone of
7 the amendments to the indictment is based on the treatment of joint
8 criminal enterprise in the appeal judgement in Brdjanin which I have never
9 seen. I have to see that before I submit my own motion regarding the
10 indictment. So this extends the deadline for starting the trial even
11 further. What is the objective? I don't know. I can only estimate what
12 the objective is. Perhaps somebody is hoping that the mandate of the
13 Tribunal will be extended and that my trial can go on until 2020, but I do
14 know that Mr. Churkin, the ambassador of Russia to the United Nations,
15 stated in the Security Council that there is no reason whatsoever to
16 extend the mandate and the work of the Tribunal and I believe that Russia
17 is going to adhere to that position.
18 And without the consent of Russia there can be no extension and do
19 not count on that, the fact that my trial has not been completed, the work
20 of the Tribunal is going to be extended. No way. My right to have a
21 trial within a reasonable time limit has been violated irreparably. There
22 is no way of remedying that. Now I would like to focus on ruling out the
23 possibility of violating my other procedural rights. I'll wait. I'll
24 wait until 2020 if my health is still good. I have the patience to do
1 JUDGE ANTONETTI: [Interpretation] Ms. Dahl, several things. One
2 minor point, one not so minor, but compared to the substantive issue, it
3 is secondary, albeit important. Mr. Seselj has just said that the amended
4 indictment had not been disclosed to him. I guess it's been sent to be
5 translated and he hasn't yet received it in his own language. This being
6 said, I hope he'll receive it shortly.
7 Secondly, the amended indictment is one of the by-products of the
8 Brdjanin appeal decision, so at the very least he should have in his own
9 language the translation of the relevant passages on JCE. That's the
10 least one can expect. That shouldn't pose a problem. However, I've been
11 listening to both of you, and I was struck by one thing. By what
12 Mr. Seselj said on the White Eagles, the Yellow Wasps, and the -- and
13 Arkan's men. He's just said this to us. He argues that he didn't know
14 these people, that they were not under his orders or authority, and in his
15 view, if there are any documents that are part of the 207.000 pages about
16 these people, he should have them because he said these are potentially
17 exculpatory documents. So this is what he claims. I don't know. But it
18 is for the Prosecution to check. I can understand, Ms. Dahl, you're not
19 responsible for that yourself, you followed colleagues who themselves
20 followed each other in this case and you arrived recently and you
21 discovered all this recently.
22 But as a rule, when the Prosecution goes to court, in order to
23 introduce evidence because the Prosecution has the onus of proof, the
24 Prosecution is supposed to know all the documents, and I, if I were you,
25 if I wanted to go to court, to go to trial, I would feel that I would have
1 to know myself the 207.000 pages, I do not want to run the risk of going
2 to court without first having seen the documents. So that's it. I know
3 that in our cases, there are thousands, if not millions, of pages involved
4 but as a rule, the Prosecution is supposed to know the documents, is
5 supposed, according to the rules, to sort out the documents, to select
6 them. So that's the reality. And equally, the Defence is supposed to be
7 aware of the Prosecution and Defence evidence, is supposed to know their
8 own Defence case. Of course, this issue is not going to be solved today
9 but I do draw your attention to the fact that the accused has just claimed
10 that there are documents in the 207.000 pages concerning groups or
11 individuals, could be exculpatory, if he were to be apprised of them, so
12 this is a substantive problem obviously in September when this chart was
13 disclosed as a CD, it must have been prepared prior to the 28th of January
14 2004, all these questions had not been totally understood and they crop up
16 You must think it over. I, for my part, will see what I can do at
17 my level, but I have just identified a problem, which could prevent us
18 from starting the trial. Yes, you have the floor.
19 MS. DAHL: I want to thank Mr. Seselj for indicating areas of this
20 case which he considers to be exculpatory. We will take that under
21 advisement and initiate commission searches to identify material that he
22 considers exculpatory and falling within our disclosure obligations. That
23 is helpful information so that we can discharge our disclosure
25 With regard to delays associated with accommodating Mr. Seselj's
1 right to represent himself, we do not consider that these delays render
2 the proceedings unfair. To the contrary, they represent the effort to
3 give meaning to his right to self-represent. With respect to citations to
4 the Brdjanin appeals judgement, we are preparing a book of authorities
5 that will include the excerpts that we consider relevant. We thought that
6 that would assist in the translation of relevant legal materials to
7 facilitate his preparation. When we cite material before the Appeals
8 Chamber that's outside our jurisprudence we regularly prepare a book of
9 authorities for Chambers and we thought it would be appropriate to assist
10 Mr. Seselj in getting his hands around the jurisprudence that we offer
11 that same preparation in this case.
12 JUDGE ANTONETTI: [Interpretation] Very well. Let me address very
13 briefly something else because I'm going to have another trial this
14 afternoon, and I do wish to address this problem now.
15 Mr. Seselj, the Prosecution filed a pre-trial brief. It is filed
16 as being confidential for the time being, and it is several pages long. I
17 am not going to speak to its contents. I only wanted to flag to you that
18 when there is a pre-trial brief, you are entitled to supply a response,
19 your own brief. You can decide to do so or not to do so but this
20 pre-trial brief is, as it were, a very developed indictment, in which all
21 the arguments, all the Prosecution's arguments are developed. I glanced
22 at it, and having done so, I believe that you have tools that make it
23 possible for you to respond to the allegations contained in the pre-trial
24 brief. But this is a major piece of work, if you intend to carry it out.
25 So far, it has never been done. I'll tell you the exact number of pages
1 of this pre-trial brief, 74 pages, and there are 599 footnotes. Of
2 course, this pre-trial brief will have to be translated in your own
3 language, and once you have read it, studied it, you will be free to
4 respond to it, which is actually your Defence case as set out, as you
5 would set out in your pre-trial brief. I do invite you to read this
6 pre-trial brief, to really look into it. Of course, subject to further
7 decisions on the indictment.
8 What I'm saying now is provided the indictment remains the same.
9 If the indictment were to be quashed or amended later on, that would be
10 another problem but we already have a document based on the current
11 indictment. You could usefully prepare your defence in writing a
12 pre-trial brief because you basically have the Prosecution case in their
13 pre-trial brief. See if you can supply your own pre-trial brief. I
14 suggest you do. If you fail to do so it's up to you. Yes, you have the
16 THE ACCUSED: [Interpretation] Judge, I will certainly respond to
17 the pre-trial brief using the same number of pages that the Prosecution
18 used. I think that is my right and I think that is what you will grant to
20 Secondly, you know the kind of problems I'm facing now. I am
21 waiting for the decision to arrive, perhaps it will arrive today, allowing
22 me to object to the modified reduced indictment. You informed me last
23 time that you made that decision. However, it hasn't been submitted to me
24 yet. I have the right within a month to object to that, and I will
25 certainly do that. Then, I have the pre-trial brief of the Prosecution,
1 which is based on that indictment. I'm going to respond to that as well
2 and I think that you gave me one month's deadline for that too. And I'm
3 going to respond to that as well.
4 Then, if you decide to admit the new amended indictment, then I am
5 going to respond to that and then the new pre-trial brief of the
6 Prosecution, then I have the right to respond to that new pre-trial brief
7 for the Prosecution, practically we are starting things all over again.
8 I'm not going to give up on any one of my procedural rights. But I would
9 just like to draw your attention to the fact that all my procedural rights
10 are renewed with this new indictment and that is going to require a great
11 deal of time, and a great deal of effort. I do not fear the effort. But
12 as for the time, you will have to think about that. So I am not shying
13 away from this new indictment. I'm not opposing it in advance before I
14 see what it's all about. First, I'm going to look at it, then I'm going
15 to object.
16 As for the current document that is being prepared in view of the
17 existing indictment, it's being prepared by my legal advisers, it is going
18 to be based on two things, challenging hate speech as a form of committing
19 a crime, and challenging the way in which parts of the indictment were
20 chosen for reduction, for elimination. I already told you that we are
21 going to insist that instead of Bijeljina, Samac, Western Slavonia, et
22 cetera, Vojvodina be eliminated because in that case, it is more than
23 obvious that this trial cannot have jurisdiction because there is no nexus
24 to the armed conflicts and there was no attack against the civilian
25 population. The members of my expert team have been charged with
1 preparing a special study about this and we are going to file that as
3 If you think that this is too much you can simply reject it but in
4 this additional study we will try to indicate to you all the evidence
5 supporting our position that the problems that may have occurred in
6 Vojvodina cannot be the subject of this indictment and this international
7 court cannot have jurisdiction over that, and there was no widespread or
8 systematic attack against the civilian population. There was no attack
9 against the civilian population. There were sporadic interethnic
10 incidents for various reasons but you're going to see all of that from
11 this paper that we will be submitting, so the basic thesis of my Defence
12 is that it is not appropriate as far as what the Trial Chamber insisted
13 upon is concerned, this reduction was not appropriate.
14 And the first point has to do with another point that I wanted to
15 object to, and that is hate speech that the Prosecution introduced as a
16 new form of committing a crime.
17 JUDGE ANTONETTI: [Interpretation] Just one point of clarification.
18 I will certainly read with a keen interest what you will say about
19 Vojvodina and I shall never reject any written submissions if they have to
20 do with the rights of the accused to a fair trial. If you go beyond the
21 word count or number of pages, you should do what your associates do: You
22 should in an introductory paragraph ask for a waiver because that is an
23 important question. But as far as I'm concerned I shall never dismiss a
24 document because it -- the number of pages is too great. Justice must
25 prevail and we need to be able to look at the documents coming from both
2 This is what I had to say about this particular matter. As this
3 is a Status Conference, I need to turn to you and ask you if healthwise,
4 everything is all right.
5 THE ACCUSED: [Interpretation] No problems.
6 JUDGE ANTONETTI: [Interpretation] As far as detention matters are
7 concerned, are your conditions of detention appropriate? You have no
8 complaints to lodge or you're not --
9 THE ACCUSED: [Interpretation] I have no objections to the
10 conditions of detention but I would like to advise you that for almost
11 five years, the Registry has been applying discriminatory measures towards
12 me. I am the only detainee who does not have the right to invite his
13 friends for a visit. I am able to receive visits only from my closest
14 family and two authorised representatives of the Serb Radical Party, and
15 my legal advisers and case manager. All the other detainees have the
16 right to also invite their friends to visit them and many have whole
17 processions of friends passing through the visiting room, but in my case,
18 Registry has always rejected any application from me, saying that-- and
19 giving as an excuse that these are all members of the Serb Radical Party
20 and that I have two official representatives of the Serb Radical Party
21 visiting me.
22 But all my friends are members of the Serb Radical Party. These
23 are the people I socialise with, the people I am friends with, and they
24 are now being disqualified from visiting me only because they are members
25 of the Serb Radical Party and this maltreatment has been going on for five
2 JUDGE ANTONETTI: [Interpretation] I knew nothing about this. The
3 fact that you're being prevented from seeing friends, who happen to be
4 members of your political party. Has a decision been taken on this
5 matter? Has a ruling been made?
6 THE ACCUSED: [Interpretation] Yes. In the case of my application
7 to have Igor Becic visit me. This was refused by the Registry saying that
8 he is a deputy of the Serb Radical Party. Then I appealed to the
9 President of the Tribunal who rejected my appeal. That's a specific
10 example. There have been several other examples too.
11 JUDGE ANTONETTI: [Interpretation] Listen, then file a motion and
12 send me a motion. File a motion which you submit to the Chamber and
13 explain why this person was prevented from seeing you, and what ties unite
14 you, and how the situation stands with the other accused. There is no
15 reason why you should be discriminated. This is something new to me.
16 It's not because you are a member of any political party that people are
17 being prevented from seeing you. So please file a motion and I shall
18 issue a decision.
19 Ms. Dahl, is there any other subject which you would like to
21 MS. DAHL: Yes, Your Honour, thank you.
22 JUDGE ANTONETTI: [Interpretation] We will have to adjourn soon.
23 MS. DAHL: I wanted to -- I had several questions that arose out
24 of the setting of a trial date. We need a firm trial date both for
25 logistical and security reasons, as I'm sure you have tremendous
1 experience with the challenges associated with bringing international
2 witnesses in and ensuring proper preparation for their testimony and
3 making the disclosures required to assist the Defence in its preparation.
4 So that is first, that a firm trial date obviously with all of the
5 information discussed today, it may be beyond our reach at this point.
6 Nevertheless, in preparing the order of witnesses and estimating time for
7 testimony, I would appreciate if the Court were able to quantify for me
8 the meaning of a three -- of sitting three days a week, and what I need to
9 know in planning purposes is the number of hours sitting three days a week
10 means so that I can realistically put together a schedule for the
11 witnesses, giving due consideration to the form of their testimony and
12 taking into consideration the relevance and grouping the evidence
13 according to the case.
14 JUDGE ANTONETTI: [Interpretation] I shall respond straight away.
15 This is precisely why I asked you to give me your schedule, and with your
16 estimated time, you estimate the time you need for each witness and then I
17 shall look at the schedule and compare it with the 65 ter list of
18 witnesses, and look into its relevance. And then I shall set a number of
19 hours, but in order to do so, I need to have your schedule. Are you going
20 to call 50 witnesses, 60 witnesses? I don't know. You are the only
21 person who knows this.
22 MS. DAHL: Well, Your Honour, I would refer the Court to our 65
23 ter list that does contain an estimated duration of testimony as well as a
24 form of testimony that is producing that estimation, that was filed on 29
1 JUDGE ANTONETTI: [Interpretation] Ms. Dahl, I've been working for
2 four years in this Tribunal and I must tell you that the 65 ter lists are
3 always quite optimistic because the Prosecution calls a -- provides a
4 number of names on these lists but does not always call all the witnesses.
5 I would like you to work honestly. I would like your schedule to
6 reflect the witnesses you really intend to call to testify, and we then
7 see where we stand because, as I told you last time, if we are talking
8 about a particular municipality, if initially you intended to call ten
9 witnesses, you could call two viva voce witnesses, two 92 ter witnesses
10 and then perhaps a few 92 bis witnesses to corroborate what the previous
11 ones have said but you have to make quite sure you know which viva voce
12 witnesses you wish to call to testify as well as the 92 ter witnesses. So
13 this preparatory work needs to be done and you may then tell me I need 200
14 hours or 300 hours; I honestly don't know. And from then on, the Defence
15 also says that 300 hours is enough or not enough, and then the Chamber can
16 rule on this.
17 MS. DAHL: The piece of information I'm needing to make this
18 schedule and this estimation is how many hours on a particular day one
19 would anticipate hearing evidence. That will allow me within a one week
20 period to try to group or a three-day -- three-day trial sitting that I
21 can group. If I know it's a four-hour day or six-hour day.
22 JUDGE ANTONETTI: [Interpretation] Normally speaking, we have
23 decided that we would sit on Tuesday, Wednesday and Thursday, each hearing
24 lasts four hours to four and a half hours, but this really amounts to four
25 hours, so that could be -- you would have 12 hours a week. But out of
1 these 12 hours, of course, half of this is accounted for by
2 cross-examination. So you would only all in all have six hours a week,
3 six hours for you and six hours for Mr. Seselj.
4 So per week, which means that would be six multiplied by four,
5 that would amount to 24 hours a month, and over a period of ten months,
6 you would have 240 hours but out of a period -- over a period of ten
7 months, that would be too long. Mr. Seselj would then have ten months and
8 this trial is due to last two years so this is not possible. So you would
9 have to rather go for 120 hours. I don't know what estimated figure was
10 given to you by the previous Trial Chamber but basically your examination
11 time should last or should take something between 120 and 150 hours. This
12 is a rough estimate.
13 In that case, Mr. Seselj would have the same time, i.e., something
14 ranging from 120 to 150 hours so in an ideal situation, the trial should
15 take place in 2008. This is why I said that November seemed an
16 appropriate time but Mr. Seselj has submitted a number of problems to us
17 today, and as far as he's concerned, he feels that March would be a more
18 appropriate time to commence this trial.
19 All of this needs to be reviewed. We have to understand what the
20 Prosecution is going to do, what is going to happen to the various
21 documents, but you can already -- already start working along these lines,
22 something between 120 hours and 150 hours. Mr. Seselj, you'd like to take
23 the floor?
24 THE ACCUSED: [Interpretation] I only wish to draw your attention
25 to the following: However irrelevant the Council of Europe may be with
1 respect to this Tribunal, the United Nations are relevant indeed, and by a
2 decision of the Security Council, the United Nations have decided that all
3 first instance trials have to be finished by the 31st of December 2008.
4 This decision is still in force. There has been no other decision. This
5 is almost equivalent to the statute of the Tribunal. So this should be
6 borne in mind and the Prosecution should bear this in mind when planning
7 their time and also take into account of the time that I will need. So
8 everything has to be done and the judgement handed down by the 31st of
9 December. That's how things stand legally. We cannot work under the
10 assumption that things will change. That would not be legal behaviour.
11 JUDGE ANTONETTI: [Interpretation] I think everybody would agree to
12 the fact that this trial should end by December 2008. Ms. Dahl?
13 MS. DAHL: You had mentioned last Status Conference that you were
14 intending to make a trip to the Detention Unit next week and I was
15 wondering if those provisions have been finalised because we would like to
17 JUDGE ANTONETTI: [Interpretation] Yes. I had prepared all this
18 and I had prepared a protocol also, but I think that the purpose of this
19 is to go and visit Mr. Seselj where he is working, which is the adjacent
20 cell to see whether he has everything he needs. The shelves and
21 everything else, as the documents -- no, as everything is still under way,
22 I don't think the visit would be --
23 THE INTERPRETER: Interpreter's correction: The documents haven't
24 all been sent yet so I don't think it's appropriate to go and visit
25 Mr. Seselj now.
1 JUDGE ANTONETTI: [Interpretation] I think it would be more
2 appropriate to go and visit him in August after the summer recess. So you
3 are just now providing a new piece of information, namely the Prosecution
4 would also like to come along, but this raises a problem because the
5 Prosecution may not look at the defence strategy of the accused, because
6 much may depend on which way the binders are organised in his room, for
7 instance. It's as if Mr. Seselj would file a motion to go and visit your
8 office. Mr. Seselj?
9 THE ACCUSED: [Interpretation] Judge, I'm not opposed to Madam Dahl
10 coming and visiting my working area. I will organise my files in such a
11 manner that she will be able to understand nothing so that would not be
12 any threat to me. But this is not yet finished. Holes have been drilled
13 in the walls. There are shelves there. The painting has started but
14 there is no indication as to when this will be finished. This was not my
15 initiative, it was yours, I'm very glad that you want to visit. If
16 Ms. Dahl also wants to visit I will not object and I will receive her with
17 pleasure and believe me, they will not be able to uncover any secret of
18 mine. I'm a seasoned conspirator from my anti-communist times.
19 JUDGE ANTONETTI: [Interpretation] So Ms. Dahl, Mr. Seselj has
20 nothing against you coming to visit him in the detention centre. What do
21 you have to say to this?
22 MS. DAHL: Thank you.
23 JUDGE ANTONETTI: [Interpretation] We shall meet again, as I have
24 said, on the 17th of August. As you have realised, I try to do everything
25 I can to settle a great number of issues. We haven't been able to settle
1 them all. I thank you for the spirit in which all of this has unfolded
2 today, and we shall meet again on the 17th of August. Thank you.
3 --- Whereupon the Status Conference adjourned at
4 12.47 p.m.