1 Monday, 20 August 2007
2 [Open session].
3 [Status Conference]
4 --- Upon commencing at 2.15 p.m.
5 [The accused entered court]
6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please call the
8 THE REGISTRAR: Thank you. Good afternoon, Your Honour. Case
9 number IT-03-67-PT, The Prosecutor versus Vojislav Seselj.
10 JUDGE ANTONETTI: [Interpretation] Today is the 20th of August,
11 2007. My greetings to all the people in the courtroom.
12 Ms. Dahl and your associates, my greetings to Mr. Seselj, and to
13 all the people in the courtroom.
14 As you know, this Status Conference is the follow-up of the
15 conference we finished at ten past 7.00 last Friday. We are continuing
16 with our work, and in order to do so I'm going to give the floor to
17 Mr. Seselj, because he couldn't quite finish what he had to say last time.
18 I had to interrupt him because it was getting late.
19 You have the floor, Mr. Seselj.
20 THE ACCUSED: [Interpretation] Judge, last Friday I started
21 speaking about the relevance of the material disclosed to me by the OTP.
22 The OTP so far has disclosed up to 1.000 documents out of a total of
23 4.000, and they have serving documents on me in other ways, documents like
24 requests to take note of some evidence. Many of them are not relevant at
25 all, and they are just an unnecessary burden that is making normal work
1 more difficult for me. And if they continue serving irrelevant documents
2 on me, the cell next door to mine will not be enough storage, I will have
3 will have to spread to the entire floor.
4 Let me illustrate this to you, judge. I brought three binders,
5 and if you would be so kind just to ask the usher to take them, and just
6 take a look for a second I will explain these three binders. They served
7 me complete photocopies of church books from Hrtkovci in Vojvodina, the
8 registries of births, deaths, marriages, baptisms from 1945 to 2000. It's
9 absolutely irrelevant, we have statistics on the population of Hrtkovci.
10 We know the present and the past population by name. It's a small village
11 of several thousand inhabits in the municipality of Ruma so that was
12 absolutely unnecessary. This is just an illustration of how they work.
13 You will also see a copy of the 1974 constitution of the SFRY which I have
14 in three copies. Then the book of Borislov Jovic, The Last Days of SFRY,
15 400 pages they served on me three times. They served on me three times,
16 once there 2006, and now in two copies.
17 Now what happened, in one package, in one box which fits four --
18 five binders, one binder contains the entire photo copy of the
19 Borislov Jovic's book, another binder is another copy of Borislav Jovic's
20 book. It was done by different people, and they just filled the box
21 randomly without mutual coordination and that's how they served it on me.
22 I know the OTP has gotten used to working that way in many other
23 cases. They are also used to most other Defence counsel not reading this,
24 not researching, but now they've run into someone who at least leafs
25 through and now they have a problem. Last time I said, if you remember,
1 that I would insist, in accordance with the Rules of Procedure and
2 Evidences, that the Office of the Prosecutor gives an explanation for each
3 document in particular, why that document is relevant, to provide the
4 grounds. They are obliged to do so under the rules. In many cases they
5 have not done so because the Defence did not require it. The lawyer would
6 just look, glance, say to himself it doesn't really concern his client and
7 he would let go.
8 Court evidence must contain exclusively relevant documents and
9 trials can only be based on relevant documents. Trials don't take place
10 here really in that way, although maybe be there is an exception I have
11 not run across, but this is just an illustration. The list would be very
12 long indeed if I gave you all the examples. There is the founding
13 document of Jovan Raskovic's party, and then the socialist party of Bosnia
14 and Herzegovina, photocopies of all kinds of legislation in multiple
15 copies, the same text in multiple copies. The same text. Textbooks of
16 the Military Academy, on the Command Staff Academy, and the so-called
17 General's School, the school of warfare. The Office of the Prosecutor
18 continues to serve me documents in English. I returned already two large
19 bundles of such documents, and in their latest letter they informed me
20 that they would serve me both in English and in B/C/S because there is
21 special indexation, special numbering in English, and I might need it. I
22 will never need anything in English. If documents in B/C/S do not have
23 certain numbers, then it is their problem. They will have to identify the
24 document for me in Serbian, because I'm not really interested in what's
25 written in English. But sometimes they give me a document solely in
1 English, because they probably don't expect me to look at it.
2 I received a couple of such documents in the past few days, and I
3 underlined those that were only in English. Sometimes there would be
4 complete binders about Islamic culture. Islamic monuments involving
5 Bosnia-Herzegovina, et cetera. They all -- they have to translate it all
6 for me into Serbian. Some of them are 1.000 pages long. They thought it
7 would just pass through among the multitude of other documents. I will
8 let nothing pass.
9 Further more, I've already said that the documents that are
10 potentially exculpatory, they failed to disclose at all for the most part.
11 I received sometimes something sporadically. It's a negligible number
12 compared to 2.700 pages that they have admitted exist, and they promised
13 to disclose them to me.
14 Then again I am facing the problem of the OTP's request to admit
15 into evidence certain documents accompanied by earlier statements and
16 testimony of witnesses who are dead. There are five such witnesses, who
17 are no longer alive in my case, out of which at least three testified in
18 earlier cases. Some continue to be protected although they are dead
19 because the OTP insists on it and that's why I'm not going to mention any
20 names. I'm not going to mention any names of either protected or
21 unprotected witnesses.
22 First of all I'm going to oppose any admission into evidence of
23 witness statements of those who are dead, especially the statement of
24 Milan Babic by virtue of his suicide during his testimony Martic case,
25 Babic denied everything that he has said, in a way that could not be more
1 eloquent. There is no surer way of proving that what all he said on the
2 orders of the Prosecution is a pure lie. (redacted)
4 (redacted). Another also committed suicide. He
5 continues to be protected here. He was convicted, he served his sentence,
6 he returned home, and committed suicide.
7 The Office of the Prosecutor did not give me at all the testimony
8 of the transcripts of Milan Babic in the Martic case in other cases.
9 Babic testified in Milosevic, and Krajisnik and partially in the Martic
10 case. The Prosecution informs me they had filed a request to admit those
11 transcripts into evidence. They gave me some of the documents that were
12 admitted into evidence through Babic, but there is no material of his
13 testimony. I found the plea bargain, the agreed facts to exist, but none
14 of those documents I received. So I cannot state my position, whether I
15 agreed to their admission or not, until I receive the complete
16 documentation. I informed you in one of my submissions that I will oppose
17 it, but on the other hand I cannot definitively say that I am going to
18 oppose it until I receive them. When will I receive them? It's high time
19 now. Are they intending to serve me with 200.000 documents five days
20 before the trial? Now is the time if the trial is going to begin in
21 November. I'm ready for a trial in November. Even if they let me have
22 everything a month before the trial, that's enough. That's enough notice.
23 Even if is 4.000.000 documents, I'll read them.
24 But I know what will happen here because that has happened in
25 other cases. They will disclose a part, but they won't disclose the
1 greatest part. They will disclose it successively and belatedly. What
2 about the material the Prosecution was aware of back in 2003 that is
3 exculpatory. What use will it be to me if it's served once the trial is
4 over? What purpose does it serve they then? It has to be disclosed
5 before the trial. I have to ask you, Judge, to make it incumbent upon the
6 OTP to disclose all the relevant documents under 66 and under 68 a month
7 before the trial at the latest. And to make it clear to them that after
8 the beginning of the trial, they are not allowed to serve on me any
9 document, not a single document they were aware of before the beginning of
10 the trial and failed to serve. I don't know rule out the possibility that
11 they may later get hold of another, of a new relevant document. That
12 happens in trials. Something new is learned, something new is found and
13 that can be disclosed to me during the trial. But they cannot disclose to
14 me during the trial things they are have in their possession and were
15 aware of before the trial. Then I will be a victim of that trial. How
16 am I supposed to defend myself?
17 I've already said that I am completely in agreement for the trial
18 to begin in November. I'm really looking forward to it and I am
19 impatient, but some things have to be made clear before that. The
20 Prosecution has many more protected witnesses than unprotected witnesses.
21 They have to disclose those names to me at least a month before the trial
22 begins, not before the witness appears to testify. Every decision that
23 has been made so far concerning protective measures contain the clause
24 stipulating that the name of the protected witness must be disclosed to me
25 a month before the trial. A month.
1 Last year they tried to begin the trial without this disclosure.
2 They disclosed five or six names to me 15 days before the beginning of the
3 trial but not the rest of the names and the Trial Chamber tolerated that.
4 I think that you, Judge, and your colleagues who will be dealing with this
5 case will not tolerate that, because otherwise I will have to resort to
6 other measures of non-institutional struggle. I insist on my rights, if
7 my rights are brutally violated, then I have to resort to fighting this in
8 other ways.
9 There was discussion last time on the way the Prosecution will
10 lead its evidence. The Prosecution itself admitted recently in one of its
11 documents that they would, in a large measure, introduce their evidence
12 through written statements. I oppose that. Witnesses have to testify
13 viva voce. Rules -- Rule 92 bis, ter, and quater derive from 89 (F),
14 apply only in exceptional cases. It says there in the text "in the
15 interest of justice," their interest of justice has to be proven first.
16 In every specific case, it has to be proven that it is indeed in the
17 interest of justice that the statement of a witness should be admitted
18 into evidence without direct examination, without actually doing it
19 lightly. It has been done before, but this is not a positive legal
20 practice that should be followed. It is a very grave deformation of the
21 legal process. I dealt with it in great detail. What if, for instance,
22 your Trial Chamber decides to admit this, and I am very close to thinking,
23 although I haven't decided yet, that in that case, it's maybe better for
24 me to give up on cross-examination. If there is no direct examination
25 then why would I cross-examine? Why would I cross-examine a zombie
1 witness. A witness who is not even capable of repeating what the
2 Prosecution has written in their stead.
3 In one of their documents the Prosecution says that some of the
4 witnesses had requested such procedure. Of course, those poor people
5 cannot even repeat all the things the Prosecution had written for them.
6 They might be able to if I remind them. But just off the top of their
7 heads to repeat 20 pages of false testimony, they can't do it. Those
8 people are not very smart, one must say. They simply are not up to the
9 task. Some cases -- in some cases some written statements may be indeed
10 admitted into evidence as long as it's not too much, but if this turns
11 into the prevailing practice here, then why would I examine such
12 witnesses? This is just a thought. I haven't decided finally.
13 Not long ago, the Prosecution first sent me their old pre-trial
14 brief with a new date from June this year. Like, they are disclosing to
15 me this pre-trial brief, it was disclosed to me a long time ago. Why?
16 And then it found its way to the Internet, and then some days ago I get
17 their new pre-trial brief and it's not complete. Why? Some footnotes
18 were crossed out in black. It's not the final version of their pre-trial
19 brief. The final version must be disclosed six weeks before the
20 pre-trial conference. If a single word is crossed out in black, it's not
21 the final version, and you will see at least three footnotes blacked out,
22 maybe more. Those references form an integral part of the text.
23 What kind of game is that? How am I supposed to respond to their
24 pre-trial brief which is not final? In that pre-trial brief, the
25 Prosecution again treats the crime base and other things in the same way
1 as in the previous pre-trial brief, the crime base in Bosanski Samac,
2 Brcko, Bijeljina. What does that mean? Is that a reversal to the old
3 indictment? If so, then let them say so in so many words. The pre-trial
4 brief may not deal with anything that is not contained in the indictment,
5 the current indictment. The Prosecution are at a loss what to do with
6 their own indictment. They recently filed a request to amend it. And
7 then comes another submission of the Prosecution in which they abandon the
8 idea of amending paragraph 5 of the indictment. What does that mean?? In
9 June they want to amend it, now they don't want to amend it. How long can
10 this go on? I just got used to the new version and now it's being changed
12 You know what happened. I had a very long confidential
13 conversation with my legal assistants. We discussed these changes to
14 paragraph 5 at length. We noted that the Prosecution made a grave
15 mistake. We even made fun of them on that account and that telephone
16 conversation which was not supposed to be wire-tapped was obviously
17 wire-tapped. Transcripts were made available to the Prosecution, and now
18 they are hastily giving up the idea of amending paragraph 5. That's my
19 only explanation. That's what must have happened although this was
20 supposed to be a secure communication, my legal assistants are recording
21 it. I can give you the recording so you can check what I'm saying. It's
22 the recording of my own telephone communications, and I have the right to
23 disclose it, to divulge it. It was on a secure telephone line from the
24 detention unit.
25 In one of the documents that was recently served on me, I read.
1 It's a report on disclosure by the OTP, submission 240, dated 25th July
2 2007, I got it on 31st of July. In paragraph 4 says: "The OTP is informed
3 that the printing of the following material is finalised and a selection
4 is now being made of the relevant parts of the material that is to be
5 submitted to the CLSS. The conference and language service section.
6 So they don't want to disclose all the material to me. They
7 intend to select what they believe is relevant and serve me only with
8 that. What is that supposed to mean? They can't choose what is relevant
9 in any document. They have to give me the entire document. I will choose
10 what is relevant to me or not, not they. Everything has to be translated.
11 That would be it. I hope I didn't speak at too great a length.
12 That would be it in the briefest possible terms. I have thus presented a
13 few of my own observations regarding the situation now that we are
14 preparing for trial.
15 Thank you for your patience.
16 JUDGE ANTONETTI: [Interpretation] [Previous translation continues]
17 ... Mr. Seselj.
18 Ms. Dahl, Mr. Seselj has tackled a host of issues. You now have
19 the floor to answer and of course I will take the floor after you have
20 done so.
21 You have the floor.
22 MS. DAHL: Thank you, Your Honour.
23 I have to confess I'm a little concerned about Mr. Seselj's
24 paranoia regarding his secure telephone conversations with privileged
25 persons. We have no such transcripts.
1 I'm also a little worried that that demonstrates forgetfulness on
2 his part. Our change regarding paragraph 5 of the indictment was
3 consequent upon his objection to the removal of that language from the
4 indictment. He correctly pointed out that the prior Trial Chamber had
5 requested the Prosecution to indicate the nature of its allegations
6 against Mr. Seselj. In my review of the indictment it appeared to me that
7 that language was legal argument that belonged properly in the pre-trial
8 brief. I didn't see any harm in taking it out. I don't see any harm in
9 leaving it in, and our response to his objection was to suggest that it
10 should remain in the second amended complaint against him. There's
11 utterly no basis for his allegation that we're listening in on his
12 conversations which are privileged.
13 If we could go into closed session for a moment, I will address
14 his confusion as to the filing procedures regarding the pre-trial brief.
15 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Seselj.
16 THE ACCUSED: [Interpretation] Judge, I strenuously oppose moving
17 into private session because the explanation is not appropriate. The
18 explanation is not in keeping with the Rules of Evidence and Procedure.
19 There is no reason to close this session. The session may be closed only
20 in order to mention the names of protected witness or confidential
22 The method of disclosure is no grounds for closing the session.
23 JUDGE ANTONETTI: [Interpretation] Ms. Dahl, if I understand
24 correctly, you would like to move to private session in order to deal with
25 names that were taken out of the pre-trial brief which had to do with the
1 protected witnesses. Is that the reason why you would like to move to
2 private session?
3 MS. DAHL: Yes, to discuss the confidential status of documents.
4 If the pre-trial judge does not require an explanation of the
5 changes that were made to the pre-trial briefs and the corrections then
6 there's -- I'll move on.
7 JUDGE ANTONETTI: [Interpretation] You would like only to deal with
8 the fact that you struck off some parts in the pre-trial brief which was a
9 public document; is that so?
10 MS. DAHL: Your Honour, I'm not willing to discuss confidential
11 filings in an open session. I don't think that's appropriate. And my
12 concern is that Mr. Seselj's confusion as to the procedure demonstrates
13 his inability to proceed in the absence of the assistance of legal
15 JUDGE ANTONETTI: [Interpretation] One moment. I have listened to
16 Mr. Seselj with great care, and I did not see any confusion. On the
17 contrary, I even concluded that as time goes by, the more he becomes an
18 expert in terms of proceedings before this Tribunal. Therefore, I fail to
19 see why or where there could be a confusion. There is no need for open
20 session unless you want to mention the name of a protected witness,
21 otherwise you have to answer him and answer the points that he raised. He
22 said himself that he was not mentioning any protected witness by name.
23 MS. DAHL: My concern arises out the confidential filings. Your
24 Honour, I will not discuss them in open session.
25 JUDGE ANTONETTI: [Interpretation] And these confidential filings,
1 from memory, they have to do with the submissions you made, applications
2 for protective measures for certain witnesses; Is that right? Am I
4 MS. DAHL: Presently we're discuss the pre-trial brief.
5 JUDGE ANTONETTI: [Interpretation] Yes, but the pre-trial brief
6 that I have in front of me has become a public document, since a public
7 version thereof has been filed. It was filed on 31st of July, 2007. I
8 have it in front of me.
9 MS. DAHL: That's correct, Your Honour. Mr. Seselj had --
10 JUDGE ANTONETTI: [Interpretation] And in this public document on
11 some very few pages, you can see and some footnotes that were removed. Is
12 that what you have in mind?
13 MS. DAHL: I'm not sure what documents Mr. Seselj is referring to
14 because we filed a public version of the pre-trial brief and then asked
15 for previously filed versions to be moved into confidential status. I
16 believe all of that has been accomplished.
17 JUDGE ANTONETTI: [Interpretation] Fine. Please proceed. There's
18 no reason to move into private session. We know that there is a pre-trial
19 brief in existence. We know that there is confidential version of that
20 brief, and there's also a public version of the same pre-trial brief. So
21 please present your submissions on the basis of the public version of the
22 pre-trial brief because we are still in public session, in open session.
23 MS. DAHL: Mr. Seselj received copies to show the differences
24 between the public and the confidential version. And if he requires
25 further information about the reasons we're sending him material, I would
1 request that he simply sends me a letter and I will be happen to
2 facilitate his understanding of the Prosecution's filings. He also made
3 mention of the Babic testimony which is the subject of a motion under
4 92 quater on all of the transcripts relating to Mr. Babic's testimony with
5 the registrar, and I believe it comes within their undertaking to have
6 such submissions translated.
7 With regard to our request for protective measures on Friday
8 the --
9 JUDGE ANTONETTI: [Interpretation] Wait a moment, please. Let me
10 immediately address what he said about Mr. Babic. I listened to what he
11 had to say with great interest. Why did I do so? Well it so happens by
12 pure chance that I was the judge who confirmed the indictment raised
13 against Mr. Babic, so needless to say that when I found out that Mr. Babic
14 committed suicide it was something that I found quite striking. Based on
15 what Mr. Seselj has said, Mr. Babic testified in a number of cases, and he
16 listed these cases. And based on what he is telling us, there are
17 documents in relation to these testimonies, and he would like to have
18 access to these documents. Why?
19 He told us earlier on that since the Prosecution filed a motion
20 for admission by the chamber of Babic's statements and testimonies in a
21 number of trials, he, Mr. Seselj, should have access to all the documents
22 related to the testimonies of Mr. Babic, and Mr. Seselj told us that he
23 does not have these documents at his disposal.
24 Have you yourself identified all the statements, all the
25 testimonies of Mr. Babic, and have these documents been disclosed to
1 Mr. Seselj? That's what matters here, because he is saying that he
2 doesn't have some of these documents.
3 Furthermore, he added something that's news to me. He said the
4 following, that I'm not aware of the heart of the matter. But he said
5 that Babic supposedly denied what he had said before. In other words, he
6 had recanted. He denied what he had stated before. This might raise a
7 problem if Mr. Seselj tell us that Mr. Babic recanted what he had said
8 before, then we would need to know what he said when he said, I would like
9 to go back on what I said earlier on, and then we would also need to know
10 what he said before.
11 MS. DAHL: Of course, Your Honour, it's quite correct if has
12 recanted, that would be something we would of course disclose. I have
13 never heard such a thing, however, and Mr. Seselj has made a number of
14 accusations regarding Mr. Babic which I have not seen support for, so --
15 JUDGE ANTONETTI: [Interpretation] Let me ask the question to
16 Mr. Seselj.
17 Mr. Seselj, you said earlier on that Mr. Babic denied some of the
18 statements he'd made. On what occasion was it when he testified in the
19 Martic case? What case are you talking about? Because apparently
20 Ms. Dahl is not aware of this and it's news to me.
21 THE ACCUSED: [Interpretation] Judge, perhaps there was a problem
22 with the interpretation. I was very clear and very accurate in the
23 Serbian language. I stated that by virtue of the fact that he committed
24 suicide during the course of his testimony in the Milan Martic case.
25 Milan Babic refuted all the evidence he gave before that. The act of
1 suicide is a way of denying it. He committed suicide while giving
2 testimony. That is how I interpret the act of his suicide. I was very
3 precise in the Serbian language. What it was interpreted like to you, I
4 really don't know.
5 In this other case when I did not mention the witness' name
6 because the witness is still protected, the witness had served his
7 sentence, returned home. On the surface it seemed that he lived
8 peacefully for a couple of weeks, and then he committed suicide when he
9 had no external reason for doing so. These are forms of refuting false
10 evidence. That is my interpretation.
11 JUDGE ANTONETTI: [Interpretation] In other words, you're telling
12 us that is your personal interpretation, you work on the basis that when
13 someone commits suicide, by this very act, they put in question what they
14 had said before committing suicide. But that's your own interpretation of
15 the death of Babic and of the other individual who served his sentence,
16 went home, back home, and committed suicide without any specific reason.
17 That's your own interpretation.
18 THE ACCUSED: [Interpretation] Yes, it's my interpretation.
19 However, supported with a series of arguments that I have given in order
20 to support it.
21 JUDGE ANTONETTI: [Interpretation] Well, please proceed Ms. Dahl.
22 Now we understand what it was all about with Mr. Babic, so please proceed.
23 MS. DAHL: I was turning to our request for protective measures.
24 In view of your instructions on Friday regarding the order of witnesses, I
25 would like to modify our request and adapt it to Friday's instructions.
1 We would like the disclosure of those witnesses for whom we have
2 sought delayed disclosure consequent upon the commencement of trial to be
3 modified so that disclosure is delayed until a reasonable period before
4 their appearance at trial. When we discussed that on Friday, Your Honour
5 had suggested that because the witnesses had waited this long before
6 testifying, it wouldn't matter if they had to wait a little bit longer to
7 come to give their evidence. The delay in there their presentation of
8 testimony is not the source of concern. It's the length of time that
9 their identity is closed that puts them at risk, and we'd like to make
10 sure that we have adequately addressed their security risks. And I would
11 like to follow the suggestions you had regarding the presentation of our
12 evidence and propose that delaying disclosure until --
13 JUDGE ANTONETTI: [Interpretation] Ms. Dahl, you indeed filed a
14 motion for protective measures in relation to a number of witnesses. I'm
15 not going to give their names or their reference numbers.
16 The Defence in the person of Mr. Seselj responded for each witness
17 to your submissions. I have spent a great deal of time working on this
18 particular matter, and the Chamber or myself -- well, I am to deliver a
19 decision on this matter in the near future, within two weeks, because most
20 of the work has already been carried out. We are therefore currently in
21 the process of finalising this decision.
22 You're just telling me that following the Status Conference of
23 Friday, the work plan then that I submitted to you, you had decided to
24 adopt it, to agree with it, and that witnesses who were mentioned in
25 paragraph (e) will now be heard at the end of the case.
1 THE INTERPRETER: Interpreter's correction, it's paragraph I.
2 JUDGE ANTONETTI: [Interpretation] Therefore we'll first have
3 witness related to the crimes committed in various municipalities. I take
4 note of this with great satisfaction, we are going the right way.
5 But you are telling us something else. You're telling us that
6 from your point of view, and of course that's not the position shared by
7 Mr. Seselj, you're saying that you would like some -- the identity of some
8 of the protected witnesses to be disclosed to Mr. Seselj only later, only
9 one month before these witnesses come to testify, and not as Mr. Seselj
10 would like it to be, and not one month before the beginning of the trial.
11 On Friday, I told you that I believe that the trial should begin
12 at the beginning of November. That would mean that the list of these
13 witnesses and their identity should be disclosed to Mr. Seselj at the
14 latest during the first week of October. But once -- when the trial
15 started in this case last year, the Trial Chamber, with Judge Orie as
16 Presiding Judge, took a decision in relation to protected witnesses. They
17 took a decision about the time when these witnesses were to testify. And
18 if I remember correctly, I might be mistaken of course - and if that's the
19 case, the Chamber's legal officer will correct me immediately - but from
20 memory, I believe that Trial Chamber I decided that the list of all these
21 witnesses should be disclosed to Mr. Seselj at the beginning of the trial
22 and not at the time when the witnesses come and testify.
23 On this particular issue, Ms. Dahl, can you please shed some light
24 for me?
25 MS. DAHL: My recollection of the prior rulings was there was no
1 such ruling to disclose all witnesses to Mr. Seselj at the commencement of
2 the trial. If that were the case, we would have no more requests for
3 delayed disclosure that are presently pending. I appreciate the amount
4 much work that the Chamber is putting into addressing the protective
5 measures requested in this case. I can give you a short list of the
6 affected witnesses. But what I propose rather than moving all of the
7 witnesses in category I to the back of the case is to, on an individual
8 basis, determine where they fit in with the remaining crime base
9 witnesses, if that's appropriate, to make sure that Mr. Seselj has a
10 reasonable amount of time to prepare for their examination.
11 The point is to balance the security risks with giving the accused
12 proper and fair disclosure of the identity of the witnesses against him.
13 We wanted to bring those witnesses for whom we had sought delayed
14 disclosure in first, because that way the security risks are minimised,
15 their evidence is put out as soon as possible, and we get past that hurdle
16 in the case. I want to avoid overloading the accused with a large amount
17 of new information and would propose, therefore, to time the delayed
18 disclosure with their appearance at trial rather than the commencement of
19 the case.
20 JUDGE ANTONETTI: [Interpretation] [No interpretation].
21 THE INTERPRETER: Microphone please.
22 THE ACCUSED: [Interpretation] Judge I'm really worried about this
23 paranoia displayed here by Ms. Dahl in relation to alleged security risks
24 for some witnesses. For most witnesses in fact, her lack of knowledge of
25 the case file to date shows that --
1 JUDGE ANTONETTI: [Interpretation] Let me interrupt you,
2 Mr. Seselj. We are going to move into a private session, and I'll tell
3 you why.
4 Mr. Registrar, private session, please.
5 THE REGISTRAR: We're now in private session, Your Honour
6 [Private session]
11 Pages 1426-1431 redacted. Private session
9 [Open session]
10 THE REGISTRAR: Your Honour, we're now in open session.
11 JUDGE ANTONETTI: [Interpretation] Yes, please, Ms. Dahl.
12 MS. DAHL: Let me just back up for just a second.
13 On the disclosure of witnesses, there was ordinary entered on
14 8 November 2006 that directed the Prosecution to disclose the identity of
15 all the witnesses relating to the Hrtkovci crime base, and that was done.
16 That was the first crime base that we were leading testimony on when
17 starting trial commenced last year, and of course it's the first that we
18 would proceed upon this year.
19 With regard to the exhibits we are doing our best to eliminate
20 duplicates, and when the items were reordered into chronological order,
21 taking them out of the logical relevance in which they had been ordered
22 previously, there is a certain amount of duplication. I understand,
23 Mr. Seselj's objections to relate primarily to relevance. Those are more
24 properly addressed during trial when we seek to admit material. If there
25 are duplicates that are unnecessary or not relevant in and of themselves,
1 they will not be tendered. But we're doing our very best to get the
2 material printed, properly labelled, and produced so that he has all of
3 the material that will be shown in Court.
4 JUDGE ANTONETTI: [Interpretation] Thank you, Ms. Dahl.
5 Mr. Seselj, earlier on you mentioned something. I'd like to
6 provide some information on this item.
7 You said that witnesses who were not educated or did not have any
8 knowledge had made statements, statements that were taken by the Office of
9 the Prosecutor, and then the witnesses had signed their statements in
10 English. And later on, according to you, those witnesses are going to
11 challenge the contents of such statements.
12 I'm going to be very precise in telling you how investigations are
13 carried out.
14 The Office of the Prosecutor meets with a witness, with a
15 potential witness, whatever their name. You have the investigators of the
16 OTP and a potential witness. So there are conversations between them,
17 conversations that sometimes take days. Sometimes they're lengthy
18 conversations over several hours, if not days. And following the
19 discussions that take place between investigators and -- investigators and
20 potential witnesses, there is a written statement by the witness. It is
21 then drafted, and you're quite right in saying that it is a statement that
22 is drafted by the OTP.
23 The OTP writes a statement that is supposed to be a perfect
24 match to what the witness said. The witness statement is then drafted in
25 English, when the investigators use English, sometimes there are
1 statements in French, but there are very few of them. Most of the time
2 they are in English. The witness will sign the statement in English. But
3 as a rule, the OTP will have the statement re-read, the English statement
4 to the witness. There is an interpreter working into B/C/S. That
5 interpreter will translate the contents of the English statement to the
6 witness. Therefore, the witness will be listening to the interpreter as
7 they interpret the statement as signed by the witness.
8 That's the way it works. This is the evidence that is produced
9 before this Tribunal.
10 When you have a viva voce witness, there is a written statement
11 that you have, that the OTP has, that the Trial Chamber has received the
12 information. But it's not adduced into evidence, at least when you have a
13 viva voce witness. The written statement, the prior statement, is not
14 adduced. What you have then is only the transcript, and the transcript
15 encompasses all the answers provided by the witness to answers put to him
16 or her by the Prosecution, but also answers to the Defence questions in
17 cross-examination. The witness statement is therefore not admitted into
19 However, should there be a 92 bis motion, and should the motion be
20 admitted, the written statement is then admitted into evidence.
21 Now, when it comes to the 92 ter proceedings, you have the
22 witness. They come to testify, they confirm the written statement in
23 answer to a question by the Prosecution that asks whether the witness,
24 were he to answer the same question as the ones put to them at the time of
25 the written statement, and whether their answers would be the same, and if
1 the answer by the witness in court is yes, then the written statement is
2 admitted into evidence.
3 Therefore, with regard to your rights as an accused, when you have
4 viva voce witnesses, the written statement is totally irrelevant because
5 what matters are the answers to questions in Court. If you have a 92 ter
6 proceeding, then you can challenge what the witness may say in relation to
7 their witness statement because you are free to ask them questions.
8 However, if you have a Rule 92 bis, notwithstanding the fact that you put
9 your comments in writing prior to the Trial Chamber's decision, once the
10 decision is taken, the written statement is admitted into evidence.
11 There's one thing have you to understand. In the investigation
12 stage, the witness meets with representatives of the OTP, and the written
13 statement, the prior statement that is the outcome of such meetings, is a
14 summary of all this time spent on meetings between the investigators,
15 members of the OTP, and witnesses.
16 So I have listened to you with great care, and I do understand
17 your concerns, your misgivings. It's true when a witness comes to
18 testify, it may that be he doesn't remember what he said 14, if not 15
19 years ago. He may say the opposite of what he said in this prior
20 statement. That can happen. But there are questions put in Court and
21 they make it possible to see what the witness has to say, either as a
22 result of the examination-in-chief or of cross-examination or as a result
23 of the Judge's questions.
24 So in this respect, I just wanted reassure you and to give you
25 these explanations. Admittedly, at times, witnesses in Court do not say
1 the same as what they may have said as when they were heard before. That
2 can happen because they have thought it over or because they've changed
3 their minds or because they've forgotten or they may also add on other
4 things. So that can happen.
5 However, the good thing about cross-examination is that you then
6 can really reconstruct what the witness really said within the overall
7 framework of their testimony.
8 I just wanted to say this to you.
9 Yes, Mr. Seselj.
10 THE ACCUSED: [Interpretation] Judge, perhaps it's a major problem
11 that I am so well versed in the methodology of work of the OTP. Basically
12 the Prosecution calls two types of witnesses, victims and eye witnesses,
13 and participants in events. Usually participants in events are told that
14 they are potential suspects. According to the internal rules of the OTP,
15 in that case the entire interview has to be video taped. Very often these
16 video tapes are not made. Questions put by the investigators are leading
17 questions very often and afterwards this statement is modified in
18 accordance with the interests of the Prosecution.
19 Now, what's the problem here? The Prosecution prepares each and
20 everyone of their witnesses, like the Defence does. The Defence sometimes
21 proof -- the Prosecution sometimes proof their witnesses for days. They
22 prepare questions for them. They prepare questions that will be put in
23 the examination-in-chief, the witness has an opportunity to learn the
24 content of his alleged statement very well. Yet they're still afraid to
25 brings witnesses like to that into the courtroom and to have them
1 cross-examined by the Defence. They are nervous about the witness not
2 learning all the answers that they're supposed to give. So then basically
3 want to have statements admitted into evidence. And then what I do, I do
4 through cross-examination questions in cross-examination, the interest of
5 justice has to be carried out. It is in the interest of justice that all
6 witnesses be heard viva voce and that they be examined by the Prosecutor
7 in the courtroom. Let them make an effort in this respect.
8 I'll give you a concrete example. VS-17 was a protected witness
9 envisaged last year as the main and first witness that would be heard in
10 my case. Just before the trial was supposed to begin, the Prosecution
11 asked to have his statement admitted into evidence according to Rule 92
12 ter. They considered him an insider, a key witness, of course I will have
13 ample opportunity to challenge this and to fully annul this statement,
14 this testimony, through good arguments. But why? They are aware of all
15 the problems that his testimony can have. They were his nature, his
16 social behavior, his habits. They themselves gave me documents showing
17 that he was a drinker and so on.
18 They are afraid to examine this witness directly here. They would
19 like to bring him in. They would like him to confirm that the statement
20 taken by the investigator is his own, and then they'll see how he will
21 fair during the cross-examination. They're counting on many other cases
22 until now, that what mattered was the 92 bis statement and the
23 cross-examination could be neglected. That is the way the OTP works, and
24 that is why Ms. Dahl comes here with a request to have statements by an
25 enormous number of witnesses admitted into evidence.
1 If it were four or five witnesses that could perhaps be
2 understandable and justified, but the tendency of the Prosecutor is to
3 treat most witnesses that way. That is impermissible. Then this trial
4 would turn into a farce before it even starts. Then one wonders what the
5 point is of my participation in the proceedings. Perhaps I had better
6 play a passive role, perhaps I just sit this thing out here. They'll
7 force me to do that if they continue insisting on such an enormous number
8 of witnesses that would be heard according to 92 bis, ter, and quater if
9 by sometimes the Trial Chamber grants their request. In the spirit of
10 rules and according to the Statute, witnesses should be heard viva voce.
11 The rule provides for exceptions too, but not the majority of witnesses
12 can be heard under exceptional circumstances 92 bis, ter, and quater are
13 just exceptions to the rules that can be seen from the entire rules. If
14 the entire trial is going to be based on rules that I envisaged for
15 exceptions, then this is certainly going to be a very exceptional trial,
16 but in a negative sense.
17 JUDGE ANTONETTI: [Interpretation] Regarding what you have just
18 said, let me give you some explanations in order to do away with any kind
19 of ambiguity.
20 You have a witness list, and you said it yourself, there are in
21 that list so-called insider witnesses; in other words, witnesses who are
22 going to speak to facts that are likely to put you as an accused in a
23 situation of liability. In all Courts, in criminal Courts, major
24 witnesses come to testify. There's no proceedings by written statement.
25 Witnesses do come to testify in Court. Therefore, major Prosecution
1 witnesses are going to be in Court.
2 What you fear is the 92 ter type of proceedings. Here, too, I'd
3 like to give you some explanations.
4 When the Prosecution plans the testimony of a witness under
5 Rule 92 ter, there is prior to this a motion that is filed with the Trial
6 Chamber, and Rule 92 ter makes it possible for the Defence, therefore for
7 you, to cross-examine the witness.
8 Therefore, you were mentioning Witness VS-17, if the Prosecution
9 were planning to have him as a 92 ter, you would be free to cross-examine
10 him. You could then, in putting questions to him, challenge what he may
11 have said, and your rights would be fully protected.
12 Regarding Rule 92 bis, you know that is the Trial Chamber that
13 takes rulings on 92 bis witnesses, and normally I should be one of the
14 Judges on the merits, practice in this Tribunal as such that when there is
15 a Prosecution motion under Rule 92 bis, and if the 92 bis provisions are
16 complied with, a written statement may be admitted. But very often, and I
17 would say nearly all the time, when an accused states that he wants to
18 cross-examine a Rule 92 bis witness, the Trial Chamber then decides that
19 the witness whose prior statement was to be admitted under Rule 92 bis
20 should come to court for cross-examination.
21 So this is not something that happens automatically. There is no
22 written proceedings that would run against your own interests. You have
23 an absolute right to cross-examine 92 ter witnesses and to move for
24 cross-examination of 92 bis witnesses. The only exception to all this is
25 the case of a witness who is deceased, who therefore inevitably cannot be
1 cross-examined. In such a case, the Prosecution will file a motion for
2 their testimony to be admitted into evidence.
3 So this is the way things work.
4 Mr. Seselj, you were telling us that if all this is admitted,
5 you're not going to cross-examine. No. If there is a motion filed by the
6 Prosecution for a 92 ter proceeding, the Prosecution's starting point is
7 that there is a written statement. It is confirmed by the witness in
8 court together with some documents. But thereafter you are free to
9 cross-examine the witness, just as if it had been a viva voce witness
10 altogether. There is no difference.
11 You mentioned the interests of justice. You're quite right in
12 doing so. There were cases in this Tribunal in which, in the interest of
13 justice, written statements were admitted with no cross-examination.
14 As far as I can remember, there was even a case - I couldn't give
15 you the exact name - but there was a case, it was a trial here before this
16 Tribunal, and a witness was heard; although, the accused and his counsel
17 were not in Court. That was in the interest of justice. And you're also
18 right in saying that the interest of justice principle must be justified
19 and reasoned. There may be exceptional circumstances in which the
20 interest of justice is higher than the interest of an individual or a
21 party or a specific interest.
22 Moreover, as I know that you read each and every word, you must
23 have seen that the Plenary meetings of the Judges amended Rule 75 lately.
24 And that has to do with protective measures for witnesses. Because of the
25 interest of justice, it is now possible not to ask for the consent of a
1 witness for protective measures to be lifted, protective measures that had
2 been granted to that witness so that's already enshrined in the Rules.
3 But as far as you are concerned, in our case, the case that we will have
4 to deal with, I can't see which are the written statements the Prosecution
5 would seek to admit without you knowing about it, without you being able
6 to cross-examine the witness, without you being able to convey your point
7 of view to the Trial Chamber. I don't think that is possible.
8 Admittedly, and Ms. Dahl said that repeatedly, there will be
9 motions for admission of written statements or testimony in prior trials,
10 be it only yours, let's start with that. When you testified in the
11 Milosevic case, also motions regarding Mr. Babic who is now deceased, of
12 course you cannot cross-examine him, there will be a number of such
13 mentions, but you have a right and that right will remain and will not be
14 violated. Because even in Mr. Babic's case, you, through your
15 submissions, you can change what he said. All this will be reviewed by
16 the Trial Chamber who will assess all of the evidence.
17 So this is what I wanted to tell you. In order to dispel any
18 possible fears, fears that you may have and that you show sometimes.
19 THE ACCUSED: [Interpretation] Judge, the point of my opposition is
20 the following, and I will be as simple as possible in stating my thoughts
22 The point of my opposition is the following. Out of a total of
23 102 Prosecution witnesses, how many witnesses can be heard according to
24 92 bis/ter? The tendency displayed by the OTP is to have most witnesses
25 heard according to 92 bis, ter, and quater. Is that acceptable or not? In
1 my opinion that is quite unacceptable. Witnesses that are heard according
2 to 92 bis, quater, and ter can only be exceptions. There can only be a
3 few exceptions in relation to the total of 102 witnesses. That is the
4 essence of my opposition to this. If most witnesses here will be 92 bis
5 ter, and quater witnesses, then there will be no trial. Then it is going
6 to be a trial in absentia. Then it is going to be a Kafkaesque trial in
7 the true sense of the word. An enormous majority of witnesses have to be
8 heard viva voce. Only exception can be heard 92 bis, ter, and quater. If
9 it is the other way around, then it would be inadmissable from the point
10 of view in the interest of justice. That is my view.
11 Of course I know that some witnesses will have to be 92 bis, ter,
12 or quater witnesses but not most of the witnesses. And you see how they
13 have prepared this, that most witnesses should be heard in that way.
14 JUDGE ANTONETTI: [Interpretation] Fine. I will respond to this
15 and Ms. Dahl will probably do so as well. We need to have a break now,
16 but after the break, I'll deal with the matter of the length of the
17 Prosecution case and Defence case, and all the things that have been said
18 up until now will then be taken into account.
19 We will have a 20-minute break now.
20 --- Recess taken at 3.47 p.m.
21 --- On resuming at 4.08 p.m.
22 JUDGE ANTONETTI: [Interpretation] Fine. The hearing is resumed,
23 and I'm now going to deal with a matter that is in direct line with the
24 submissions made by both parties so far.
25 Mr. Seselj stated that the Prosecution intends to call 102 --
1 between 102 and 105 witnesses, and he stated that he wants to
2 cross-examine all of these witnesses. This matter will only be resolved
3 once the Trial Chamber has set the time allocated to the Prosecution to
4 present their case.
5 You know, of course, that it is during the pre-trial conference
6 that will take place right before the beginning of the trial, that's when
7 the Trial Chamber makes that particular decision.
8 As far as I'm concerned personally, I'm not in a position to rule
9 on the matter and to state that the Prosecution will be granted so many
10 hours to put their case. But it's true, I don't have that power, but I'm
11 still free to express my feelings about this, and my feeling in that
12 respect is as follows.
13 If we look at the list of the Prosecution witnesses, we see that
14 we have about 100 witnesses listed by the Prosecution so far. The
15 Prosecution has not made a distinction between viva voce witnesses,
16 92 ter, 92 quater, or 92 bis witnesses. Once the Prosecution has
17 completed that exercise, inevitably they won't have as many viva voce or
18 92 ter witnesses. The number will be much smaller.
19 How could the Prosecution go about this, go about preparing the
20 witness list? There are two parameters the Prosecution needs to take into
21 account. The first factor, the first parameter, is the fact that 81 hours
22 had been granted to the Prosecution to put its case by the Trial Chamber
23 presided by Judge Orie. That's the lower option.
24 If we look at the higher one, we are looking at a calculation I
25 made with my assistants by adding up all the time stated in the 65 ter
1 list for the 102 to 105 witnesses, and by adding all this time up, we came
2 up with a total of 269 hours. Admittedly, everybody agrees that we won't
3 have 100 witnesses who will come and testify. Therefore, the Trial
4 Chamber will have to set a time which will be between 81 and 269 hours.
5 In my opinion, and that's the position I will defend before my
6 colleagues, in my opinion, 100 hours should be granted to the Prosecution,
7 and that would be plenty, in my opinion.
8 Why 100 hours? Well, for the following reason. We will be
9 sitting three days a week. Being the Presiding Judge and sitting -- and
10 since I would be sitting in another trial, I would not be in a position to
11 sits in this case for three days a week. And further more that's what has
12 been requested by Mr. Seselj himself to put his case properly.
13 We work on the basis that we'll be sitting on Tuesday, Wednesday,
14 and Thursday of each week. Therefore, we'll have, in total, ten hours of
15 hearing per week, ten hours of actual hearing time. If you multiply this
16 by four weeks, you come up with a total of 40 hours each month. If we
17 grant 100 hours to the Prosecution to put their case, Mr. Seselj will
18 automatically be granted 100 hours for cross-examination purposes. As a
19 result, during the Prosecution case, we should work on the basis of 200
20 hours. In other words, five months of hearing. Five months, because that
21 will be 40 hours a month -- a week, and in total 200 hours in five months.
22 When we begin with the Defence case, if Mr. Seselj has the same
23 number of witnesses, and if he also needs 100 hours to hear his witnesses,
24 the Prosecution will be granted 100 hours as well, and will need an
25 additional five months, five months in total for the Defence case. As a
1 result, if we are not faced with any major problems, we should be able to
2 complete this case within one year. But in order to achieve this, we need
3 to resolve all procedural matters that are bound to slow down any trial.
4 As far as I'm concerned personally, I'd rather dedicate my time to
5 reviewing witness statements and exhibits rather than wasting time on
6 matters of procedure that, in any case, will not come to bear on the
7 decision of whether to acquit or to convict the accused. But for this, we
8 need to prepare the trial properly, and that's why I've been trying over
9 the past few months to deal with all the problems as soon as they come up.
10 I realise that I'm gradually getting there, because on Friday I
11 was in a position to tell the Prosecution that all witnesses listed under
12 I were to be moved at the end of their case and the Prosecution this
13 morning told me that they were amenable to this. In other words, we are
14 moving ahead. We are moving forward and in a positive manner.
15 To conclude on this time issue, Ms. Dahl, you should immediately
16 start to take the following into account. You should think out of these
17 100 hours, how many hours you want to dedicate to fact witnesses, how many
18 hours you want to use with expert witnesses, how many hours you want to
19 dedicate to what we call insider witnesses, and to also to the main
20 witnesses. You have to take into account that some witnesses may be heard
21 under 92 bis. If they corroborate or confirm what other witnesses have
22 said, but it will be up to the Trial Chamber to rule on this. Of course
23 you have to keep -- bear in mind that Mr. Seselj may ask for some of these
24 92 bis witnesses to come here for him to cross-examine them.
25 As a consequence, Ms. Dahl, I would like to invite you to work on
1 the basis of 100 hours that. That -- and at that time may be shorter or
2 longer depending on what my fellow Judges decide, because I will not be
3 alone in making that decision. The two other or the other Judges sitting
4 on the Trial Chamber will also have their say when we rule on this matter.
5 But I believe that a total of 100 hours would appropriate. We would be
6 able then to sit three days a week, and we would be working on the basis
7 of Prosecution case that would last five months.
8 These are the comments I wanted to make at this stage of the
9 proceedings with respect of time. This is of course a matter relevant to
10 the Prosecution in the first instances. Therefore, Ms. Dahl, do you want
11 to say asking about this.
12 MS. DAHL: Yes, Your Honour. Thank you, Your Honour. It seems
13 like a very sensible way to proceed, and I wanted just to clarify that our
14 accession to reordering the presentation of witness within category I is
15 conditional on modification of our motion for protective measures. I have
16 a short list of the effective witnesses that I will supply after today's
17 proceedings. We will see whether those witnesses are more properly
18 brought at the end of the case or if their relevance makes it appropriate
19 to bring them within the different crime bases.
20 JUDGE ANTONETTI: [Interpretation] Fine.
21 Mr. Seselj, we are talking about 100 hours for the Prosecution.
22 That would mean 100 hours for you to cross-examine the Prosecution
23 witnesses, of course.
24 THE INTERPRETER: Microphone please.
25 THE ACCUSED: [Interpretation] Judge, I believe this is a very
1 reasonable evaluation, 100 hours for the Prosecution and 100 for me for
2 cross-examination. One should take into account that I will insist on the
3 same time for experts and Defence witnesses. Of course, including my own
4 testimony, which would last ten, 15, maybe even 20 days because I referred
5 to the experience of Krajisnik. Mr. Krajisnik testified for 40 days, 23
6 days in chief, 12 days for cross and some days for redirect.
7 I will give a great deal of attention to that in the process of
8 preparing my Defence.
9 However, there is another problem. I believe it's quite
10 unrealistic for the Prosecution to lead 100 or 102 witnesses in 100 hours.
11 For the past three Status Conferences I insist on getting an answer to the
12 question why the list of witnesses includes witnesses for crime base on
13 Western Slavonia, Samac, Brcko, and Bijeljina and why the crime base in
14 those areas is dealt with in the pre-trial brief if those locations have
15 been deleted from the indictment? There might be a possibility here for
16 saving time and --
17 JUDGE ANTONETTI: [Interpretation] [Previous translation continues]
18 ... You're absolutely right. You mentioned the fact on Friday, and I'm
19 glad you raise it again today.
20 Ms. Dahl, has already mentioned this point. He saw that in the
21 new indictment some locations have been deleted. However, we still have
22 witnesses on the list who normally should not come and testify, because
23 the locations they would be testifying about have been deleted from the
24 indictment. How do you explain this?
25 MS. DAHL: I would refer Mr. Seselj to the decision of 8 November
1 2006 that allowed the Prosecution the discretion to call witnesses
2 relating to those municipalities under limited circumstances. I will
3 consider carefully the Pre-Trial Judge's observations regarding how much
4 time to dedicate to the various kinds of witnesses, who are the main ones,
5 who are the insiders, who are the experts, and who are the particular fact
6 witnesses. And it may be that the need to present pattern evidence will
7 recede when we are confronted with 100 trial hours. But that is really
8 within our discretion to figure out what is the appropriate weight of the
10 I appreciate Mr. Seselj's observation about how we should prove
11 our case but that is for us to decide.
12 JUDGE ANTONETTI: [Interpretation] Fine. But please take this
13 matter into account. First of all, with regard to the decision taken on
14 the 8th of November, 2006, it's a decision that was taken by the previous
15 Trial Chamber. I'm not in a position to tell you whether the following
16 Trial Chamber will follow the same logic. As far as I'm concerned, and
17 it's my personal opinion, if -- the way I see it, if municipality have
18 been deleted from the indictment, it's not necessarily relevant to have
19 the witnesses come and testify about these municipalities.
20 Mr. Seselj.
21 THE ACCUSED: [Interpretation] I fully agree. One should bear in
22 mind that you have before you the motion to accept the second amended
23 indictment. I believe that's the official name. Possible admission,
24 confirmation of that second amended indictment makes the decision of the
25 previous Trial Chamber from November of last year irrelevant, because it
1 applied to the modified amended indictment. The crime base has been
2 deleted from it, but it was said that Prosecution may lead evidence on
3 that pattern of conduct. I believe that was the formation.
4 However, since this is no longer mentioned in the indictment at
5 all, the question arises why some other places could not be included, a
6 whole number of other places, 30, 40, 50 other locations. But the
7 possibility to lead evidence on patterns of conduct does not mean that
8 they can lead evidence on crime base, so the behaviour of the Prosecution
9 is not consistent here.
10 In any case, I believe the Prosecutor has to work on a new
11 pre-trial brief. That pre-trial brief must be disclosed and it must not
12 contain material on any municipality that is not mentioned in the
14 JUDGE ANTONETTI: [Interpretation] You are giving the opportunity
15 to deal with a matter I wanted to address and that is the matter of the
16 pre-trial brief.
17 This is a very important point for you, Mr. Seselj. Please listen
18 carefully. I know that you're always listening, but please pay particular
19 attention what I'm going to say now about the pre-trial brief.
20 In July, the Prosecution established or drew up its amended
21 pre-trial brief, different from the one dated -- from June. Therefore,
22 the consolidated pre-trial brief is dated from the month of July. I have
23 read through this brief with great interest. It's a document that is very
24 important for you, Mr. Seselj. What is a pre-trial brief?
25 The pre-trial brief is an indictment but an indictment that has
1 been detailed, analysed, and it's a document where all the arguments of
2 the Prosecution are being developed, just as I have done, I'm quite sure
3 you've reviewed this pre-trial brief, and you haven't failed to notice
4 that in this brief we find first an introduction, and then various
5 chapters. We have a chapter dedicated to your participation of the joint
6 criminal enterprise in three respects. First of all as a promoter of
7 greater Serbia; then, as a recruit and coordinator of the SRS volunteers;
8 and thirdly, as a participant in the joint criminal enterprise.
9 Then we find the implementation of the JCE in Bosnia-Herzegovina
10 and Serbia. In chapter 4 we have a chapter dedicated to the SRS
11 structure, its structure, its organisation, and then in the following
12 chapter we have the alleged crime in Croatia, in Bosnia, in Serbia, and in
13 the following chapter of the pre-trial brief we find legal review under
14 Article 7(1), as well as under Articles 3 and 5 of the same statute.
15 In this pre-trial brief, you find all the arguments raised by the
16 Prosecution with footnotes telling you which witnesses will confirm what
17 is written in this pre-trial brief.
18 What will happen next? When the Prosecution put their case, they
19 will first start on the first day by giving a summary of the pre-trial
20 brief. Then the Prosecution will call their witnesses in the order we
21 mentioned on Friday. But this order will follow the order adopted in the
22 drafting of the pre-trial brief. Therefore, this is a document of utmost
23 importance for you, Mr. Seselj.
24 Why is it so? It is so because once the Judges have to rule on
25 your liability, on your responsibility, once they have to pass judgements
1 on the crimes that were committed, they will have to rule on the basis of
2 all the evidence adduced at trial. In the judgment and you know that as
3 well as I do, in the judgement, as in all other judgements, in the trial
4 judgement, Judges always refer to the pre-trial brief as well as to the
5 brief produced by the accused in response to the Prosecution pre-trial
7 Rule 65 ter (F) states the following. Let me read it out to you
8 very slowly. I quote: "After the submission by the Prosecutor of the
9 items mentioned in paragraph (E)," in other words, and must read the
10 pre-trial brief, "the Pre-Trial Judge shall order the Defence," in other
11 words you, Mr. Seselj, "within a time-limit I will set, and not later than
12 three weeks before the pre-trial conference to file pre-trial brief
13 addressing the factual and legal issues and including a written statement
14 setting out in general terms the nature of the accused's Defence, the
15 matters with which the accused takes issue in the Prosecutor's pre-trial
16 brief, and in the case of each such matter, the reason why the accused
17 takes issue with it."
18 In other words, you and your associates have to do that work, and
19 you have to produce your own pre-trial brief for the Trial Chamber in
20 response to the Prosecution's pre-trial brief, in which you will
21 challenge, because you've pleaded not guilty, in which you will change the
22 case put forward or put forth by the Prosecution. You may do so, but you
23 may choose not to do so.
24 But I'm telling you one thing, Mr. Seselj. If you decide not to
25 carry out that exercise, this could prove to be a handicap for you,
1 because we are working here according to a procedure that is very
2 different than what you're familiar with in your own country. In your
3 country - and I know that - unfortunately for you, you have been
4 convicted, you were convicted in the past, and you know that in
5 continental rights system, law system, once the witnesses have testified
6 at trial, the Prosecution make their final submissions, and the Defence
7 make their final statement to refute what has been said by the
8 Prosecution, sometimes also with briefs being produced. But here it's
9 different. We have a pre-trial brief, we have witnesses who come and
10 testify, then we have the Defence who have to -- to produce a document
11 where they challenge the Prosecution's pre-trial brief.
12 You -- it is not compulsory for you to prepare a pre-trial brief,
13 but if you decide not to do so, once the Judges assess all the evidence
14 produced at trial, they will only have at their disposal the Prosecution's
15 pre-trial brief, the transcript of the witnesses's testimonies, and the
17 I believe that a pre-trial brief that would you produce in
18 response to the Prosecution's brief could prove to be extremely valuable.
19 I have listened-- or have read rather with great interest, all the
20 submissions you and your associates have produced in response to the
21 various expert reports. What you have done with respect to the expert
22 witnesses, you could do it again, in my opinion, to respond to the
23 Prosecution's pre-trial brief. But we are starting to run out of time
24 here because taking into account the three-week time limit before the
25 beginning of the trial, this particular document should be completed by
1 the 10th of October. Today is the 20th of October [as interpreted], we
2 will still have the month of September and the month of October. You have
3 two months to complete that work. I don't know what you intend to do, Mr.
4 Seselj. Are you going to prepare a brief or not? I would like to know
5 what is your position about this.
6 THE ACCUSED: [Interpretation] Judge, I have decided to file a
7 Defence pre-trial brief in any case, and I'm already working on it in
8 order to respond to the Prosecution's pre-trial brief.
9 However, the Prosecution has still not given me the final version
10 of their pre-trial brief, which they are required to do under Rule 65 ter
11 (E) line 1. The final version of the pre-trial brief cannot be a version
12 in which something is blacked out, even the minimal.
13 The final version of the pre-trial brief has to be an integral
14 one. Somebody mentioned a moment ago that there is a confidential and a
15 public version of the pre-trial brief. I received only the public one. I
16 don't have the confidential version. It hasn't been served on me, since
17 it has not, then I don't have the final version of the pre-trial brief.
18 Maybe the Prosecution will give it to me tomorrow, but you have obviously
19 to instruct them to do so because they will not do so otherwise.
20 I will look at the deadlines envisaged by the rules, and I will
21 file my own pre-trial brief a little earlier perhaps.
22 JUDGE ANTONETTI: [Interpretation] In this respect, in the issue of
23 the confidential pre-trial brief versus the public version, what do you
24 have to say to Mr. Seselj? Because he needs the final version of the
25 pre-trial brief, that's obvious, for him to be able to answer, of course.
1 MS. DAHL: Of course he does Your Honour. We're in complete
2 agreement. As far as I know there is no reason why he should not have
3 both copies. I submitted them both to be served on him and as far as I
4 know the registrar submitted the full version to the conference and
5 language services. I provided as much information in electronic form to
6 the interpreters to facilitate the translation. So I will look into it
7 and make sure that it's been served on him.
8 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Seselj, Ms. Dahl is in
9 full agreement with you. You should have the document as translated in
10 your own language.
11 Yes, Mr. Seselj.
12 THE ACCUSED: [Interpretation] So much the better, Judge, if
13 Ms. Dahl agrees. But it is inconceivable to me that I have to wait so
14 long. If only small passages are blacked out. It's not a big problem for
15 the CLSS. It can be done in minutes. It's not about descriptions. It's
16 some information that may not even be necessary in translation. I think
17 it's an excuse that the CLSS is the problem.
18 JUDGE ANTONETTI: [Interpretation] Indeed. There is a pre-trial
19 brief, in which some parts were blacked out. It's enough to format the
20 document so that all the parts in black be removed and that's it. All the
21 problems are solved.
22 If you have the pre-trial brief before you, look at page 29, for
23 instance. There is a footnote there, a statement of and then something is
24 blacked out, and then the text continues. Maybe you have to adjust some
25 things but that can be done easily very quickly.
1 MS. DAHL: May I ask Your Honour to tell me what is the document
2 identification number in the upper right-hand corner, because I'm puzzled
3 we didn't file the pre-trial brief of June with any redactions.
4 JUDGE ANTONETTI: [Interpretation] 21968, page 29, upper right
5 corner, 21968.
6 MS. DAHL: If I may suggest, Your Honour, that we proceed with
7 what may remain on today's agenda. I will make sure that the proper
8 documents are served on Mr. Seselj.
9 JUDGE ANTONETTI: [Interpretation] Very well.
10 Yes, let me deal with a very important issue, a question which is
11 bound to arise at trial. We have mentioned this briefly before, but
12 without going into detail, into technical details.
13 I have in mind the issue of proofing in English, recollement in
14 French. What happens in this respect?
15 Mr. Seselj, let us imagine that there is a witness who is due to
16 testify on Tuesday, because that's the first day, that will be our first
17 day of hearing. If this is a major witness, it is likely that he or she
18 will arrive earlier, will arrive before the weekend, so he or she will
19 spend the weekend and Monday here.
20 Proofing is a procedure which are you familiar with, because you
21 spoke about it yourself in which the Prosecutor meets with their witness
22 prior to the hearing in order to speak with the witness about the written
23 statement, because the written statement may have been drafted many years
24 before. The witness is then shown documents which are going to be put to
25 him at trial in court. And there's some kind of training that takes place
1 in order to prepare the witness for testimony.
2 During this preparation, it may happen, and I would say that it
3 nearly always happens, that the witness may wish to make some changes to
4 the statement he made several years before. Let me take a very simple
6 Several years before, he may have said that most of the houses in
7 his village had been destroyed, and then on the day when he comes to meet
8 with the Prosecutor he will say, Well, that's what I said then but I was
9 wrong. There was only about 30 per cent of the houses that were
10 destroyed, it's not quite the same. So this is a new factor that comes
11 into play.
12 The Prosecutor is under the obligation to notify you of that
13 straight away without delay. Equally, when they meet with the witness,
14 the Prosecution had not planned to produce a document, and they realise
15 that they now need the said document, which you did not have in the
16 initial list. The Prosecutor is under the obligation of informing the
17 accused that they plan to produce in court a new document.
18 What is the problem? Let's say that the hearing begins on
19 Wednesday morning at 9.00 in the morning. The Prosecution will meet with
20 the witness on Tuesday at 5.00 in the afternoon. They have a meeting with
21 the witness until 11.00 at night, which is not just theoretical because it
22 is often the way it happens.
23 At 11.00 p.m., the Prosecutor has to inform you that changes have
24 been made to the witness's statement and that are there new documents. It
25 is 11.00 at night. You are in your cell fast asleep. The hearing will
1 begin the next morning at 9.00. If you were to have a counsel, the
2 counsel is the one who is informed. As you know, counsel works 24 hours a
3 day, so no problem there. But you, you are in your cell. It's 11.00,
4 you're asleep, and you must be informed of these new factors prior to the
5 hearing which is due to begin at 9.00 a.m because you must be informed and
6 possibly you must be able on Wednesday to conduct your cross-examination.
7 So I really thought this over very thoroughly. What can we do?
8 The only solution, and I've really looked into this, the only solution
9 would be to put into the cell that serves as your library to put a fax
10 machine, which is directly connected to the Prosecution, to the OTP, so
11 that if the Prosecutor had to tell you something at 11.00 at night, they
12 can send a fax. You know there are silent fax machines so you won't be
13 woken up, but as you said last time, you get up at 4.00 in the morning, so
14 no problem there. You can find, at dawn, you can find the new changes
15 made to the witness's statement, you can find the new documents, and you
16 can prepare for the hearing starting at 9.00.
17 Indeed, if the Prosecutor has a new document, that document will
18 be faxed to you as well so you have everything in hand arriving by fax.
19 Of course nobody thought about this problem, but I -- I am a professional
20 and, as such, I have come across this type of problem in other cases
21 before this Tribunal when there are accused or counsel who create problems
22 because they say they have not been informed of changes recently made. So
23 this is the way to go about it so that you are not taken unawares.
24 This is a major problem because that's the result of the proofing
1 So, Ms. Dahl, would that be a problem? Could you inform
2 Mr. Seselj should this come up? Can you inform him?
3 MS. DAHL: If he needs immediate notice, that sounds like a very
4 sensible solution. I prefer not to work at 11.00 at night, but sometimes
5 that's unavoidable.
6 JUDGE ANTONETTI: [Interpretation] Very well.
7 Mr. Seselj, now you've got all the parameters. What do you think
8 of this? It is a technical matter, but it goes to the very heart of your
9 right as an accused.
10 THE ACCUSED: [Interpretation] I would be bothered by being woken
11 up at 11.00 p.m., but I don't mind between 4.00 ran 5.00 a.m. I'm not
12 sure the detention authorities will technically be able to install a fax
13 machine in my cell. That would be a good solution, but I don't know what
14 their capacities are. Although there is a telephone set close to my cell,
15 there could be a possibility of getting a line into my cell that would
16 involve some additional construction works.
17 I remember Mr. Milosevic had practically an office inside the DU,
18 and he had a telephone and a fax there. If that could be placed within my
19 cell, then I wouldn't need an office, and I suppose that would save
20 resources to the DU. But I hope those cases would be rare, and they would
21 not surprise me with urgent documents too often, because I need time to
22 prepare my response to those amended and modified documents. It's not
23 just a question of familiarizing myself but also of taking action to check
24 that out, to find counterproof, counterevidence. Therefore, this is
25 possible as an exception, but it shouldn't turn into a practice.
1 JUDGE ANTONETTI: [Interpretation] All right. But experience shows
2 and that is experience that is most important. There are witnesses now,
3 and they're going to be Prosecution witnesses, but you'll have your
4 Defence witnesses too. The witnesses come and have a proofing session
5 with the Prosecution or with the Defence if they are Defence witnesses.
6 And sometimes witnesses come with documents.
7 The Prosecution did not know anything about the existence of such
8 documents, neither did the Defence, if they are Defence witnesses. And
9 witnesses say, Well, look, six months ago I found this document. So there
10 is the late discovery of documents that are sometimes very important.
11 In this case, it is incumbent on the Prosecutor to inform the
12 accused of such documents. Sometimes we have international witnesses who
13 have notebooks in which they have recorded their entire lives. I mean, as
14 part of their work, and they come and say, Look I've got my own log-book
15 or my own notebook, and I make it available to you, but this is not
16 something that they said to the investigator previously. So this is the
17 type of problem that might come up.
18 THE ACCUSED: [Interpretation] I know. But in some other cases as
19 well such problems occurred. However, if something of that kind happens,
20 Judge, then the testimony of that witness must be delayed because that
21 document must be translated into Serbian, especially if there is an
22 international witness. Even there I will not accept anything in foreign
24 Defence council in other cases accepted such documents because
25 they were required to know English; although, many of them just signed a
1 statement saying that they knew English without actually knowing the
2 language, and they were forced to accept such documents. In my case these
3 documents have to be translated. Only translated can such documents be
4 relevant for me and used in cross-examination. Until they are translated
5 they practically don't exist, as far as I'm concerned.
6 JUDGE ANTONETTI: [Interpretation] Well, Mr. Seselj has just raised
7 an issue which is that if you have a document of this type but it's not
8 translated, he's going to challenge it, and he wants that -- you know, the
9 hearing of that witness to be stayed.
10 There's one way of solving this problem: Don't wait until the very
11 last minute to size up the problem. If you got in touch with such a
12 witness some weeks before in order to see whether they have new documents
13 and if they say, Yes, I have, it's a document in English, then you will
14 ray have to make sure it is translated.
15 Yes Ms. Dahl.
16 MS. DAHL: I'm in agreement of thinking ahead and planning. I
17 would presume that Mr. Seselj would insist continually during trial for
18 documents to be disclosed in his own language rather than assuming that he
19 would shift from that position.
20 While we have been in court, we have been checking on the service
21 of the pre-trial brief in translation in its full and unredacted form, and
22 I've located a process verbal showing that it was served on Mr. Seselj on
23 10 August.
24 So I think that he has everything that he needs in complete format
25 I was not aware that -- actually, not that I wasn't aware. There was
1 nothing redacted from him in the confidential version that was served
2 10 August. The redactions are what was in the public version, and he was
3 served with those pages to make sure he was informed fully of what was
4 appearing in the record of the case.
5 JUDGE ANTONETTI: [Interpretation] Apparently, Mr. Seselj, a
6 document was served on you on the 10th of August, a document was served on
7 you, and from what Ms. Dahl says it should be the final version.
8 THE ACCUSED: [Interpretation] Judge, that's absolutely not true.
9 I signed receipt for every document. In August first I received the old
10 pre-trial brief, then its supplement from 2003, or rather, 2005, whenever
11 that supplement was made. And I was astounded to see they were serving it
12 again. Then they served me with the new pre-trial brief with those
13 passages left out. I never received a final version of the pre-trial
14 brief. The Prosecution is in possession of all my receipts and so does
15 the Registry. This is absolutely not true.
16 But nobody can make it clear to me why they served me with the old
17 pre-trial brief in the first place. Somebody seems to be trying to
18 confuse me deliberately. I got the old pre-trial brief and its
19 supplement, and then several days later I got the new pre-trial brief with
20 those lines blacked out and that's the only thing I received.
21 JUDGE ANTONETTI: [Interpretation] Well, Mr. Seselj is telling us
22 that as far as he knows the latest in pre-trial brief he received was one
23 with [indiscernible].
24 So what's the situation.
25 MS. DAHL: I will found out and make sure that he has what he
2 JUDGE ANTONETTI: [Interpretation] Thank you for that.
3 Mr. Seselj, I'm going return the three binders to you, and I'm
4 going to address the issue you raised in relation to them.
5 You complained that many documents were given to you and you did
6 not see why they were relevant. You gave an example, that of JNA rules as
7 to the command structure in the army. This is what you said. It may be
8 that in your eyes that's not important or has no direct bearing on your
9 case. But, you see, it could be relevant and I'll tell you why.
10 If individuals can be accused of specific crimes, and if these
11 individuals were dressed in uniforms, whatever they are, if they were
12 wearing uniforms, they must be or have acted carrying out orders they have
13 received, and there could be orders among the evidence. I don't know. I
14 have not seen the documents yet. I'm just saying this as a mere
15 hypothesis. If there were orders, the question is whether the orders were
16 drafted on the basis of the then applicable rules within the former
17 Yugoslav Army or applicable in the JNA or in the TO formations. If this
18 is the case, to see whether the order was in keeping with the rules and
19 regulations, the accused needs to have those rules and regulations. I
20 guess this is the reason why the OTP disclosed all these documents to you.
21 Admittedly, there are documents that are more or less relevant.
22 Admittedly, in your eyes, and it may also be the point of view of the
23 Trial Chamber, one can wonder whether certain documents are relevant or
24 not. But there may be documents which do not appear to be relevant on day
25 1 of the trial. Well, those documents could be or seem relevant on day 81
1 of the trial.
2 Therefore, all the documents disclosed to you under Rule 66 and
3 under Rule 68, all the documents in the 65 ter list, are documents used to
4 draft the indictment, and they also can be mentioned in the pre-trial
5 brief. So before saying that certain documents are not relevant, you
6 should look at them. But it is true that you risk being flooded with
7 documents, and we are talking about tens of thousands or hundreds of
8 thousands of pages that have you to come to terms with. Maybe you are up
9 to the task but you do have associates, and they are all worth looking
10 into. You have received the binders from the Prosecutor. I have received
11 them too. I think I have received at least 29 binders. I believe
12 Ms. Dahl is going to send 150 of them in the next few day? Is that right?
13 You still have another 120 or 30; is that right?
14 MS. DAHL: I believe we're making arrangements for delivering
15 another batch this afternoon.
16 JUDGE ANTONETTI: [Interpretation] Very well. Of course you need
17 look at these binders. You will see there are lists, index lists, you
18 will see that very quickly. So exhibit number 1 is easily dealt with. So
19 you do that work, you're going to go through all the documents, see which
20 are the essential documents to you and those that are not.
21 This is what you're going to get. Because all the documents that
22 will get to you in these binders are numbered 1 to 3.000 or 5.000, I can't
23 remember, and they are the Prosecution's exhibits. But you know that when
24 witnesses come to testify, you will get exhibit binders that will be
25 submitted to the witness, and they will have exhibit numbers and you will
1 have received the list beforehand. And on the day of their testimony,
2 you'll get from the Prosecutor a binder with only those of the documents
3 that are going to be put to the witness.
4 But that's another stage of the proceedings. This is what I
5 wanted to tell you regarding all the binders.
6 Yes, Ms. Dahl.
7 MS. DAHL: Your Honour, it occurred to me in considering the
8 logistics in considering logistics of the difficulties that Mr. Seselj
9 will have representing himself, how he will be able to transport his work
10 product that he might need for a particular day in court back and forth
11 with him. I mean, he won't exactly have a trolley for his notebooks, and
12 I'd like to get some thought in advance to make sure that he has what he
13 needs in the courtroom as well as in his house.
14 JUDGE ANTONETTI: [Interpretation] Yes, absolutely.
15 Ms. Dahl is telling you something that is important. You'll soon
16 notice, Mr. Seselj, that when a witness comes to testify, the Prosecutor
17 comes with a trolley, containing various binders, documents related to the
18 witness but also related to other parts of the trial. So the Prosecution
19 comes with their trolleys. I've worked on other trials here, and I see
20 that Defence counsel also come with their trolleys. They're all equipped.
21 When we have a self-representing accused, the only case I am aware
22 of is that of Mr. Milosevic, he was representing himself and would
23 cross-examine witnesses, I can't remember that he came with trolleys, I
24 can't remember that very distinctly, but if you plan that for a particular
25 witness, you'll have to make sure that your associates do prepare the
1 necessary documents to make them available to you.
2 Have you thought about this?
3 THE ACCUSED: [Interpretation] Judge, I will prepare my own
4 documentation myself, and I have always guards next to me who will have to
5 carry that material because I am handcuffed throughout the transportation.
6 So guards may have to undergo some harder physical training or maybe the
7 guards can push the trolley. But there is something else that you said,
8 judge, that is more important to me.
9 The former Yugoslav People's Army published as an official manual
10 for all soldiers, non-commissioned officers, and officers a collection of
11 regulations of international humanitarian law, and none of the three
12 categories, soldier and CO officer or politician can say that they didn't
13 know something was prohibited under international laws of warfare. If
14 something was done, then they knew while doing it that it was wrong, that
15 it was prohibited by law, and that document, which the Prosecution served
16 on me, of which I was aware even before because I had served in the army
17 is sufficient.
18 However, the rule of the corps is a matter concerning the strategy
19 of warfare. It is learned in schools for generals or military academies.
20 It deals not with international laws of warfare, just with military
21 strategy, because a corps is a strategic unit. A brigade can be an
22 operative or a strategic unit, a company is a tactical unit. So tactics,
23 operations, strategy, and logistics are purely military disciplines that
24 have nothing to do with international laws of warfare. I know in advance
25 that the documents are not relevant because I am more qualified in this
1 respect than the Prosecution. There is an even greater problem that I
2 tried to point out at one of earlier Status Conferences. Those documents,
3 in the understanding of the Prosecution, should be admitted into evidence.
4 How are they going to be admitted into evidence if the Prosecution
5 has only 100 hours to lead their evidence and 4.000 documents. Here in
6 the courtroom, at least briefly, each of these documents has to be looked
7 at and mentioned. I will use each of my documents that the guards will
8 pull on a trolley. It's not the trolley that's the problem. It's the
9 whole idea is inconceivable. It's impossible. This trial is conceived as
10 a spectacular one. The Prosecution thought they would succeed in imposing
11 Defence counsel on me and they were wrong. Now this whole spectacle is
12 being reduced to a small trial, 100 hours for the Prosecution and 100 for
13 the Defence and that's it.
14 That amount of evidence cannot be pushed through within 200 hours,
15 and I will not allow any document to be admitted into evidence without
16 establishing myself, the link with the witness, and without the
17 Prosecution explaining why that document is relevant. They have 4.000
18 documents, and they want to snow me under 150 binders. I don't know what
19 to do with them.
20 But what's going do be difficult is to admit all these documents
21 into evidence, because I will question the relevance and authenticity of
22 every document. They won't manage just to have them automatically have
23 them admitted. The fact that this has gone on in other trials, in other
24 cases, doesn't mean that it will work with me. Not a single document will
25 be admitted into evidence before the Prosecution explain what in the
1 document is relevant and before I am given the chance to question the
2 relevance set aside even the questioning of witnesses.
3 I don't know if Ms. Dahl has much experience in other cases,
4 obviously she doesn't know much about the procedure and she needs a more
5 capable assistant to explain to her the procedure, and to explain to her
6 that she has to rationalise the Prosecution case and restrict the amount
7 of evidence.
8 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, apparently the
9 Prosecution intends to use 4.000 documents, it might be less, it might be
10 more, I'm not sure. For the time being, we do not know.
11 The Prosecution have listed all the documents on that list
12 according to what I requested. We have cross-references between these
13 documents and the relevant paragraphs in the indictment. Therefore, the
14 documents should be shown to be relevant because they relate to a specific
15 paragraph of the indictment. In that list, you will see that one
16 particular document may be related to various paragraphs of the
17 indictment. In other words when a witness comes to testify, and that
18 applies to all trials here, to the Milosevic trial, to all trials, the
19 documents will be shown to the witness who might identify it or not.
20 According to the case-law of this Tribunal, documents that are not
21 known to the witness may be admitted into evidence. The Prosecutor may
22 say, The following is stated in this particular document, do you agree, do
23 you challenge this and so on and so forth. You yourself, as an accused,
24 may, as part of your cross-examination, challenge this and tell the
25 witness you said this in relation to this paragraph of the document, but
1 in the other paragraph we see this and this.
2 Therefore, a document is being looked at very thoroughly as part
3 of the examination process. The document is also available to the Judges
4 and they may ask questions on the basis of the documents. After that, the
5 Prosecution will ask for the document to be admitted, and the Defence may
6 challenge the admission. And it so happens that I wanted to deal with
7 this particular issue. A document is admitted into evidence based on two
8 criteria. The first one is the criterion of relevance; the second one,
9 the second factor to be taken into account is probative value. Probative
10 value must be rated zero plus to infinitum. But first we might have a
11 document that is not very relevant and does not have a very high level of
12 probative value but that does not mean that the Trial Chamber will
13 automatically dismiss the said document. We might have a document that
14 initially does not appear to be very relevant, but as with various
15 witnesses coming and testifying, the document might appear to be much more
16 relevant than at first thought.
17 You have raised two issues just now. You raised the matter of the
18 number of documents of you are telling us that the Prosecution will not
19 have time to submit all the 4.000 documents in the 100 hours granted to
20 them. Therefore, the Prosecution will only submit the most important
21 documents that have been mentioned in the pre-trial brief in the
22 footnotes. The major documents are mentioned in the pre-trial brief, all
23 of them. These documents will be submitted to the witnesses. Other
24 documents will also be shown to the witnesses. Since we are dealing with
25 your case, but you have to remember that in other cases as well, thousands
1 of documents are being submitted.
2 According to the case-law of the Tribunal, if documents have not
3 been submitted to a particular witness for -- because there was not enough
4 time or because there were just too many documents, a written submission
5 may be filed by the Prosecution for the admission of these documents
6 afterwards, provided that the documents are relevant, have a probative
7 value, and confirm, supplement, or corroborate what the witness has said
8 or the -- what was said or written in other documents. The accused is
9 free to accept or to dismiss the application. He makes his submissions in
10 writing, and afterwards, the Trial Chamber rules on this matter.
11 In other words, Mr. Seselj, out of these 4.000 documents listed by
12 the Prosecution, the Prosecution may have only enough time to put to 1.000
13 or 2.000 documents to the witnesses, I'm not quite sure. If the
14 Prosecution want to tender additional documents, they will file a written
15 submission explaining why the documents have not been shown to the
16 witnesses, why they want them to be admitted, et cetera.
17 A number of decisions of that kind have already been issued in
18 this Tribunal. The same will apply to you when you call your own
20 Let's imagine that you call 2.000 witnesses. You call the
21 witnesses and 20.000 documents. You will have to make a selection, you
22 will have to go for the most important documents. As for documents that
23 are not that important but that you want to show to the Judges anyway, you
24 will be in a position to file a written application asking for their
1 Why have we adopted this procedure? Well, it is because we are
2 working in a system that is a mixture of common and continental law. What
3 would have happened in my country, in your country? Well, as part of the
4 investigation, all documents would have been -- would have been admitted
5 into the file, into the case file. And then everyone, all the parties
6 would have had access to the documents.
7 But here, in this Tribunal, we are working according to the
8 principles of common law when it comes to evidence. The Judges of the
9 Tribunal, acting very wisely, have improved on the common-law system.
10 They've accepted the admission of documents that have not been shown at
11 trial. Because, as in the common-law system, documents are always
12 admitted through a witness. But in common-law procedure when you -- when
13 a cow thief is being tried, this thief is not being shown thousands of
14 documents, of course.
15 Here, this Tribunal, we are dealing with cases that involve a very
16 large number of documents, and because of this large number of documents,
17 it is not physically possible to have a look at all these documents, and
18 since not all the documents can be shown, because if that was to be the
19 case, we would need hundreds of years to complete the trials and we would
20 all die before the end.
21 A system -- a new system was needed, and the system that has been
22 implemented in this Tribunal is that, as a general rule, documents are
23 submitted and admitted through a witness, but when the -- there are too
24 many documents and not enough time, documents may be admitted following a
25 written application. The rights of the accused are fully complied with,
1 because the accused may challenge the documents mentioned in the
3 This is what I wanted to tell you with respect to the number of
4 documents, because that might pose a problem to you, but the Chambers have
5 solved the problem in the way I have just outlined.
6 Mr. Seselj.
7 THE ACCUSED: [Interpretation] Judge, you mentioned wisdom, the
8 wisdom of the Judges of this Tribunal. That wisdom is widely known
9 throughout the world, and therefore what is combined in this Tribunal are
10 the most negative elements of Anglo-Saxon and continental law. That is a
11 well-known fact by now in law. In continental law, in civil law, it is
12 the judge who checks the authenticity of the document and who is in charge
13 of the investigation, whereas here it is the only the Prosecution that
14 conducts an investigation. The Court does not have an opportunity to
15 check the authenticity of documents unless witnesses are brought in that
16 will confirm that.
17 Recently a request was submitted by the Prosecution for notice
18 regarding certain documents. I'm preparing a reply, and I am going to say
19 that the only thing that can be received that way are official documents
20 like Laws on Defence, Security, whatever else. I'm going to challenge
21 anything, everything else. Stenographic notes where there is not reliable
22 evidence that they are authentic. Individual orders, statements,
23 everything. I'm going challenge all of that, even if I go on for 100
24 years, that cannot be admitted into evidence without leading proper
25 evidence regarding authenticity. Of course you and your colleagues make
1 the final judgement on the probative value and relevance of evidence.
2 However, it is for me to challenge what they are saying and to fight the
3 Prosecution. I will do that persistently. There are some basic facts.
4 Those are texts of laws accessible to all and everything else it can also
5 be excerpts from my books. I'm not going to challenge that; I'm very
6 proud of my books. A lot of evidence pertains to that too.
7 However, everything where authenticity is not proven I will
8 persistently and bitterly challenge. If I receive alleged stenographic
9 notes on the establishment of the Serbian Democratic Party and I never
10 attended that meeting, that Assembly, the Prosecution has to prove that
11 through a witness who's going to say, Yes, those authentic stenographic
12 notes from that Assembly. Otherwise, it cannot be admitted into
13 evidence. Well, it can be admitted but through violent means, violent
14 methods. In many trials before this Tribunal these violent methods were
16 You know, I carefully studied Mr. Milosevic's case and that is why
17 most of my examples have to do with that particular case, because the
18 Serbian Radical Party, in 38 books and periodicals, published all the
19 trial documents except for closed sessions. I learned a great deal from
20 that trial. When Mr. Milosevic asked for a judgement of a Serbian court
21 to be admitted into evidence, the Prosecution challenged that and the
22 Trial Chamber ruled irrelevant, cannot be admitted, Serbian courts cannot
23 be trusted. But even when the most meaningless statement of the other
24 side in this war is proffered that is admitted. I'm going challenge that
25 throughout, every inch of the way. Case-law and jurisprudence can be
1 binding to a certain degree, but not negative case-law, especially not
2 case-law which I can prove is negative. I will go on challenging that and
3 disputing it.
4 Secondly, the Prosecution wants a certain number of documents to
5 be admitted into evidence along with statements and testimonies by dead
6 witnesses from other trials. How could that be possible? That is beyond
7 belief. That cannot be done in common law or in civil law. Nowhere. Of
8 course, a document can be evidence in its own right. The Prosecution can,
9 within their opening statements, proffer a certain number of documents,
10 but those are the type of documents that are not contested by their
11 nature, official documents published in Official Gazettes and, in this
12 case, excerpts from my book. I'm just going to have a careful look to see
13 whether they forged something at some -- in some place. So far they
14 haven't falsified or forged anything, and I assume they won't do that in
15 the future either.
16 And that's it. They can also present video-clips of my speeches.
17 I'm not going to challenge that either. Everything else I'm going
18 challenge because it is my right to challenge. If I don't have time to
19 challenge, then that will be a problem for the Trial Chamber. It won't be
20 my problem. I have to have to the opportunity to challenge everything;
21 otherwise, they will be compelled to make restrictions.
22 You know, for them to make a list of exhibits that they did not
23 have time to include along with the testimony of some witnesses and to ask
24 to have this admitted automatically, that is impermissible to my mind.
25 That is not allowed by common law or continental law. In continental law,
1 the Prosecutor is not trusted a priori. In continental law, the
2 Prosecutor is one of the parties. Not a single police report is admitted
3 in continental law, not a single police note. Not a single hearing by the
4 police, or interview, whereas they were cases here where this was directly
5 admitted into evidence.
6 Illegal wire-tapping evidence in continental law is never admitted
7 into evidence, whereas there are cases here where illegal wire-taps were
8 admitted into evidence. Illegal wire-taps -- wire-taps were admitted into
9 evidence. Very rarely was the authenticity of these recordings
11 In this case, the Prosecution offered many taped telephone
12 conversations, most of them are highly irrelevant, in my view. But as for
13 every one of these intercepts they will first and foremost have to submit
14 proof as to how legal it was to wire-tap these phones. And a witness with
15 only an elementary education, without any education cannot recognise my
16 voice or the voice of my interlocutor. What kind of evidence is that? A
17 expert has to ascertain how authentic my voice is in the case of an
18 intercept. That is it something that cannot be challenged in law.
19 JUDGE ANTONETTI: [Interpretation] The Trial Chamber will consider
20 the matter. But here again, I may tell you what I think about the matter
21 personally. You're talking about wire-tapping, and I don't know the case
22 file, I don't know if your voice has been recorded, if there are any
23 intercepts with your voice on it.
24 But let's assume that your voice has been recorded, illegally or
25 not, I'm not quite sure. If you have been recorded, the recording will be
1 played at trial. You will be in a position to listen to it, and you may
2 say, It's not my voice. The recording has been tampered with. According
3 to the Rules of Procedure and Evidence, the Trial Chamber may exclude any
4 evidence when the probative value of the evidence does not comply with the
5 principle of a fair trial. Therefore, any evidence may be dismissed.
6 I have listened very carefully to you, and it seems to me that you
7 are concerned, you are concerned because some things happened in another
8 trial and you challenged the procedure in another trial. Rest assured,
9 that the Trial Chamber in this case will examine and consider the matter
10 conscientiously when it comes to admission of evidence. You mentioned the
11 issue of authenticity. If you believe that a given document is not
12 authentic because, according to you, it is a forgery, you will have the
13 opportunity to say so. When it comes to the reliability of a document, a
14 number of factors are taken into account. Let me give them to you for
15 your information.
16 When we are dealing with documents, especially military, state,
17 public documents, police documents, usually you have a stamp on such
18 documents. You have a signature, a date, a registration number, and then
19 you have the document proper. If a document is challenged because of its
20 authenticity, the Trial Chamber will review the document according to all
21 the factors I have just listed. That's the way we go about it. If you
22 believe that the stamp is a forgery, that the signature is not the
23 signature of the person it pertains to be, you may say so and you may
24 bring your evidence against this. Believe me, Mr. Seselj, there may be
25 documents that have been fabricated, forged, but professional Judges will
1 notice that immediately. It very rarely happens that an accused is
2 prejudiced because a Trial Chamber has admitted the document without
3 further adieu.
4 Although a party to the proceedings, the Prosecution has to
5 apply a number of ethical principles. The Prosecution may not provide any
6 document without any checks. As part of the adversarial system, you will
7 be in a position to challenge these documents, will have the opportunity
8 to deal with this matter later. We now need to have a 20-minute break
9 because the interpreters need a rest, and we need to change the tapes.
10 20-minute break, thus --
11 [Trial Chamber and registrar confer]
12 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, I'm being told that
13 the interpreters working with us today have been working since this
14 morning, and they can't work later than 6.00 p.m. Further more, we need
15 to have a break for technical reasons. We need to change the tape.
16 Therefore, I find myself in a position where I have not been able
17 to deal with all the issues I wanted to deal with. We'll meet again as
18 soon as practically possible to continue these Status Conferences in
19 preparation for your trial.
20 Let me tell you briefly what will be the next time we meet. I
21 wanted to deal with the pending motions, but of course you're yourself
22 familiar with these motions. I intended to deal with the matter of
23 disclosure, but that's a matter that has been discussed at length already;
24 and I also wanted to deal with the matter of the examination-in-chief and
25 the cross-examination, but we have to stop for today.
1 [Trial Chamber and registrar confer]
2 JUDGE ANTONETTI: [Interpretation] Well, I'm being told that we
3 have five minutes left. Five minutes.
4 Mr. Seselj, do you want to add something?
5 THE ACCUSED: [Interpretation] Well, not in respect of what we have
6 been discussing so as far. I could discuss some new matters, but I can
7 leave that for the next Status Conference.
8 JUDGE ANTONETTI: [Interpretation] Very well.
9 Ms. Dahl, do you have other topics you'd like to deal with within
10 the very few minutes left to us?
11 MS. DAHL: No, Your Honour. Thank you.
12 JUDGE ANTONETTI: [Interpretation] Very well.
13 Just a final word. Mr. Seselj, the detention conditions nothing
14 to say. Health-wise, is that okay too?
15 THE ACCUSED: [Interpretation] No.
16 JUDGE ANTONETTI: [Interpretation] Very well. The legal officer is
17 telling me this yesterday very quickly, we dealt with the issue of your
18 associate, the one who must meet the requirements as per Rule 45 of the
19 Rules. Let me reassure you totally in saying this. In the part of the
20 decision related to the implementation of Rule 45, the only condition is
21 that one of the members of your team, including those in Belgrade and
22 possibly those who will come to The Hague, that one of them only be a
23 lawyer or be a professor of law. You've already told me that there were
24 some who were lawyers or professors of law in your list. That means that
25 the condition is met. As far as I can see, it cannot be required of those
1 are to come to The Hague. It is enough for you to have among the group of
2 people assisting you here or in Belgrade or elsewhere just one person who
3 is either a lawyer or a professor of law.
4 That's all I wanted to say.
5 The time has come to conclude. Thank you. I thank all the
6 participants for their very good behaviour. It's been quite a long day.
7 It was long on Friday already, and I look forward to meeting you soon.
8 The hearing stands adjourned.
9 --- Whereupon the hearing adjourned at 5.42 p.m.