1 Tuesday, 6 November 2007
2 [Pre-Trial Conference]
3 [Open session]
4 --- Upon commencing at 2.17 p.m.
5 [The accused entered court]
6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, please call the
8 THE REGISTRAR: Good afternoon, Your Honours. This is case number
9 IT-03-67-PT, the Prosecutor versus Vojislav Seselj.
10 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.
11 Today is Tuesday, 6th of November, 2007, my greetings to the
12 representatives of the Office of the Prosecutor, especially Ms. Dahl and
13 her assistant. Let me greet Mr. Seselj as well, without forgetting of
14 course the registrar who is getting to assist us throughout the trial
15 proceedings, the usher, and the interpreters who help us in our work.
16 Today we have convened our Pre-Trial Conference pursuant to
17 Rule 73 bis of the Rules of Procedure and Evidence. Indeed, during the
18 Pre-Trial Conference the Trial Chamber is going to set the number of hours
19 and witnesses, but before we get there this is the first time the full
20 Bench is present at the hearing. On my right-hand side I have Judge
21 Harhoff and on my left-hand side Judge Lattanzi, and we are going to be
22 the Trial Chamber seized of this case. I was the Pre-Trial Judge and as
23 such, it is my duty to finalise the pre-trial proceedings by tackling a
24 few pending questions before moving on to the main item which is to fix
25 the number of hours as well as the number of witnesses.
1 With regard to the remaining questions as the Pre-Trial Judge, I
2 went last week to the Detention Unit where Mr. Seselj is detained in order
3 to see by myself what the working conditions were for him since he's
4 representing himself. And together with the registrar, the court deputy,
5 and the Legal Officer, the Senior Legal Officer, I was able to go into his
6 cell and realise that the Detention Unit administration had given him a
7 cell next to his in which he has on shelves his documents including the
8 binders handed over to him by the Prosecution and the binders had been
9 received by the Trial Chamber.
10 However, Mr. Seselj, I had the distinct impression that you did
11 not have enough space. That was my impression upon visiting you. You
12 have a lot of documents, and it might be good that the Detention Unit
13 administration give you another room in which you can store documents that
14 you don't use right then or documents that you have already viewed and are
15 less important for you so that you have available to you just right next
16 door to your cell the main documents. In this way, that is at least the
17 way I feel about it but I would like to know what your opinion is, you
18 would have more room in order to process and manage all these documents
19 because I was able to see that you had to put documents on the floor, and
20 the lack of space is quite obvious. If you so apply, I think that my
21 fellow Judges will also support your application to the prison management
22 so that you have another room and are able to work as best you can.
23 So, Mr. Seselj, on this issue do you want to say anything?
24 THE ACCUSED: [Interpretation] Judges, I appreciate your
25 attentiveness; however, had I been filing these materials the way the OTP
1 had been sending them over the past several days, not even the entire
2 floor in prison would have been sufficient. I was trying to save space to
3 a maximum because I singled out all the documents that were in the English
4 language and sent them back to the OTP. As for most of the documents in
5 the Serbian language, I took them out of the binders, and I filed them
6 according to the subjects involved so that it would all be handy. These
7 piles of paper are due to the fact that they were taken out of binders.
8 It's been a long time now that there hasn't been enough space for binders.
9 In this situation I've been managing pretty well. I still have enough
10 space, and for the time being these two adjoining cells are sufficient.
11 If the Prosecution meets all their obligations, possibly I will
12 need yet another cell for storage, but I am sure that the OTP is never
13 going to meet all their obligations because the OTP, quite simply, has not
14 disclosed documents to me at all according to Rule 68(i). They have not
15 disclosed to me transcripts from other cases that have to do with
16 witnesses who are supposed to appear in this case as well. They haven't
17 supplied me with these materials on paper and in the Serbian language.
18 They insist on disks and DVDs. They have to meet their obligation. They
19 have to send me the transcripts because that is the only thing I can use
20 in proceedings, not DVDs, however they refuse to meet that obligation of
21 theirs. Probably if they do not do so to the very end, I will not really
22 need the space.
23 JUDGE ANTONETTI: [Interpretation] I shall come back to this later
24 on, but if I am not mistaken, right now you are satisfied with this
25 additional cell that was made available to you. And depending on the
1 documents to come, as you just said, it might then be necessary for you to
2 get an extra cell. Very well. I take due note of this request of yours,
3 but of course I am bound to approve this when the need arises.
4 Last time, Mr. Seselj, I told you that as the Pre-Trial Judge I
5 was going to meet with the Registrar in order to speak about the issue of
6 the translation of your book once again. On this core let me say this.
7 During the meeting I had, I was told - and this had somehow escaped me -
8 in your book that is over 1.000 pages long, the Cyrillic alphabet is a
9 small font. So as a matter of fact, we're not talking about 1.000 pages,
10 but more than 2.000 pages if you have the usual font used in this
11 Tribunal. So that's if they wanted to translate the book, they would have
12 to translate 2.000 pages. I was told very clearly that they are not at
13 all able to translate 2.000 pages, the 2.000 pages of your book.
14 I took note of what I was told, and as far as I was concerned at
15 my level I tried and endeavoured, and I would like to seek your view on
16 this, too. At the latest Status Conference I had said that if 1.000
17 pages -- in fact, 2.000 pages were to be translated, you would need to
18 recruit a translator for over one year, and one translator who would do
19 nothing but that, so that has a cost. And you then said that in Belgrade
20 you could have translations done for less money. So you had this idea
21 which you suggested, and it's worth looking into for a while.
22 At your level for the time being, would it be possible to consider
23 two possible options, the first being that you obtain a publishing
24 contract with an Anglo-Saxon publisher and the book is then translated and
25 you provide us with the English translation, the book in English, and the
1 solution would be that. The second option which may be more practical in
2 nature is this: Together with your associates, could you try to have a
3 translation agency in Belgrade or somewhere else that would give you a
4 quotation for the cost it would involve to have the book translated, so
5 you would have a quote, you would send it to the Registry, and the
6 Registry, as part of the facilities you are entitled to pursuant to the
7 Statute, would pay for the cost based on this estimation you would be
8 given. In this way your book could be translated. So you would be
9 satisfied and the cost would be met by the Registry, and in the ensuing
10 discussion you would have the book fully available to you. And I suppose
11 that you would then seek to tender it into evidence.
12 So these are practical solutions. I must say - but I've said this
13 already - the Registry and the entire Registry staff are doing their level
14 best, their level best in order to make sure that your rights arising from
15 the Statute and from the Rules are complied with and are such that you can
16 defend yourself the best you can. I did not feel any reticence on their
17 part. It's only that when they said they were not able to have the book
18 translated is because they come up against a real problem, a real
19 logistical problem, but unfortunately so you are not the only one on
20 trial, there are other cases, other documents to be translated. So these
21 are two options open to you.
22 In this respect could you tell us what your feeling is, knowing -
23 and I remind you so that you have really all the factors in mind, you know
24 that the Trial Chamber is going to issue some trial guide-lines shortly in
25 which we are going to talk about the admissibility of evidence, and you
1 may not know - but I'm sure you know because you've often displayed your
2 full knowledge of our proceedings - the jurisprudence in most Trial
3 Chambers when it comes to books is that excerpts and not entire books are
4 admitted because a passage may be relevant and have probative value. So
5 there's no point in having a whole book with hundreds, if not thousands,
6 of pages admitted whilst only the Judges or yourself would only insist on
7 a very specific part of a book, a chapter for instance. So keep this in
8 mind, please.
9 The admission of a book, especially because of translation
10 problems, is of a limited scope and it is also controlled by the Trial
11 Chamber because it is impossible to tender thousands of pages that are
12 very costly to be translated, whilst you may just need five lines in the
13 book or five lines may be relevant at all. So this is what I wanted to
14 convey to you by way of information.
15 Now, as to the practical solutions that could be found by the
16 Registry, what is your view on this? Last time indeed you told me that
17 this was a very important book to you for your defence, and I endorsed
18 what you said by putting on record that by reading the index of the book,
19 one could see chapters that are directly linked to the indictment, be it
20 only the whole chapter on the Greater Serbia in your book. So of course
21 there is a link, there is no doubt about it, but there may be other
22 chapters in the book that may have less of a link at first sight. So this
23 is what I wanted to say. My colleagues and I would like to know what you
24 think of these possible solutions.
25 THE ACCUSED: [Interpretation] Well, I'm going to deal with two
1 problems. The first problem is the problem of the significance of this
2 book to my defence and the other one is the technical problem of
3 translation itself. If you look at the nature of the indictment issued
4 against me, you and your colleagues can see that I am being tried for
5 atrocious war crimes --
6 JUDGE ANTONETTI: [Interpretation] There seems to be a problem with
7 the translation into French.
8 JUDGE LATTANZI: [Interpretation] Yes, I had it and then I lost
10 JUDGE ANTONETTI: [Interpretation] Please make sure that channel 5
11 is on, please. I can hear.
12 Go ahead, Mr. Seselj, please.
13 THE ACCUSED: [Interpretation] I've already said that one has to
14 look at the nature of the indictment issued against me. I --
15 JUDGE ANTONETTI: [Interpretation] Wait a minute. There still is a
17 Very well. Go ahead. Please proceed.
18 THE ACCUSED: [Interpretation] As I've already said, I would like
19 to deal with two basic problems that have to do with this book. The first
20 one is of substantive significance, that is to say for my defence; and the
21 second one is the problem of its translation. If you look at the nature
22 of the indictment issued against me, you will see that I have been
23 indicted of terrible war crimes that I allegedly committed through hate
24 speech as I preached my nationalist ideology that I'm proud of. Then
25 through the indictment and through the pre-trial brief, the OTP shows that
1 they did not understand my ideology at all. This brings us to the
2 question of whether you as the Trial Chamber will be in a position to
3 understand it. My collected works to this day amount to 103 books. All
4 my political speeches are included there, all my interviews for
5 newspapers, texts about me, then my TV duels, my court proceedings because
6 I have been tried about 20 times until now, and only on account of what I
7 said not because of crime. Out of this enormous body of work, I singled
8 out only two books, one I immediately proffered for interpretation, and
9 that is "The Roman Catholic Criminal Project of the Croatian nation."
10 The Prosecution cannot accuse me of having put down Croats if they
11 do not understand what I'm talking about in terms of present-day Croats.
12 I'm saying that the Roman Catholic church as a criminal organization
13 projected this false Croatian nation, having stolen the name of a former
14 medieval Slavic people, the Croats, who virtually went extinct in the time
15 of the Turks. They now invented these new Croats and turned them against
16 their ethnic mainstream. That is hard for people who come from the other
17 parts of the world to understand, however, to understand the nature of the
18 civil wars that were waged in the territory of the former Yugoslavia I
19 believe it is indispensable to read that book.
20 The second book is the ideology of Serbian nationalism. The
21 Prosecution itself translated more than one-third of this book. You have
22 that among the exhibits. The Prosecution understood the importance of
23 this book. They don't understand the content of the book yet but they
24 understand how important it is and they believe that they can use it to
25 support their own thesis. Without this book, without those two books, my
1 defence is virtually impossible and I was very modest on that score.
2 In 2003, here in this courtroom, I handed over to the Prosecutor
3 80 of my books. They picked this up, they read them, they leafed through
4 them, they got documents out of them, and they already built into exhibits
5 many of these documents and interviews. Until now, they translated more
6 material from my books than what the volume of these entire two books is.
7 They translated more until now, they translated more than 2.000 pages from
8 my books. I'm just giving you this for the sake of proportion so that you
9 would see what kind of problem we're dealing with.
10 Secondly, I base my defence on the need to use half of the
11 proceedings or more than half for my own testimony, my own testimony will
12 be based on these books and other things. That is the only way in which I
13 was involved in these crimes that the Prosecutor has charged me with. I
14 have no other involvement in crimes except for what I said and what I
15 wrote. These are verbal deeds or the deed of writing, but nothing more
16 than that. They have been trying to construct something, but that hasn't
17 been very successful, you'll see that through the proceedings.
18 Secondly, we come to the problem of translation. The Registry
19 could have dealt with it already. They have their own office in Belgrade.
20 I cannot do the work of the Registry -- well, in principle I could. But I
21 think that that would be highly inappropriate, in bad taste, that I as the
22 accused should be an agent for the Registry who would be looking for the
23 right kind of agency in Belgrade to have this book translated. Secondly,
24 I won't be travelling for years, decades, especially not to Belgrade, I
25 have to do this through an intermediary, whereas the Registry has its own
1 office in Belgrade, the court has its own office in Belgrade, in Belgrade
2 there are many translation agencies that translate documents into foreign
3 languages. That would be very inexpensive. Your translators here are
4 quite spoiled. Their standard is four pages a day; in Belgrade all of
5 this goes a lot faster and the quality is good, too.
6 When I needed a translation of the Statute of the Serb Radical
7 Party, we engaged an agency, they did this work, it wasn't expensive at
8 all, it was a lot cheaper than what you pay your translators here. But
9 the Registry has to do that. If you really insist that I do this, it's
10 not hard for me to do that, but I think it would be inappropriate, in
11 addition to all the work that I'm doing on my defence to work for the
12 Registry, too.
13 JUDGE ANTONETTI: [Interpretation] Yes. Well, I've listened to you
14 carefully. So you would be of the opinion that the Registry which has an
15 office in Belgrade could see what can be done locally so that they
16 themselves ask for a price estimate. Why not? But this could also be
17 done by your associates who are there in Belgrade, and as early as
18 tomorrow, they can take the book somewhere to have a price estimate very
19 quickly. It all depends on whether you want a solution very quickly or
20 less so. At any rate, you showed and emphasised that in fact there were
21 two books that are relevant to you in your defence. But whilst I was
22 listening to you, I discovered something else which I hadn't quite
23 realised initially. You had told me so last week, but I did not make the
24 connection. You explained that in the 90 books you had written there were
25 many of them containing speeches that you made as part of your political
1 career at the time and there were also other things, and you indicated so
2 that the Trial Chamber can fully grasp the scope and the extent of your
3 political speeches, if I do understand you well and do not betray your
4 thinking, you believe that the Trial Chamber should have all of your
5 political activity of the time as translated into press clippings,
6 articles, TV shows, interviews, et cetera, and you would easily admit
7 that, yes, it is something important and of quite huge proportions,
8 because if the OTP studied your 90 books the Trial Chamber has not done
10 So there is a new question I have to put to you. As you know,
11 trial proceedings here are made up of two stages. There is the
12 Prosecution case and then the Defence case. As part of the Defence case
13 you said that you were going to testify. We understood that very well.
14 However, you, do you plan to call an expert witness; and if so, the expert
15 witness could draft a report based on a summary of all your intellectual
16 or political oeuvre, of your work. Have you planned to do so or not?
17 Indeed, how can you let the Trial Chamber know about the contents and the
18 entire extent of your action because we have three speeches in the
19 indictment, but these three speeches are only minute portion of scores, if
20 not hundreds of writings of yours. So anything that will be missing, how
21 do you plan to introduce that, to tender that, as part of your defence
23 THE ACCUSED: [Interpretation] Judge, maybe I wasn't clear enough
24 or the interpretation was not accurate clear enough. I don't think that
25 you, as the Trial Chamber, should read all these books; it wouldn't be
1 possible anyway. I informed you that in 2003 I turned over to the
2 Prosecution discharging my obligation of disclosure in advance, I turned
3 over 80 books. The guards brought them into the courtroom, and the
4 Prosecution extracted interviews and speeches out of those books that they
5 thought relevant to the indictment. And from the list of exhibits
6 delivered by the Office of the Prosecutor, I saw that they are full of
7 these speeches. They haven't been given to me, but I suppose they will
8 eventually. I wouldn't ask for many more of those speeches and interviews
9 to be admitted into evidence, but my experts from my expert team, when
10 they were handing over to the OTP notice of special defence they made
11 extracts from these speeches from which we see that I advocated humane
12 treatment of civilians, prisoners of war, observation of international
13 law, and there were a couple of hundred pages. The Prosecution translated
14 all that and maybe they made it available to you in English, because I
15 gave them that in 2003. The Prosecution treats them scornfully, like my
16 propaganda speeches.
17 Second, regarding to the Prosecution expert Oberschall, the
18 Prosecution made available to me an additional text of 240 pages. They
19 made an expertise, an expert report, from the Prosecution and we made our
20 own expert report, taking care not to exceed their number of pages. At
21 the time being it was 240 pages, and I'm planning to give it to you. I
22 have experts lined up, just like the OTP has, one of them has already
23 finished his report and gave it to me on hundred pages about hate speech.
24 It's Dejan Mirovic, a member of my expert team assisting the Defence. I
25 will make that available to you in a couple of days.
1 I am dealing with expert reports, and through them I will avoid
2 the need to translate entire books. However, concerning the two books we
3 were talking about, this is not possible. If it had been possible to
4 write the book "The Roman Catholic Criminal Project of the Artificial
5 Croatian Nation" on a hundred pages, I would have written it on 100 pages
6 rather than on 1.000. I wrote it in prison, here from 2003 to end 2006, I
7 wrote it in long-hand. I can show you the manuscript if you wish. It had
8 been possible on a hundred pages, why would I have written a full 1.000?
9 It wasn't possible. It had to be complete, it had to be relevant, every
10 reference had to be mentioned, and they were mentioned in the body of the
11 text itself. In Serbia a great number of scientific meetings have been
12 held and seminars on that topic. It spurred great reactions in the
13 public, it reflects my ideology. If you want to know that ideology in
14 order to make a fair judgement, that book is necessary; if you don't want
15 that, then there's no need to translate anything at all. It is up to you
16 to decide. I can, as soon as tomorrow, ask my associates to find an
17 appropriate translation agency, but the agency has to sign a contract with
18 the Registry because I cannot bear that cost. I am happy that the book
19 was published in Serbian; I am not interested in English or any other
20 language. I am addressing the public in Serbia. I'm not interested in
21 any other public, especially the Western public because it was from the
22 West that all the evil originated throughout the centuries.
23 JUDGE ANTONETTI: [Interpretation] You have reassured me because
24 you have told me that your expert drafted 240 pages in line with
25 Mr. Oberschall's report, and I assume that in these 240 pages some
1 passages will pertain to your book. In addition, you also mentioned if
2 the Trial Chamber is satisfied with this that you have planned to call ten
3 expert witnesses. The pending work will be completed very shortly and you
4 will be able to then present this to the Chamber. This clearly
5 demonstrates that you are actively preparing your defence. Perhaps there
6 is something which was badly translated a while ago, something you did not
7 understand properly. What I wanted to say to you that if in Belgrade
8 somebody whom you know, somebody close, your wife or one of your
9 associates or X, Y, Z, anybody, goes to see a translation agency, the
10 agency then prepares an estimate and indicates how much that will be. And
11 then this estimate, which is not a binding document in any way, can then
12 be send to the Registry and the Registry can approve it because the cost
13 is reasonable. And then that problem is solved.
14 You told me that as far as you were concerned it is for the
15 Registry to deal with this. You are quite right, but I would also like to
16 draw your attention to the fact that if you wish to gain time and to make
17 sure that all these pages will be translated, as your book has already
18 been published, you can give us an approximate estimate and then the
19 registry can on the basis of the estimate and according to the amount
20 agree or disagree. This is what I wanted to tell you. Have you
21 understood me well?
22 THE ACCUSED: [Interpretation] Yes, I can do that. I can do that
23 as soon as tomorrow and I can inform you maybe as soon as Thursday.
24 JUDGE ANTONETTI: [Interpretation] That being settled, I shall move
25 on now. As I told you, as a Pre-Trial Judge and now that we have a proper
1 Bench, it is of course right that you should be able to express yourself
2 and you should be able to prepare yourself and to prepare your defence
3 properly. I therefore would like to address another issue, which is, so
4 to speak, a stand-by issue for the time being and that relates to the
5 issue of your associates. You told me - and this was very clearly spelled
6 out by you last time - that your associates remain in Belgrade, will not
7 be here because you felt that there was no reason for you to give to the
8 Registry the name of one of the three associates of yours who is a lawyer
9 and who is a member of the Belgrade bar. You were very clear on this
10 particular point.
11 Since we met last time, I have spent a lot of time thinking about
12 this and I have tried to find a way of settling this issue. In my mind -
13 and I believe my colleagues share the same feeling - in light of the
14 experience of my colleagues also, and in light of the proceedings before
15 this Tribunal, you have a number of issues to contend with and you have
16 demonstrated this. And if you are helped in your work by associates, all
17 the better. As you know, I have handed down a decision which entitles you
18 to have associates that would be paid by the Tribunal, on condition of
19 course that you are unable to pay them. Given that you're indigent, and
20 this is what you have told us at great lengths, you provided us or
21 provided the Registry with all the necessary information, and it was for
22 the Registry if they wanted to ascertain this that it needed to do what
23 was necessary to check this out. At the last Status Conference I did
24 address this issue without belabouring it, and I did say that as part of
25 the cooperation with your country the Registry could turn to the tax
1 authorities to ask what your situation is from a tax standpoint. And if
2 we were then to get a letter from the appropriate ministry, the Registry
3 could then conclude that you are indigent and that therefore all the costs
4 should be borne by the Registry by what is called here legal aid.
5 Now, as a matter of principle, I have no comment to make about
6 this. You have told us that you have done all that is needed. The
7 Registry has told me that they did turn to the tax authorities in
8 question, and they have every reason to believe that as soon as the tax
9 administration of your country responds to their letter, they will be able
10 to see whether you are indigent or not. But that is not what the issue is
11 about. The issue pertains to your associates who are prepared to help you
12 and whether they are going to come here or not. One of your three
13 associates is a lawyer, and I state this once again because we are holding
14 this hearing in open session like we did before. But it is important for
15 everyone to be aware of the fact, to be aware of this.
16 Why is the Registry keen on ascertaining that among your
17 associates one of them is a lawyer? It's not somebody who would be
18 wearing a robe and who would be speaking on your behalf? No. It's
19 because this person is a fully-fledged lawyer and is -- will be given a
20 salary due to his status. He will be -- this is a way of justifying his
21 salary and that the money will not be used for anything else. This is why
22 the Registry is requiring this information because they have to control
23 their funds, and they don't want to be caught and having spent taxpayers'
24 money and international taxpayers' money inadvertently. As you know
25 taxpayers' money when it comes to' international civil servants is
1 discussed at the UN Security Council who provide funding.
2 This is a reason why the Registry is asking you to state that one
3 of your associates - it can be any one of the three - is a fully-fledged
4 lawyer. So it's for you to turn around and say: He is a lawyer. This is
5 something I've told you before. Even if you've given us the names of 25
6 people who are preparing your defence, these names are listed on the
7 documents which have been officially filed. Only one of these 25 needs to
8 be a lawyer. You just say X, Y, Z is a lawyer, but you must tell this to
9 the Registry, and then I believe that the issue would be settled once and
10 for all.
11 The Trial Chamber has done all it could. I have done all I can to
12 find a solution to this problem, and it would be a shame for you,
13 Mr. Seselj, if for a question of principle which may be justified, that
14 you can't tell us that among those associates, whether it be 25 or 30 of
15 them, that one of them is a fully-fledged lawyer.
16 Mr. Seselj, you have the floor.
17 THE ACCUSED: [Interpretation] Judge, not a single man who is
18 representing himself has to have a lawyer to help him. And as a condition
19 for someone to represent oneself, the only requirement everywhere in the
20 world is to be literate, to read and write, that is considered to be
21 qualification enough, together with a modicum of intelligence. A person
22 has to be moderately reasonable. That's enough. When you have to decide
23 whether I can represent myself, you also have to decide whether I'm
24 bearing any costs or not. Costs are proven by material evidence. You
25 know that other persons have written quite a lot on my behalf. You know
1 that I have made 337 submissions so far. I wrote perhaps a hundred
2 myself, but over 200 were written by other people. Sometimes there are
3 huge studies in which an enormous amount of work was invested, that hasn't
4 been paid to date. I don't know how long my associates are going to
5 continue to work on credit in the hope that one day they will be paid.
6 In future, there will be proof provided of their work.
7 Second, whether they are going to be present in the courtroom or
8 not, they will be present if they are paid for being here, helping me.
9 All my three associates are members of the Serbian parliament, MPs; in
10 order to come here, they would have to resign on their jobs as MPs and
11 they would have to renounce their salaries. And they have to provide
12 upkeep for their families. So that's complicated. Very tendentiously,
13 the Registry is pushing me to have a lawyer in my team. I have several
14 lawyers on my team, but I didn't engage a single one of them because they
15 had a degree in law. I engaged them because they were trusted men and
16 good legal men, whether or not they passed the bar exam. You know from
17 all my submissions that my main legal associate is Zoran Krasic. I don't
18 want to degrade or humiliate Zoran Krasic, who made the greatest
19 contribution to my defence, and appoint someone else who contributed less
20 just because the other person is a lawyer. I don't want to accept that
21 and I don't want to accept such blackmail on the part of the Registry.
22 I didn't have to have a single lawyer on my team. I could easily
23 very soon exclude all lawyers from my team, just because the Registry is
24 behaving this way, and then even formally I wouldn't have any lawyers. My
25 defence consists of good legal men who are willing to follow my
1 instructions and they do so in good conscience, very well, very
2 efficiently, and they are investing a great deal of work. Each of them
3 could have by now gained a Ph.D. if they had worked on their thesis
4 instead of helping me. I can work practically alone, that problem does
5 not exist for me. You know, those who are representing the Office of the
6 Prosecutor here are not a threat, they are not my equals, not in their
7 knowledge of facts, not in their knowledge of basic legal categories.
8 They are simply not up to me. I will have as many assistants as I need to
9 do the work meticulously, to deal with a huge amount of material, or I
10 won't have any. If that is not made possible, I can do it on my own.
11 It was important for me, as important as my life itself, to
12 represent myself, but I'm not going to fight for funds from the Registry.
13 Please don't believe that theory. If the Registry won't give me a penny
14 for my Defence, I'm going to represent myself on my own.
15 JUDGE ANTONETTI: [Interpretation] What you have just said I knew
16 already, but it's important that my colleagues hear this. Now, you have
17 three associates. When decision on the funding of one of them has to be
18 taken, I mentioned an associate. I didn't talk about a lawyer or a legal
19 officer. I just talked about an associate and the Bench need not look
20 into the qualities of these associates. These are three associates,
21 because I have read everything written by Zoran Krasic so far, and
22 therefore there's nothing more to be said on that score.
23 You have told me, and you're telling me again, and the Bench may
24 perhaps discuss it at a later stage, if your associates come here to help
25 you this will directly impact their situation because if they are MPs they
1 are remunerated as such, and if they come here they quite obviously will
2 not be able to be MPs in Belgrade and defend you here. They would then
3 have to resign of course, and if they resign they need to be paid somehow.
4 They can't just live on hot air. And if they're to be paid, this has to
5 be taken into account when a decision a taken. There is no disagreement
6 on this point between you and the Trial Chamber, it's just a matter of
7 assessing the costs and making sure they're right.
8 The only stumbling block, and that is perhaps something which has
9 not been sufficiently highlighted, is the following. You told me that for
10 psychological reasons, it's Mr. Zoran Krasic who will be your lead
11 counsel, and you don't see why you should appoint anyone else who would
12 act as a lawyer. This I understand full well, and I don't disagree with
13 you as far as this psychological aspect is concerned. But you have said,
14 I will appoint this lawyer, but in fact the three people helping you have
15 already been appointed since you have already given us or given the names
16 to the Registry. So everybody knows who these three people are. So
17 there's no need to appoint anybody anymore since these people are your
18 associates already.
19 So this part of the question has been settled. The only
20 outstanding item which remains to be settled is that the Registry is
21 asking you that one of these people is a lawyer, and this is to comply
22 with the UN rules. And if the person in question - let's assume of
23 course -- this is a hypothetical situation of course, please understand
24 me, let's assume that somebody is being paid and he does something else,
25 he goes on the beach and doesn't do his work, which could be a problem
1 because he's being given money and that could not be substantiated from a
2 legal point of view. Therefore, the Registry needs to be able to explain
3 that the money paid has been paid out as it should and that the Registry
4 is able to monitor this. So now, if we are talking about your three
5 associates, if one of the associates is a fully-fledged lawyer, then
6 according to the code of ethics, would ask the other two to comply with
7 the rules; namely, that one is paid for services rendered and not paid for
9 And that is the only thing that is important here, and this can be
10 settled very easily, in a split second. You send a document which would
11 read as follows: Registrar, pursuant to the decision handed down by the
12 Trial Chamber, I would like to indicate that Mr. X, who is one of my three
13 associates, is a lawyer in Belgrade. Full stop, that's it. And as far as
14 I'm concerned, that suffices. That doesn't mean that on your team this
15 person is considered to be a lawyer. All the Registry needs is for this
16 person in Belgrade to be a lawyer. He won't be a lawyer whose name will
17 figure on the list of Defence counsel of the Tribunal. He just needs to
18 be a lawyer -- he can be a lawyer in Canberra, in New York, in Belgrade, I
19 don't mind. So you have just about reached the end of a long road, the
20 road has been long for you but it has been long for me too. It hasn't
21 been easy to hand down this decision. Therefore, if you write this short
22 paragraph and you state X is a lawyer in Belgrade, this means that the
23 Registry could then pay the case manager, your three associates, and then
24 the ball can start rolling.
25 So, Mr. Seselj, you have the floor.
1 THE ACCUSED: [Interpretation] Well, you enabled me to get to the
2 end of the road by shortening the road considerably. I was somewhere at
3 the beginning of that road. You removed a very long stretch, many
4 kilometres, now I'm at the end of the road. I was trying to put a little
5 humour into this, I hope it's not appropriate [as interpreted]. Judge, in
6 2003, I provided information about Slavko Jerkovic and the certificate
7 that he's a lawyer, just as I did for another legal associate that I
8 rejected later for many reasons, I don't want to repeat the reasons. And
9 then in December I provided the information for all three legal
10 associates, and their entire CVs, evidence that one of them is a lawyer,
11 the other one is a lawyer, and the third one is a lawyer together with
12 their career. The Registry is informed of all that. I just don't want to
13 appoint any one of them as lead counsel.
14 The Registry can deal with the problem very easily. All three of
15 them can have equal salaries. I don't want one of them to receive the
16 entire amount and pay the other two. I want each one of them to receive a
17 salary for their own work. If anybody sees them on the beach, I will be
18 the first to ask that person to be stricken off my list because I am very
19 well known for the way I push people who work for me and with me, because
20 I myself invest a lot of effort and work very hard and everybody else who
21 works with me has to follow. If all the three of them have the same
22 salary, the problem is dealt with. Don't tell me that one of them,
23 because he is a lawyer, has to have a higher salary, even double than the
24 others, just like you have a huge difference between lead counsel and
25 co-counsel, the lead counsel has 40.000 euros and the co-counsel 20.000.
1 I don't want the Registry to do this, bargaining and dividing among my
2 associates. All of them must have equal salaries and I will be the first
3 one to strike off anyone who doesn't follow my instructions and who
4 doesn't work hard for their money.
5 The Registry should not be doing all this, complicating things
6 unnecessarily. I don't know if you saw their six-page letter in which
7 they impose impossible conditions. Why did an authorised person,
8 authorised by me, visit Macedonia three years ago to investigate one
9 member of the Registry and her travelling? There's a stamp -- there's a
10 stamp as a result of the Macedonian immigration --
11 JUDGE ANTONETTI: [Interpretation] [Previous translation
12 continues] ... which there is in a dialogue is that in dialogue you are
13 bound to make progress. You've just said two important things. The first
14 important thing is this. You said this - I didn't check - but you said
15 back in 2003 you sent a letter to the Registry, stating that among your
16 associates there was some who were already lawyers, and you even specified
17 that Mr. Jerkovic had been pointed out by you to them as a lawyer because
18 that is the word you filed in his CV, so that is one important thing you
19 said. The other important thing which was very obvious to me, and I
20 thought it was settled, is that among the three associates I never thought
21 of treating one more favourably than the others. The way I saw this is
22 that they had to be paid equally. There's not one in the three people who
23 is the lead associate, as it were, whilst the other two would be the
24 co-associates. And in my mind they would be paid in the same way. Since
25 you are the one in charge, you are the one controlling the associates,
1 since you are the one who recruits them, you can fire them the next day if
2 you so wish. So based on that, you are entitled to say: I want them to
3 be paid equally, as you would have been entitled to say that one has to be
4 paid better than the other one for a specific reason. That was your
5 absolute right.
6 Unfortunately, when the decision was handed down, this was not
7 written into the decision because there was no formal application on your
8 part to request that these people should be paid in the same way. If you
9 had filed a request to the purpose, well, of course I would have gone
10 along with you. So please know in my name - but I believe my colleagues
11 are of the same view, if they're not they can say so - but as far as I'm
12 concerned there is no reason for one of them to be better paid than the
13 others because you are the one who chose your associates because of their
14 skills, their knowledge, and if you decide that they should be paid in the
15 same way, a certain amount then will be granted by the Registry as part of
16 their authority, there's no problem. So we have nearly settled this
17 issue, and this dialogue that we have now initiated makes it possible to
18 better understand what is at hand. The Judges will have an opportunity to
19 discuss this issue, and probably based on what you said we'll convey our
20 position to the Registry.
21 So here again, I think that we can really make headway in giant
23 Last issue before we address the other items, we may not be able
24 to finish before the break but let me start with this, namely the issue of
25 disclosure pursuant to Rule 68(i). You may know this, but you may not,
1 because it was not translated yet. A few days ago I issued a decision on
2 disclosure of material further to Rule 68(i). In the said decision I
3 reminded that the Prosecution is under the legal obligation to disclose to
4 the accused material within the scope of this Rule. And I recalled in the
5 decision I issued a few days ago that there are these famous 207.000
6 pages, but in fact there are much less than that because the Prosecutor
7 told us - but I stand to be corrected by Ms. Dahl - in fact we're talking
8 about 17.892, this is from memory, I may be wrong - if I am, you will
9 correct me, Ms. Dahl. But even if there are only 17.892 pages, they
10 cannot all be disclosed overnight.
11 In this decision, I think I managed to identify the problem. Let
12 me set it out. My colleagues have already received the report, but I wish
13 to state this again. Back then - but of course Madam Dahl, Ms. Dahl is in
14 no way responsible, she came in later so she was not responsible for
15 that - but back then the initial Trial Chamber had appointed a stand-by
16 counsel, Mr. Van der Spoel. What would the OTP generally do, not as far
17 as you're concerned, but generally so, the OTP will disclose to the
18 appointed counsel in the format of CD-ROMs, they will disclose relevant
19 material, including those pursuant to Rule 68. I'm not talking now about
20 the (i) or the (ii), I'll do that later. And what happened? The material
21 was disclosed to that lawyer, but at the same time the Prosecution also
22 sent you to your cell the CD-ROMs as well as DVDs. You for your part, you
23 wrote that you would not accept the documents, that material, in
24 electronic format. And you sent them all back. So that's as things
25 stand. Those were the facts.
1 The Judges amended Rule 68 in December 2004 -- sorry, on the 12th
2 of December, 2003, and then it was amended again on the 28th of July,
3 2004. I was there, so I can testify to that. I was then there at the
4 plenary session amending the rule by making a distinction under Rule 68,
5 under -- between (i) where the Prosecutor will disclose to the Defence
6 everything that is such as to exonerate in part or in -- mitigate the
7 guilt of the accused or affect the credibility of the Prosecution
8 evidence. That's the little (i). Therefore, the Prosecutor had to
9 implement this. They had to do so knowing that you would have turned down
10 your lawyer and that you were basically representing yourself. But this
11 escaped everybody. I mean, nobody noticed that.
12 The Prosecution deemed, rightly or wrongly, I won't go into that,
13 deemed that they had been used to disclosing to Defence counsel
14 exculpatory material in electronic format; therefore, they went on doing
15 the same thing, fully complying with their legal obligations. But the
16 situation was quite different. You know, when you have a lawyer, no
17 problem whatsoever, but the problem here was that you, you did not want to
18 have counsel; and secondly, and so you wrote, you wanted the documents in
19 hard copy and also translated into B/C/S.
20 When I saw you after the hunger strike and when I was appointed
21 Pre-Trial Judge, I addressed this issue in front of you. I said that I
22 was going to issue a decision ordering the Prosecution to provide to you
23 in hard copy and also translated into B/C/S all this material, because you
24 were right in demanding that they be provided in that format. Because you
25 do not want to use English, you are perfectly entitled not to want to use
1 English, and you wanted documents in your own language. And moreover, you
2 wanted to have them in hard copy, which is fine by me. So the Defence
3 therefore -- you said so, and I issued a decision in this respect.
4 Then we had Ms. Dahl who took over the case, and she said that she
5 fully agreed. Only she said that she was facing a huge problem, which is
6 that there was a huge amount of documents and she said she was willing to
7 do it, but given that the huge amount of documents she couldn't catch up
8 with the back-log overnight and she was asking whether you could provide
9 her with key words. If she had key words she said she could search the
10 207.000 pages to try and find anything that could be relevant to you. And
11 as part of the search, she disclosed some documents to you.
12 The decision I issued just a few days ago is a reminder of the
13 whole disposition and recalls that in law you are entitled to have in your
14 own language and in hard copy the material pursuant to Rule 68(i) without
15 any problem whatsoever. I also recalled that in order to speed up the
16 process of disclosure, which is going to be time-consuming due to the huge
17 amount of documents, that of course the Prosecution if they fail to do so
18 they will be punished, as it were, but they have to go on with the
19 disclosure, not everything has to be done within one day, it's spread over
20 time and there is no other way to do it, but the Prosecution maybe start
21 based on some key words that you might introduce, you may have some
22 thoughts about this, you could tell the Prosecution, you could tell
23 Ms. Dahl, please can you do this search for exculpatory material for the
24 following key words and they will do the search for you. So this is the
25 system that was generally adopted.
1 I know from reading the press like everybody, and I read
2 everything that is written in Belgrade, some say that you don't -- do not
3 have the exculpatory material. In a way, that is true, you don't have
4 them all, yes, indeed. And the Prosecution has to disclose that to you.
5 There is no doubt about this, but you must understand that Ms. Dahl is
6 unable to scan 2.000, 7.000 documents overnight and find which of them are
7 exculpatory material. My fellow Judges and myself, we have absolutely no
8 part to play in this respect. We cannot say whether a document is
9 exculpatory or not. Whatever you may think of these proceedings, the
10 procedure of disclosure of material is not controlled by the Judges as to
11 the merits of the document. The Judges - and I can tell you this - the
12 Judges do not want to get involved in the disclosure of material.
13 Therefore, it really is up for the goodwill of the Prosecution. They are
14 the ones deciding whether documents are exculpatory or not. This is a
15 right they have under the Rules. We as Judges are not allowed to
16 interfere as per the Rules. So this is basically the situation in this
18 Therefore, the trial is about to start and you still do not have
19 all the exculpatory material, potentially exculpatory material. This is
20 true. I don't deny this. Nobody can deny this. However, this is only
21 the result of a series of poor functioning, and it is only a practical
22 solution. Ms. Dahl and her associates will keep searching for the
23 exculpatory material and yourself -- of course it's not up to you to do
24 the job normally speaking, but maybe it's a good idea. You could use key
25 words and you could guide, you could steer, the Prosecution in their
2 Look, Mr. Seselj, let us assume that you have 207.000 pages
3 tomorrow and somebody is asking you to look for exculpatory material, you
4 could say, Well, I need some time, that's the reality, that's the truth of
5 the matter. You must understand that, and you understand that perfectly
6 well. In this decision I issued recently, I ordered in writing that some
7 3.000 documents be disclosed, they have been identified through the key
8 words provided at the Status Conference of the 4th of July. So that has
9 to be disclosed to you, but if I take out 3.000 out of the 17.892 pages,
10 there still are a number of documents that have not been listed and have
11 not been disclosed. It's time-consuming and this work will carry on
12 through the combined efforts of the Prosecution that goes on with it, and
13 so far there's nothing to make me believe that the Prosecution did not do
14 their work, but it's also through our own efforts because it's a shame to
15 have you participate in this stage of the proceedings whilst the onus is
16 on the Prosecutor. But this is a solution that is helping you for your
18 So I've said it all. We know the case. We know the ins and outs.
19 You had disclosed this to me. I was totally unaware of this. I remember
20 you got on your feet in a Status Conference and showed me a document in
21 which mention was made of 207.000 pages. So you were the one who revealed
22 this to me. I didn't know that at all, not at all. So this is how things
23 stand. You may have other ideas; if so, spell them out.
24 Last time, if I remember well, you told me the Prosecution has to
25 be punished, but how can I punish Ms. Dahl? She did all that needed to be
1 done so far and she is not responsible for anything. It's not her fault.
2 As I said, it's just a series of bad moments in the proceedings that
3 resulted in this situation. You have the floor, Mr. Seselj, because this
4 is a relevant facet of your rights as an accused. You've expressed
5 yourself at length, but now that I have my fellow Judges with me I'd like
6 them to hear you as well on this matter.
7 THE ACCUSED: [Interpretation] Ms. Christine Dahl is very guilty of
8 some things, but I will talk about that in a different context later if
9 you allow me to. Now I'm going to restrict myself only to the question
10 that you put. The database of the OTP contains several million pages of
11 text. The predecessor of Ms. Dahl, Hildegard Uertz-Retzlaff, who was
12 Prosecutor on this case, had certain criteria according to which she
13 singled out 207.000 pages from this enormous database of material that is
14 potentially exculpatory. It was identified, it's not some database
15 through which one has to search now. This is material that was identified
16 as potentially exculpatory that has to be submitted to me in its entirety,
17 and then I have to search through it and see what I may find useful and
18 what I may not find useful. That is the core of the matter.
19 Judge, I'm addressing you and your colleagues now, they are trying
20 to portray this to you now, the OTP, that this is some kind of a
21 fundamental database which is supposed to be explored now and then reduced
22 to 17.200. 207.000 pages have already been identified and it's a terrible
23 mistake that they informed the then-Trial Chamber and me that that is what
24 they identified then. I didn't know about that before they informed me in
25 writing. They gave me in writing that they had identified 207.000 pages
1 of exculpatory material, and I'm clinging to that now. And I keep waving
2 that piece of paper in my hands. For me, this is irrefutable evidence.
3 How they are going to get out of this problem because the Prosecution
4 didn't do anything for five years, let them think about that themselves.
5 I am asking for everything. I am asking for 207.000 pages because
6 Ms. Dahl's predecessor identified that already. I have the right to that.
7 I also highlighted another matter. You know that in a few
8 judgements of the Appeals Chamber it is pointed out that the Prosecutor ex
9 officio is a servant of international justice. It is their duty to
10 prosecute and to reveal exculpatory evidence. I can quote, I can cite,
11 from these judgements next time if you want, I have all of that. The
12 Prosecutor has to show you, as the Trial Chamber, that they invested in
13 terms of discharging this important duty the same effort that they
14 invested in my prosecution. They did not prove that until now at all. We
15 can see that in this domain the Prosecution practically did nothing. And
16 the trial begins tomorrow, tomorrow. This enormous work has not been done
17 yet, so what is the consequence? There is no fair trial; without that, it
18 is impossible to have a fair trial. You can analyse other cases, the
19 simple ones and the more or less complicated ones. How much potentially
20 exculpatory material was disclosed in these cases? In some cases it was
21 several hundred thousand pages. I can give you the actual cases
22 concerned. My case is the most complicated one. I am the most terrible
23 war criminal because my alleged war crimes span three present-day states.
24 You do not have any case that resembles that, the most difficult one of
25 all --
1 JUDGE ANTONETTI: [Interpretation] [Previous translation
2 continues] ... You said something -- well, I don't have the figures, but
3 you say that you can tell us that in other cases, accused that you
4 probably know of course, since you meet them in the Detention Unit in
5 Scheveningen, that they had received exculpatory documents. And sometimes
6 you talk about several hundreds of thousands of pages. I don't know
7 anything at all. I don't know what's happening in another case, let's say
8 in the Blagojevic trial, I don't know how many documents there were; same
9 for the Milosevic trial, I don't know. But you, you might be able to tell
10 us because you were made aware of those trials in which allegedly the
11 accused received a certain number of documents, because one thing never
12 ceased amazing me when it came applying this rule. If there is a lot of
13 exculpatory material, it's hard to understand why the indictment remains,
14 because if you have exculpatory material or if it mitigates the guilt of
15 the accused nearly automatically, this is bound to have an impact on the
16 indictment against that accused. Well, this is a personal thought in this
17 respect, but you say that as far as you know there are cases where
18 thousands of thousands of pages have been disclosed to the accused, and
19 you say, I've just about got nothing. That's interesting. Could you go
20 into that?
21 THE ACCUSED: [Interpretation] Yes. The Milosevic case, the
22 Krajisnik case, the Martic case, and I think that in this case that you
23 are dealing with now, Mr. Antonetti, there is also an enormous quantity of
24 potentially exculpatory material involved. The six Bosnian Croats, that's
25 what I'm referring to. These are these complex cases involving enormous
1 quantities, but quite simply the Prosecution gave all of this on CD-ROMs,
2 on DVDs, et cetera, and in that way they rid themselves of this problem in
3 obligation. The problem is that in my case they have to do everything on
4 paper and they don't feel like investing money in that. In their June
5 submission that you received, the Prosecution said that they needed 75.000
6 euro to put all of that on paper. So these are the few cases that I was
7 referring to so you can check.
8 The core of the problem here is that they don't feel like putting
9 all of this on paper and they don't feel like having it translated into
10 the Serbian language, because in other cases the unfortunate lawyers had
11 to sign documents stating that they speak English, although many of them
12 do not, then they received material in English they did not read it and
13 trials went by. Mr. Milosevic made a mistake so already in the beginning
14 he started receiving documents in English. Of course he knew English a
15 lot better than me so he could allow himself to do that on the one hand.
16 Strategically speaking it was a bad mistake. So they continued to deliver
17 all these documents to him in English. That's the core of the problem.
18 In my case everything has to be on paper, everything has to be in the
19 Serbian language, so they have no way out of this situation.
20 JUDGE ANTONETTI: [Interpretation] Very well. Look, we have to
21 have a break. After the break, I'll give the floor to Ms. Dahl on the
22 Rule 68 issue. We're going to break for 20 minutes.
23 --- Recess taken at 3.45 p.m.
24 --- On resuming at 4.08 p.m.
25 JUDGE ANTONETTI: [Interpretation] So we have resumed our hearing.
1 Mrs. Dahl, as far as disclosure issues are concerned, you know as
2 well as I do what all this is about. What do you have to say about that?
3 MS. DAHL: First, Your Honour, if you think that the Prosecution
4 is in violation of our disclosure obligations, then I would like to know
5 the details of that. Several times during the Status Conferences over the
6 months you have indicated that I proceed at the risk of punishment or
7 sanction, and I want to know if you think we have done something that has
8 defaulted or prejudiced Mr. Seselj. I want to know the particulars
9 because I have acted in good faith and with due diligence at all times and
10 do not consider that we are in default of any of our obligations.
11 I want to indicate that there have been no series of bad moments
12 in this case. The case has been made more difficult by Mr. Seselj's
13 wilful blindness and his strategic and hollow objections to conforming to
14 the rules of practice before this Tribunal. We disagree with the
15 Presiding Judge's recapitulation of the Prosecution's undertakings to try
16 to redisclose - and I emphasise the word "redisclose" - to Mr. Seselj in
17 his capacity as a self-represented accused. I understand our obligation
18 under Rule 68(i) as defined by the decision of this past summer in June to
19 require disclosure in paper, in a language Mr. Seselj understands, of
20 material that falls within Rule 68(i), that is, material within the actual
21 knowledge of the Prosecutor which may suggest innocence or mitigate the
22 guilt of the accused or affect the credibility of Prosecution evidence.
23 We are not hunting for exculpatory evidence in the evidence collection,
24 looking for something that doesn't exist, looking for a needle in a
25 haystack. Looking for something that shows that Mr. Seselj is innocent,
1 when in fact we will prove that he is guilty, is a futile exercise.
2 The Prosecution's undertaking with regard to material that was
3 already disclosed to Mr. Seselj, that he refuses to use, extended to
4 key-word searches from material that he finds material to his -- the
5 preparation of his defence, relevant material, that is, Rule 68(ii). We
6 do not agree that those key words produce exculpatory evidence within the
7 meaning of Rule 68(i). We need to review material and appreciate its
8 relevance to the case; when that happens and we see that it may mitigate
9 his guilt or suggest his innocence, we promptly comply with the order that
10 redefined the Prosecution's disclosure obligations as an accommodation to
11 Mr. Seselj's status as a self-represented accused. This Chamber cannot
12 allow him to use that status to make the proceedings unfair or unfairly
13 delay it.
14 We have undertaken to consider the latest order regarding the
15 so-called 3.000 documents. I need to correct some information about what
16 those documents relate to. Those are documents narrowed from the
17 electronic evidence collection that are within the public portion of the
18 electronic disclosure system. Copies now reside in a case-specific folder
19 for Mr. Seselj. At this stage we are not in a position to implement the
20 Chamber's latest order. We have serious concerns about its legal and
21 factual basis. We have prepared and are now revising a disclosure report
22 concerning Rule 68, but we wish to look at that report in light of the new
24 While the order relates to 3.000 documents, this number represents
25 only the product of the first search items that are now on the EDS. It
1 has the potential, if the reasoning is extended to all of the other search
2 items, to apply to many, many more documents that may be relevant to
3 Mr. Seselj's preparations, but until we have reviewed them and identified
4 them as exculpatory under Rule 68(i), we are under, we consider, no
5 obligation to put them into the format that Mr. Seselj prefers. We're
6 looking at the significant resource implications of the order, not just
7 for this case but for the other cases that we have to staff in order to
8 translate documents for the ongoing trials. We may need to seek
9 certification of the decision in order to secure a ruling on the scope of
10 our obligation and its grounding. We also have undertaken the obligation
11 to review the privileged material or the confidential material in the
12 Prosecution's possession, and we are turning our attention first to that
13 so that we can determine whether it can be put on the EDS in its
14 confidential nature, for instance, material received from Rule 70
15 providers would not automatically go on to the EDS. There are protocols
16 to follow before we can disclose that.
17 Mr. Seselj proceeds from a false premise with regard to the
18 207.000 documents. Mr. Milosevic accepted electronic disclosure and the
19 material that produced that figure relates to material disclosed in the
20 Milosevic case. It does not represent a determination that it is
21 exculpatory or shows the innocence of Mr. Seselj; it represents material
22 that may be useful to him. And if the Chamber considers that we have done
23 something that has -- that we have done something that has prevented him
24 from preparing, I need that finding and the reasons behind it made now
25 because this trial must be fair and I will do my utmost to discharge the
1 obligations under the resources that this office has and the rules of
2 procedure that this Tribunal operates under. But if you make a wholesale
3 sea change in how things are done, then we need a reasonable opportunity
4 to make sure that Mr. Seselj has what he needs. I say he has already been
5 given what he needs and what the Rules require; he has elected not to use
6 it. That is the right of a self-represented person. They can refuse to
7 use the materials put in front of them, but what they cannot do is bend to
8 their own will and their own strategic objections how the Tribunal
10 JUDGE ANTONETTI: [Interpretation] Mrs. Dahl, you always surprise
11 me when you take the floor. Seemingly you have not read the decision
12 which the Bench handed down on the 5th of November, which is entitled as
13 follows, because before taking the floor you need to be well-informed.
14 Let me read you the title of this decision: Second decision as far as
15 obligations of the Prosecution are concerned, Rule 68(ii) of the Rules of
16 Procedure and Evidence. I shall read you part of this.
17 "Given that during the Status Conference on the 27th [as
18 interpreted] of October 2007 that the question of 207.000 pages that had
19 been disclosed electronically by the Prosecution on the 7th of September,
20 2007 [as interpreted], pursuant to Rule 68 of the Rules was not settled,
21 given that the accused asked for these documents to be disclosed on
23 See at the 23rd of October Status Conference pages 1646, 1647. So
24 please listen carefully.
25 "Given that it is for the Prosecution and the Prosecution only to
1 determine on a case-by-case basis the material to be disclosed and for the
2 accused to have a fair trial. Please refer to Oric and Brdjanin decision.
3 "Considering that the only obligation which is that of the Trial
4 Chamber is to remind the Prosecution of its obligations to provide
5 exculpatory material and that it -- when it knows that the accused is
6 advised of this and to sanction" -- let me repeat. I was going too fast.
7 "Considering that the sole obligation which is that of the
8 Trial Chamber is to remind the Prosecution of its obligation and to order
9 the disclosure of documents that could mitigate the guilt of the accused
10 when is knows that the accused has knowledge of these documents and if
11 there is a failure to do this, to sanction this.
12 "Considering that, as far as this matter is concerned, the
13 Prosecution has stated during the last Status Conference, having
14 identified some 3.000 documents, thanks to the key words provided by the
15 accused on the 4th of July, 2007, Status Conference, given that these key
16 words had been identified by the accused when he had stated that the
17 207.000 documents could potentially be exculpatory.
18 "Considering that having conducted research and based on the key
19 words provided by the accused, the Prosecution is aware of the existence
20 of 3.000 documents, approximately, that could mitigate wholly or in part
21 the guilt of the accused or that could, in fact, affect the credibility of
22 Prosecution evidence.
23 "Considering that the decision of the 7th of June, these documents
24 need to be provided to the accused in hard copy and in a language he
25 understands as soon as possible for the foregoing reasons and pursuant to
1 Rule 68 of the Rules and the decision handed down on the 7th of June
2 orders that the Prosecution discloses, as soon as possible, on paper and
3 in a language that the accused understands, these 3.000 documents which
4 the Prosecution has identified thanks to the key words provided by the
6 This is what the Bench stated on the 5th of November, so don't
7 talk about sanctions. We haven't reached that stage yet.
8 MS. DAHL: Your Honour, it is apparent from the transcript and the
9 language in the decision that there is a misunderstanding about what we
10 consider those 3.000 documents to be. At the last Status Conference we
11 returned from break and you had put the question to me whether we had a
12 record of how many documents we had disclosed since the June order to the
13 accused under Rule 68(i). I told you the number of receipts, and I told
14 you approximately how many documents were covered by each receipt.
15 Unfortunately, we do not keep records of the total number of documents
16 under Rule 68(i) that we disclose. I failed to make clear at the Status
17 Conference when I switched subjects and then described what we had put on
18 to the electronic disclosure system, I regret not making clear that I was
19 switching subjects.
20 We do not consider the key words that Mr. Seselj provides and his
21 assertion that those topics yield exculpatory evidence mean that it is, in
22 fact, exculpatory evidence within our view. If he were to declare key
23 words, he could grind our ability to search on his behalf, as a courtesy
24 to his preparations, to a halt. He could decide to say that anything
25 Croatian is a key word for his defence, anything Muslim is a key word for
1 his defence. It is the obligation of the Defence to determine for himself
2 what he wishes to search on and how he wishes to prepare his defence. To
3 that end, we are, under the Rules, authorised to make available in
4 electronic format relevant collections of material. Just as with all of
5 the Defence counsel practicing before the Tribunal, I ensured that
6 Mr. Seselj has that same facility available to him.
7 And I went one further. I am prepared to give him a paper index
8 in a language he understands indicating the search results to allow him
9 easy access into the electronic collection. His associates could also
10 have an account, access, but the fact that he brands a particular word or
11 a combination of words as exculpatory does not bring it within the
12 confines of Rule 68(i), and I do not think that we can expand the
13 translation burden and the burden of production to the paper which
14 Mr. Seselj wants. What we are really talking about is who bears that
15 burden consequent on his refusal to make use of the tools that are
16 available to him. It's coming down to who will print the paper.
17 He is quite eager to have his associates help him when it suits
18 his purposes, and quite eager to shift the burden back to the Prosecution
19 knowing that it's untenable, just like he has tried to bring in thousands
20 of pages of text that represents his brand of bellicose nationalism as a
21 defence here. He is also trying a strategic objection to the production of
22 disclosure material. We will prepare our response to the order and look
23 at what it entails, but it must be kept in mind that those 3.000 documents
24 represent only the first instalment of search results that our information
25 support unit has conducted at my direction, and there will be a cascading
1 effect on this case and the work entailed by that order if it applies, as
2 it appears to, that we must now print and translate material that is
3 relevant to the preparation of his defence.
4 JUDGE ANTONETTI: [Interpretation] Let me get back to the key
5 words, Mrs. Dahl. At the Status Conference Mr. Seselj had said that he
6 was willing to help "the Prosecution to look up exculpatory material."
7 And he had quoted, for I remember, the group called White Wasps and White
8 Eagles -- Yellow Wasps and White Eagles and if you'd like to refer to
9 this, he had stated that people who had committed crimes had nothing to do
10 with him. So, quite rightly, he feels that all the documents that quote
11 the Yellow Wasps could be of interest to him which is, of course, a theory
12 he is presenting. These people had nothing to do with him so this is what
13 he was asking for. So by using the key words which he provided, I had
14 understood that the research had led to some 3.000 documents or so, I
15 don't know the details of all of this.
16 Second point, Mr. Seselj is defending himself and this right has
17 been granted to him by the Trial Chamber. I cannot in any way question
18 the accused's right to defend himself. Secondly, Mr. Seselj does not wish
19 to or does not speak English or French; those are languages he does not
20 speak. Therefore, he wishes to have all these documents in his own
21 language. Notwithstanding the case-law of this Tribunal, you just need to
22 turn to the jurisprudence of the European Court of Human Rights. In other
23 words, any accused or defendant should have all the documents in his own
25 Also, you are still saying that he should nonetheless resort to
1 electronic disclosure. Mr. Seselj has always said that he would refuse
2 any form of electronic disclosure. I stand to be corrected, but that was
3 one of the reasons why he went on a hunger strike which led to the Appeals
4 Chamber reviewing the whole case.
5 Therefore, Mr. Seselj says, I would like to have a hard copy
6 version of all the documents because I do not use a computer. This would
7 be unheard of, to impose on someone the use of a computer. Let us imagine
8 that Mr. Seselj can't either read or write, in that case the Prosecution
9 will turn around and say, Well, he needs to use a computer. There is
10 something askew here, as you can see. So the Trial Chamber's not going to
11 rule on any sanctions to be taken, and as I've told you, you are not held
12 responsible for this. I have reminded you, but perhaps you've found it
13 difficult to understand. Maybe I've spoken too fast. Initially the
14 problem was due to the fact that all these documents were sent in an
15 electronic form to his lawyer, and he had then refused all these
16 documents. That's where the problem stems from, and if we are -- whether
17 it be a British lawyer or an American lawyer, so be it, but if the
18 documents are being sent to someone who doesn't speak the language then we
19 have a problem. The documents, therefore, need to be sent to him in B/C/S
20 and in hard copy form.
21 Mr. Seselj, the Prosecution has taken the floor. You may have
22 something to say about this. Before moving on to another topic I shall
23 give you the floor again.
24 THE ACCUSED: [Interpretation] I'm glad that you as the
25 Trial Chamber are so tolerant towards Mrs. Christine Dahl as the
1 representative of the Office of the Prosecutor, even when she's using
2 insulting words like "hollow objections," "wilful blindness," et cetera.
3 I'm happy because I like this kind of tolerant situation more than some
4 other kind of situation where Ms. Dahl would strictly abide and -- by the
5 rules of decency, courtesy, and act courteous. I don't think it's a
6 hollow objection when they say the Prosecution is not hunting for
7 exculpatory evidence because they can prove that the accused is guilty.
8 It's a wrong understanding of the role of the Prosecutor. The role of the
9 Prosecutor is to look for the truth, to establish the truth, not to look
10 for an outcome where the Trial Chamber would find the accused guilty at
11 any cost. That's why they are prepared to use false witnesses.
12 They brought recently to The Hague my defence, my potential
13 defence witnesses, in order to intimidate them. That is an essential
14 misunderstanding of her function by herself. That is why she is incapable
15 of doing her job which facilities my defence considerably. I will much
16 more easily cope with this kind of Prosecutor than with somebody smart who
17 knows the law and who knows their role and who would act from that
18 understanding. Only a smart person in her place could be a threat to me;
19 she cannot be a threat to me.
20 Second, she identified --
21 MS. DAHL: [Previous translation continues] ... Your Honour. Your
23 THE ACCUSED: [Interpretation] -- 207.000 pages of exculpatory
24 material and the OTP --
25 JUDGE ANTONETTI: [Interpretation] Mrs. Dahl, you will have the
1 floor soon, but let Mr. Seselj finish and then you can reply. He didn't
2 interrupt you when you were on your feet. So as a matter of courtesy, let
3 him finish and then you can respond.
4 MS. DAHL: Your Honour, I want some ground rules set, please. I
5 do not think that his argument which is insulting to me is appropriate,
6 and that is why it needs to be stopped instead of being replied to.
7 JUDGE ANTONETTI: [Interpretation] Please resume, Mr. Seselj.
8 THE ACCUSED: [Interpretation] Well, I'm doing all of this out of
9 my wilful blindness that you established and because I'm only making
10 hollow objections, that's something you noted. Why -- what are you afraid
11 of then when I want to confirm my wilful blindness or the hollowness of my
12 objections. Then you jump up like a jack-in-the-box and complain that I'm
13 insulting you. No, I'm not insulting you. I'm only repeating what you
14 said at my expense.
15 207.000 pages were identified by the OTP as potential exculpatory
16 material and they signed it. I want all of it. Judge, you said something
17 before the break that was very interesting. If all that were really
18 exculpatory, the Prosecution could abandon all the charges against me. It
19 doesn't necessarily have to be exculpatory material. It is only on
20 certain criteria that the Prosecution thought it could be and it is up to
21 me to decide whether I can use it or not, whether it's potentially useful
22 or not. That is the obligation of the Prosecutor, and it's another
23 obligation of the Prosecutor to carefully and meticulously look for the
25 I, who am representing myself, have only one role here: To defend
1 myself successfully. But the role of the Prosecutor is completely
2 different. It is not their job to have me declared guilty at any cost.
3 The job of the Prosecutor is to find the truth, even if I am acquitted as
4 a result, because they should not consider it as a defeat if they find the
5 truth. It's a defeat for me if I'm found guilty, but to this day nobody
6 has appeared who could explain this for the Prosecutor. I would be happy
7 if I managed to edify her a little. She says that I introduced thousands
8 of pages of my nationalism into potential evidence. I have no other
9 purpose here. The only thing I want is to show that this nationalism
10 cannot be identified with the crimes. It didn't stimulate crimes, it is
11 not the cause of crimes, nor is it in any connection with those crimes
12 which were objectively perpetrated. That is my role here, and why would I
13 be ashamed of that role? As you said, Judge, as far as that exculpatory
14 material is concerned, it is not known in advance that it is exculpatory.
15 It has to be checked for its exculpatory value. But the Prosecution has
16 to make it available to me so that I can check it and so that you can
17 evaluate it.
18 The Prosecution has never tried to prove that the Prosecutor as an
19 officer of international justice invested equal effort into looking for
20 the truth and administering justice. The Prosecution has to show their
21 objectivity; I don't. I don't have to be objective at all. I am very,
22 very subjective, but they cannot have a role equal to mine. They have to
23 be impeccable in their objectiveness, and if they manage to prove my
24 guilt, fine. Now they say they are not obliged to hunt for the truth,
25 that's the interpretation I heard, they're not obliged to hunt. Are we in
1 some hunting story here if we are going to recount hunting stories and the
2 Prosecution is very inclined to that. You know what kind of stories they
3 are? The hunting stories in Serbian national tradition and I suppose in
4 your countries as well, hunting stories are false stories, lies,
5 bragging. And unfortunately all the stories told by this Prosecution here
6 are the same. I request, I demand, exculpatory material and I will
7 continue to do so until the end of this trial and I will continue to
8 demand these 207.000 pages.
9 As far as key words are concerned, I can give the key words to the
10 Prosecution only when I get those 207.000 pages, and then they can
11 continue to search using the key words. You see what else the Prosecution
12 is using here? They say if this material is about Yellow Wasps or about
13 the Guards Corps of the Serbian Renewal Movement of Vuk Draskovic, then
14 it's not necessarily exculpatory. It's not exculpatory because it's their
15 case that I'm responsible for the crimes of the guard, of the Yellow Wasps
16 of the White Eagles, the Arkan's men. They put it in the indictment that
17 I'm responsible for the crimes of all the Serbian forces because all the
18 Serbian forces are involved in the joint criminal enterprise. That is the
19 trouble of the Prosecution. They were not able to substantiate and
20 specify any charge they laid against me, that's why they set the context
21 so broadly that it's impossible.
22 They ascribe to me, in fact, all the crimes from the Serbian side.
23 I am prepared to answer for all of them, but then it has to be put in
24 writing. Why did they choose these few? They didn't they write in
25 everything? This ignorance of the international criminal law and the
1 basic legal categories prejudices me. They won't give me exculpatory
2 material. It is obvious from the conduct of Mrs. Dahl that they have no
3 intention of disclosing it. They want me to look for exculpatory material
4 myself, on my own. They want me to do their job. You have to prove that
5 your translators and your typists were engaged by you equally in
6 prosecuting me, in trying to prosecute me, and in trying to find
7 exculpatory material. You have to prove that, otherwise your whole
8 situation is untenable, your whole premise is untenable. You really are
9 acting as a hunter. You want to shoot someone down. Maybe you managed in
10 some other trials. In this trial, the hunted -- the hunter will become
11 the prey.
12 JUDGE ANTONETTI: [Interpretation] Mrs. Dahl, first of all, let us
13 try to remain calm and serene. Justice has to be done in utmost serenity.
14 Secondly, unfortunately for the Prosecution, there are documents showing
15 that the accused -- and unfortunately you were not present. I am saying
16 this once again. So the accused was informed that as part of the
17 exculpatory material there was -- there were 207.000 documents. That's
18 what he was told. I think that was a mistake made by the counsel for the
19 Prosecution before you. They didn't realise this and they should have
20 said that there was a mistake, that it was not 207.000 pages.
21 Unfortunately, Mr. Seselj at the last Status Conference and we
22 have a letter from the previous OTP representative, there was a letter
23 that was shown with 207.000 exculpatory pages. So rightly or wrongly -
24 the Trial Chamber is not here to make a determination as to the way he is
25 going to represent himself - he says, I want to have those documents.
1 That's what he says. So facing that I told you, but my fellow Judges
2 share my view, 207.000 documents, it is huge, it is colossal task, so how
3 are we going to handle it? We already have an answer. You do your level
5 Secondly, with the key words you disclose to him whatever you can
6 disclose to him. You keep disclosing the documents as they come up if you
7 think it is exculpatory material, and that's the way it's going to
8 proceed. Listening to you and whenever you speak, just as I listen to
9 you, just as I listen to Mr. Seselj, I try to understand, of course there
10 could be translation errors, interpretation errors, but I do try to
11 understand what you want to say. And my impression is that you say your
12 position is that you're going to disclose those 207.000 pages in
13 electronic format to Mr. Seselj, let him manage, let him find his way, and
14 then this is something you said you're willing to give him an index of the
15 documents to help him in his search even if he can give you further key
16 words for you to keep on searching. So that is your position. I don't
17 know whether you talked this out with Ms. Carla del Ponte, but we might
18 have her come over here so that she also can give us an explanation.
19 But the problem is that an accused was told that there was a
20 certain amount of exculpatory documents and he wants to have them in his
21 own language and he wants to have them in hard copy. That's it. That's
22 the extent of the problem. I'm not talking about sanction. You said what
23 sanction or punishment. No, I never said that. Why punish you or
24 sanction you whilst you've inherited this case, and you are in no way
25 responsible for things that were done before you were here. Since you've
1 taken over this case, you endeavour to do the best you can for him to get
2 these documents. So do not be trapped in any attitude. It may be wrong,
3 but I seem to understand that you want to remain within this no man's land
4 in which the accused would not be apprised of these documents, well,
5 that's your choice.
6 Last time I told you there was another solution, it might be a
7 complicated one. We're talking about 207.000 pages. You have interns.
8 Why not ask them to have them printed -- of course you have to check -- I
9 think that there may be another problem. Unfortunately, maybe some day
10 the Judges will understand this problem in a plenary meeting. There may
11 be in the 207.000 pages documents that are only in English that have not
12 been translated into B/C/S. Therefore, the accused wants them to be
13 translated into B/C/S, and that's another problem, isn't it? So that's
14 it. I mean, there -- there's a piling up of problems, in fact, and
15 problems are different in nature. The first one that is really -- cannot
16 be avoided is the issue of him having the documents in B/C/S, his
17 language, even if it is in electronic format, assuming that he agrees to
18 the electronic disclosure. But there is one thing that he's not going to
19 agree with is to have the documents in English, so that's another problem.
20 The second problem, but he's been saying so for years, he wants to have
21 them in hard copy because that's the way he works.
22 Ms. Dahl, do you have anything to add? I don't know. We are
23 trying to arrive at solutions, aren't we?
24 MS. DAHL: Yes, Your Honour, and I join you in that work. I do
25 not wish Mr. Seselj to remain in no man's land and it is not my intention
1 that he remain ignorant of these documents. I will reiterate they are
2 immediately available to him, but he is choosing not to make use of them.
3 His right of self-representation is not unlimited, and I will propose
4 another solution for your consideration. This solution I proposed also
5 with regard to the transcription project which I think warrants discussion
6 today. And this is that his right of self-representation must not be
7 allowed to unfairly delay the trial or impair its fairness over all. It
8 can be limited to a minor extent to require him to make access to
9 documents through the use of a qualified language assistant so that he can
10 read what is in English without undue delay. That is a solution I would
11 like the Chamber to consider as it looks at what the translation burdens
12 are consequent upon his election to represent himself and his insistence
13 on a particular language and format of disclosure.
14 JUDGE ANTONETTI: [Interpretation] Well, this solution you propose,
15 Ms. Dahl, indeed I believe that you realise that there is a problem.
16 Mr. Seselj, presently we're faced with the following situation.
17 You have CD-ROMs containing 207.000 pages, and we do not know at all - I
18 do not know at all, neither do my fellow Judges, what there is in those
19 pages. And the solution suggested might be the following. You would have
20 a "language assistant" who you would choose yourself, somebody who
21 understands English and B/C/S and really is under your orders, paid by the
22 Tribunal of course, and that person under your control and authority could
23 use the CD-ROMs, open them, use them on a screen, sees whether it's in
24 English or not, whether the translation is there or not, so that person
25 would do all that work, following which -- of course the outcome of that
1 work is conveyed to you because this is all under your supervision, and
2 this person would then identify the documents.
3 Let me take an example, haphazardly. Let's imagine that this
4 person electronically views the document and sees that there's one on
5 Vukovar, which is in the indictment, and this person says to you, I found
6 a document on Vukovar, an order or a report, UN report -- well, anything,
7 and he conveys that to you. You, you know your file, you know your case,
8 and you tell him, This is not interesting or, Yes, it is interesting. So
9 this is a document that might be relevant under Rule 68. The Prosecution
10 is then informed of the fact that you want that document, and this work
11 would continue throughout the proceedings and from dawn to dusk this
12 person works behind the screen, identifies pages, says that to you, and
13 upon your instructions that is linked with the key words, the Prosecution
14 would provide to you on hard copy and in B/C/S would provide the documents
15 to you. That's just a thought as expressed by the Prosecution personally.
16 It might be interesting as much as you would have somebody to
17 assist you, somebody who's remunerated by the Tribunal, but you can regard
18 that person as trustworthy because you would appoint them yourself and
19 that person would work on the documents, process them, and would ask you
20 what to do with them.
21 What do you think?
22 THE ACCUSED: [Interpretation] Previously, Judge, I would have to
23 deal with the question that you put concerning the other cases where there
24 was such a large amount of potentially exculpatory material in accordance
25 with Rule 68. I mentioned a few cases, and then considerably after that
1 Ms. Dahl said here, if you noticed, that these 207.000 pages of
2 potentially exculpatory material had already been disclosed to
3 Mr. Milosevic as potentially exculpatory material, but that it was a lot
4 easier there for the Office of the Prosecutor because Mr. Milosevic
5 received documents in electronic format and in the English language --
6 well, maybe they wanted to make their own work easier. So automatically
7 they transferred these 207.000 pages to me. With the exception of Kosovo,
8 the indictment against Mr. Milosevic and the indictment against me
9 coincide to a great degree. They wanted to make life easier for
10 themselves, and they got all messed up in their own irresponsibility and
11 their own incompetence. Now this is termed identified pages, 207.000 of
12 them at that. So I'm being asked to do the work of the Prosecutor. I am
13 searching for potentially exculpatory material all over the place and
14 there is quite a lot of that here already; however, I cannot do the work
15 of the OTP. They have to identify what in their view is potentially
16 exculpatory material and they have to submit that to me. Not have me do
17 that for them and then leave it to their good will as to whether they want
18 to translate something for me and put it on paper. I cannot accept that.
19 I would like to draw your attention to yet another thing.
20 Ms. Dahl towards the end of her remarks said that the right to
21 self-representation is not unlimited and cannot delay the trial. In
22 respect of transcripts from other trials. In addition to this problem of
23 potentially exculpatory material according to Rule 68(i), there is another
24 problem that's much bigger than that. And now we just see the tip of this
25 problem the way we would see the tip of the iceberg, namely, the fact that
1 the Prosecutor intends to bring into evidence an enormous quantity of
2 transcripts from other cases, testimonies of witnesses who are supposed to
3 appear here and that appeared in other trials, an enormous quantity, and
4 all of this is in English. They translated very little for me so far.
5 What they gave me over the past few days is negligible in respect of the
6 quantity of material that they are supposed to be dealing with.
7 They don't feel like translating this into Serbian and they say
8 that my right to self-representation cannot be unrestricted. They want me
9 to receive that in English or at least they want me to tolerate having the
10 Judges admit this into the court record and they want me to act
11 disinterested. You will see that there are problems that are much bigger
12 than the Rule 68 problems. The Prosecution is not trial-ready. The
13 Trial Chamber is ready, I am ready, but the Prosecution is not ready
14 because they have not met not a single one of their obligations. I cannot
15 do the work of the Prosecution. I already have too great a burden to
16 shoulder on my own.
17 They have resources that are far greater than mine and they have
18 to do that. Then you have to assess on the basis of my objections whether
19 they did do this in accordance with the rules or not.
20 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, I shall come back to
21 the second part regarding the testimony or transcripts that the
22 Prosecution would seek to tender into evidence, but you did not quite
23 answer this proposal. We all agree, it is up to the Prosecution to prove
24 and to disclose material under 68(i). Everybody agrees; there's no doubt
25 about this. The only problem is that the Prosecution is not in a position
1 to do that work for the various reasons I have already listed. However,
2 the Prosecution and the Judges do not want you to be harmed or prejudiced
3 because you are entitled to a fair trial, it is an absolute right, and on
4 the other hand there's also the principle of equality of arms. You must
5 be given the same possibilities as the Prosecution.
6 In addition to that, the Judges are Judges who could not as far as
7 I'm concerned, but I think that is true also for my fellow Judges, who
8 could not accept to be part of a farce, a mock trial, where there would be
9 a trial with no representation or no defence by the accused, where there
10 would be no possibility for the accused to enjoy the rights given to him
11 by the Rules and the Statute, that would be unacceptable to me. So taking
12 all these factors into account, taking into account the fact that I do not
13 want to have the feeling that you are disadvantaged, there is one
14 practical solution not envisaged by the Rules, but you are a unique case
15 in the history of this Tribunal since you are the first to defend
16 yourself. Milosevic was in another situation. You are very much the
17 first one, so since you are a unique case we have to find a unique
19 And one of the possible solutions - and I said that earlier on -
20 this is an obligation which the Prosecution has to discharge. However,
21 they cannot do it now. And on several occasions Ms. Dahl mentioned the
22 problem of resources. So one of the solutions would be for this -- this
23 man that you trust could process the electronic documents, tell you which
24 documents to identify, and you would then say whether you want that
25 document in your language and in hard copy or not. It's far from being an
1 ideal solution, I understand. But, you know, between nothing and
2 something, you may as well go for something that is practicable.
3 So this could be a way of making headway, you could choose that
4 person, a person you would totally trust that would do the work for you.
5 I would going to be day or night, but just about, they can meet with you
6 and see what can be done with specific documents. Ms. Dahl agrees that
7 the Registrar will find no problem, he will pay for this person, but it is
8 really up to you, your good will.
9 Mr. Seselj.
10 THE ACCUSED: [Interpretation] Judge, please don't expect me to
11 express such goodwill that I'm going to take over the work of the
12 Prosecutor. I don't have a person who I trust this way. I would have to
13 do it by myself and I cannot. The OTP has to do that. With the best of
14 intentions, I cannot meet this recommendation of yours because I don't
15 take it to be a request. I take it to be a recommendation.
16 JUDGE ANTONETTI: [Interpretation] Very well, I take due note of
17 your answer. There is another problem that you raised and I wanted to
18 raise myself. The Prosecution is bound to seek to tender transcripts of
19 testimony of some 49 witnesses, individuals who have testified in prior
20 cases and whose testimony amounts to, according to my figures, 245 days of
21 testimony. Mr. Seselj, just to give you an idea of what it represents, it
22 is now nearly 5.00 and we are close to 56 pages of record. By 7.00 there
23 will be 100 pages. In other words, one day of hearing represents 100
24 pages. 245 days, so you multiply that by a hundred, and this means that
25 you would have 24.500 pages in English for the time being, the transcript
1 is only in English, and that would be the transcript of those witnesses'
3 I understood that you said earlier on that testimony, the
4 transcript, would have to be in your own language as well because this
5 would be regarded as Prosecution evidence, so it has to be in your
6 language. That's an enormous problem, a colossal one. What are we going
7 to do? To have 24.500 pages of transcript translated into your own
8 language. That's quite a task, a daunting one, way beyond the capacity of
9 the Tribunal as things stand -- unless of course the Prosecution would
10 give up the transcripts, would not use them, and would make do with the
11 viva voce witnesses they have with the transcript when they appear.
12 So, Ms. Dahl, am I wrong in what I've just set out with regard to
13 the transcript issue?
14 MS. DAHL: Well, Your Honour, with respect, a little bit. The
15 transcript issue -- we would have to decide not to call the witnesses at
16 all. The Rules require disclosure of prior testimony under
17 Rule 66(A)(ii). The Appeals Chamber in the Blaskic case decided in
18 September of 2000 that when the Prosecution calls a witness for a second
19 time, then the prior testimony from the earlier case is a witness
20 statement that has to be disclosed as part of the pre-trial disclosure
21 package. It would be unfortunate if the transcription burden meant that
22 we couldn't present the case or had to do without critical evidence simply
23 because the witness has testified before.
24 So the problem is a little bit larger. We can't solve it by
25 shrinking the presentation of evidence; it really is a disclosure
1 obligation fashioned under the Rules to apprise the accused of the nature
2 of the Prosecution's case and present him with the relevant body of
3 material, that would be the witnesses' utterances of the crime that he's
4 reporting or the victimisation that he suffered or the events that he
5 observed. I can't, as a Prosecution, pick and choose which parts of that
6 body of evidence of his recollections uttered in court or during an
7 interview to leave out or to reduce the burden on the Defence, that's
8 really their task to decide how much of it, for instance, to cross-examine
9 somebody on it if they misrecall in their second appearance before the
10 Chamber a minute detail. The Defence may decide at that point to
11 challenge the witness's credibility, their ability to perceive events, if
12 they have some problem like that. So it's -- the scope of the problem is
13 not defined by what evidence we will tender per se, it's defined by the
14 fact that the witness has made a previous appearance in the Chamber and
15 because so many perpetrators contributed to the same unfortunate event as
16 each individual perpetrator is tried, sometimes witnesses make multiple
17 appearances here.
18 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, Mrs. Dahl has just
19 raised a real issue. She has no room to manoeuvre. I shall pick up on
20 what she said and supplement what she has said. Mr. Seselj, I don't know
21 whether you have the Rules in front of you. I know you know the Rules by
22 heart, so Rule 66 of the Rules states that the Prosecution is under the
23 obligation to disclose to the accused, pursuant to Rule 66(A)(i), copies
24 of all of the statements when the latter have been annexed to the
25 indictment when the indictment was confirmed. So that's no problem.
1 You've received that.
2 However, as far as (A)(ii) is concerned, this paragraph stipulates
3 that the Prosecution should also provide copies of the statements of all
4 the witnesses which the Prosecution intends to call to testify. So you
5 know as well as I do, the Prosecution has every intention of calling a
6 number of witnesses who have already testified in other cases, in the
7 Milosevic case amongst others, and the Prosecution, in compliance with
8 this rule and in compliance with case-law that stems from Kordic and
9 Blaskic, those two cases which I am about to sum up. In Kordic, the
10 Defence wanted to be provided with a statement provided in the Blaskic
11 case. This witness was a protected witness. The Trial Chamber in the
12 Blaskic case presided over by Judge Jorda at the time had decided that
13 what pertained to Rule 70 would not be disclosed to the Defence, but what
14 did not pertain to Rule 70 could be disclosed to the Defence. And this
15 decision was taken on the 24th of November, 1999, unless I'm mistaken.
16 Five days later, on the 29th of November, the Trial Chamber in
17 Kordic presided over by Judge May handed down a decision that stated that
18 in the Kordic case the accused needed to be -- needed to be provided with
19 the testimonies of the Blaskic case. This was then referred to the
20 Appeals Chamber, and based on the decision which Mrs. Dahl mentioned, the
21 Appeals Chamber recalled that pursuant to Rule 66 the statements need --
22 needed to be provided, or rather, testimonies heard during a case and that
23 needed to be disclosed to the accused in another case.
24 Based on this, Mrs. Dahl is telling us that, normally speaking,
25 she should disclose all of this to you, needs to communicate all of this
1 to you. Nonetheless, if a protected witness is coming, this has to be
2 notified 30 days before the witness's testimony. And then, as a rule, she
3 is under the obligation of disclosing this to you. So if we have 245 days
4 of testimony and 100 pages, that's 24.500 pages all in all, based on this.
5 As you know, the transcripts which you see on the screen before you are in
6 English. We could have had one part of the screen in French and one part
7 in B/C/S. Initially, according to what I was told, when the trial started
8 we had the transcripts in both languages, in both English and French, and
9 for some mysterious reason we did away with the transcripts in French,
10 which means we now only have the English transcripts. It's a shame at the
11 time we did not have the transcript in all three languages; then we
12 wouldn't have had a problem.
13 Now, these 24.500 pages are in English, and in your language you
14 have the audiotapes which are in a DVD form. This is how things stand,
15 Mr. Seselj. So it would be interesting for me and my colleagues, in light
16 of this problem, to know what your point of view is. You don't have to
17 tell us what your position is today because we have not officially been
18 seized of this issue yet. We have received no motion to that effect, but
19 this is something which might arise in the future. So it is important to
20 pre-empt this. This is why we have a Status Conference and this is why it
21 is a good idea to mention it now. I'm sure you have spent some time
22 thinking about this, but maybe Mrs. Dahl would like to add something.
23 MS. DAHL: Yes, Your Honour, this transcription issue arises with
24 regard to witnesses who are not protected by the late disclosure as well.
25 So it is to characterize it as pertaining to witnesses for whom there is a
1 delayed disclosure order, unfortunately makes the issue narrower than it
2 is in fact. We have proposed to solve the problem by ensuring that all of
3 the transcripts are disclosed sufficiently in advance of the witness's
4 appearance so that Mr. Seselj has them available to him in transcribed
5 form, but it's not only those who are the beneficiaries of a protective
7 JUDGE ANTONETTI: [Interpretation] Very well. So let's look at
8 this from a practical point of view without quoting any names. A witness
9 who will come to testify in December, let's say, I don't know whether this
10 witness has already testified in another case. If he has already
11 testified in another case, you will send Mr. Seselj the transcript of what
12 he has said in his testimony in the other case. Is that right?
13 MS. DAHL: Yes, Your Honour. Of course, you know, the optimal
14 view of disclosure of witness evidence is that it is completed before the
15 evidence commences at all so that the accused has a fulsome view of the
16 nature of the Prosecution case, but we intend to order the nature of our
17 witnesses so that people for whom there is a great transcript load, so to
18 speak, meaning that their duration of prior testimony is four or five days
19 or so, that they come at the end of the case so that we can get the
20 transcripts completed before their appearance, but we are unable to
21 complete all of the transcripts before the appearance of the first
22 witness. And in recognition of that, we propose to call when we commence
23 evidence in December an expert witness who's never testified before the
24 Tribunal at all, and so therefore his disclosure should be complete before
25 the commencement of the case.
1 [Trial Chamber confers]
2 JUDGE ANTONETTI: [Interpretation] Mrs. Dahl, therefore you have
3 just told me now that the first witness who is going to testify will be an
4 expert witness. The expert report has been provided, he has that report,
5 so that's not a problem. Who is this expert witness whom you intend to
7 MS. DAHL: We thought it would be appropriate to begin with
8 Dr. Oberschall, who will give us an overview of Mr. Seselj's propaganda
9 and describe the crisis mentality of his public rhetoric and that
10 contribution to the collective violence that engulfed the Balkans.
11 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, so we have a series
12 of items here. This is why it's so important to hold a
13 Pre-Trial Conference. First of all, we have one problem is how the prior
14 testimonies and transcripts should be provided to you, testimonies of
15 people who have testified in other cases, like in the Milosevic trial, for
16 instance, so you should be aware of these. Disclosure will be made, I
17 believe, either electronically or, if need be, you will have a hard copy
18 in English. But unfortunately, you will not have a hard copy in B/C/S.
19 You have the translation maybe, in certain cases that will be the case,
20 maybe not, I don't know. But in the event that the Prosecution would not
21 be able to translate some of the testimonies made in other trials, what
22 would your position be? This may require some time, therefore Mrs. Dahl
23 feels it would be better then to start in December. I'm mentioning this
24 to you today. This would be during the second week of the month of
25 December because the Bench is otherwise busy. We will meet again tomorrow
1 and the day after tomorrow. The first witness is Witness Oberschall, who
2 will come to testify on the 11th and 12th and 13th of December.
3 THE ACCUSED: [Interpretation] Judge, I have to be provided all the
4 transcripts of all the witnesses that the Prosecutor intends to call in
5 this case and the persons who testified in other cases previously. That
6 is based on current jurisdiction and also Rule 66(A)(ii). You did your
7 calculations right, and I continued it. You said 49 witnesses, there's
8 probably going to be more than that because the Prosecution did not bear
9 in mind here the delayed disclosure witnesses. There's 16 of them, I
10 think ten a month before the beginning of trial and six before the
11 beginning of their testimony, but that's a different problem altogether
12 and I'll refer to it later.
13 So your calculation was 245 days is 24.500 pages. Now, you are
14 looking for a possibility for me to receive all of this in DVD format and
15 to listen to that, 245 days is 1.000 hours. I'd need 125 days just to
16 listen to all of this. Now, you consult a psychiatrist and see whether
17 anyone can remain sane if they sit with headphones on for 125 days
18 listening to some kind of court proceedings. I don't think that anyone
19 could do that. I always boast of my express mental health whenever I can,
20 but even I could not take that. What can I do after 125 days like that?
21 Can I remember all that? Can I cross-examine on all that? I can be
22 prepared for cross-examination only if I read that and if I made my own
23 notes on the margins.
24 I'm going to show something to you now. My statement, statement
25 of the accused, on Thursday I looked at the indictment and the pre-trial
1 brief of the Prosecutor and I wrote on the margins everything that I'm
2 going to tell you on Thursday. I cannot work in any other way. I did not
3 write a speech. I'm just going to use this. I'm going to follow what
4 they wrote and I am going to crush them. I'm going to break them. That
5 is what I'm going to do. I have to prepare for cross-examination of
6 Prosecution witnesses in the same way; in order to prepare, I have to have
7 everything on paper. Now, you want me to have headphones on for 125 days
8 and to listen to all of that.
9 Really, if I were to agree to that, what would happen afterwards?
10 Afterwards, I should pretend to be ready to cross-examine them, after 125
11 days? I wouldn't remember anything that I had heard. Well, perhaps some
12 witty observations maybe. If I were to have this on paper, I would be
13 able to distinguish between the important and unimportant on the margins,
14 I would write down my own remarks, and then I would be ready to
15 cross-examine. Then I can compare what a particular witness said in one
16 case, what he said in another case, and what he said yet in a third case.
17 There are witnesses here who appeared in different trials. I have more to
18 say but if you're going to interrupt me well ...
19 JUDGE ANTONETTI: [Interpretation] I don't wish to interrupt you,
20 but just an additional comment I'd like to make. Let's take any case
21 before this Tribunal. We have an accused, we have a lead counsel and
22 another counsel, there are two lawyers and three or four assistants. So
23 in a standard -- on a standard defence team there are five people. I'm
24 not talking about you. So what do these people do? They share out the
25 workload. So you are alone. Nobody is challenging you that right. This
1 is why it's so important for you to have associates working with you
2 because, Mr. Seselj, if we reach the moment when your associates will be
3 here present in the courtroom or in Belgrade, this is a suggestion I'm
4 making, this is how they could work. Let's assume that a witness comes to
5 testify, let's assume that he has already testified in the Milosevic trial
6 and that there are five [as interpreted] pages of transcript, you of
7 course won't put on your headsets and listen to the 500 pages. But
8 members of your team could do this work and you would not need to do it,
9 and they could tell you that they have listened to the transcript, that
10 they have summarized it, and that the witness in question has said
11 so-and-so regarding particular issues. And they will let you know.
12 Then when it is time for you to cross-examine the witness, your
13 associates have done the preparatory work for you and you will come to
14 realise and this is something you will realise very soon, that you will
15 have an avalanche of documents, a great number of witnesses, swathes of
16 documents, and then more witnesses, and if you are alone you might be able
17 to face up to this in the beginning, but over time you will be overwhelmed
18 completely. Because -- this is from experience and I'm sure my fellow
19 Judges will say the same, every experienced Judge and sometimes when a
20 witness comes to testify there are five documents that are being adduced,
21 so you have to read all these documents beforehand, you check what this
22 witness has said in other cases, thus this represents a huge amount of
23 work. A witness can come on a Monday, another witness can come on a
24 Tuesday, and for both you have to read 50 documents each. So if you are
25 going to be on your own, how will you manage this? You know the case back
1 to front I'm sure, but at some point, in light of the great number of
2 documents, the transcripts, the Prosecutor will say, Witness X, this is
3 what he says on page 24.500 of his testimony.
4 So of course you are entitled to represent yourself. This is a
5 right that has been granted to you, and I'm definitely not challenging
6 that, but you will have to be helped because it will be very difficult for
7 you to deal with all of this on your own. It will be much more than
8 24.500 pages. It will be very difficult for you to handle all of that on
9 your own, given that, and Mrs. Dahl has told us and I believe, now I am
10 sincerely convinced, that these testimonies will be translated. Some will
11 be translated, and I am sure that Mrs. Dahl will speed up the translations
12 of these documents, which also represents a huge amount of work. That's
13 why the first witnesses that will come to testify will have translated
14 documents. This is why Witness Oberschall will be called first because
15 his report has been translated. Then we will have the three-week winter
16 recess and we'll resume again in January. So you will have another month
17 to prepare yourself. I know that you have been preparing yourself for
18 years, but you will then have an additional months. But you will reach a
19 time when you will be overwhelmed by all of this.
20 Now, as far as the Oberschall witness -- Witness Oberschall is
21 concerned, what do you have to say about him?
22 THE ACCUSED: [Interpretation] Do not doubt my energy. If I get
23 everything on paper and in the Serbian language, then it's my problem how
24 I'm going to prepare. If I do not prepare successfully enough, then it is
25 my problem only, yet again. However, it is for you as the Trial Chamber,
1 for you and your colleagues, that I receive this material on time and that
2 this material is on paper and in the Serbian language, nothing more than
3 that. If the OTP is not in a position to achieve that, then the question
4 arises what it was that the OTP did over these past five years, why did
5 they not start preparing this on time? They lost five years and now they
6 cannot catch up. There is just one solution for that, for them to give up
7 on such witnesses. They have to bear the consequences, not me.
8 I find it unacceptable to have a single witness appear here if I
9 did not receive his statement and all his testimony from all other cases,
10 because this would constitute a grave breach of the Rules of Procedure and
11 Evidence. If the Prosecution is not in a position to ensure all of that,
12 so much the better. It's only better for me if they cannot do that. Let
13 them give up on that witness. Let them reduce the number of 105 witnesses
14 to 50 witnesses or 40 witnesses, easier for them, easier for me. What
15 they want is to achieve a maximum result with the least bit of effort, and
16 then they want me to do their work. No way. The problem is far greater
17 than what you referred to here.
18 May I remind you that there is a large number of people who in
19 relation to my case were heard as potential suspects. So some of them
20 agreed to be witnesses, whereas others after these interviews refused.
21 The Prosecution is duty-bound to submit all these transcripts to me, too.
22 For one person they tried to give me a DVD yesterday, but I refused.
23 There's a large number of such people. They have transcripts in English,
24 and I do not have the transcripts in Serbian and I'd have to have these
25 transcripts because I'd have to know what these potential suspects talked
1 about with the investigators, not their statements. The statements they
2 have to give to me, of course, they have already provided some statements.
3 But what these persons said in the interviews that preceded the statement
4 because they were told that they were potential suspects, and according to
5 the rules of the OTP they were duty-bound to videotape this, to submit a
6 copy to this person, to have this person call a lawyer, and so on and so
7 forth. So the Prosecutor is facing some problems that cannot be solved.
8 The fact that the Office of the Prosecutor has a problem is
9 something that suits me as an accused person, and they should deal with
10 that without my help. Do not expect me to help the Prosecutor all the
11 time as if it were in my interest to have the Prosecutor succeed in their
12 intentions. No. My interest is to prove that they are incompetent,
13 unable of handling this, and so on and so forth. All of this has to be on
14 paper, all of it has to be in Serbian, and if you think that it is doable
15 for me to listen to thousands of tapes for hundreds of days, that is
16 impermissible. Nothing is known whether I am going to have some
17 assistance or whatever, all of that has not been solved. And also how
18 much can I give to such assistants. You know, so far, I gave assistants
19 only material that I had read previously and then I would suggest to them
20 the response should contain this, this, and that. Sometimes I'm
21 satisfied, sometimes I'm not satisfied. Sometimes, I'm not satisfied with
22 a motion that they prepare, and then I don't submit it.
23 Also as far as experts are concerned, I give them the main points,
24 what they should pay attention to and what is the thesis that they should
25 try to prove.
1 JUDGE ANTONETTI: [Interpretation] We now have to have a 20-minute
3 Mrs. Dahl, you can have the floor again later, but the good thing
4 about Mr. Seselj is every time he takes the floor it raises a new issue.
5 This time we are talking about witnesses that were suspects and who
6 were -- whose statements were filed, and we then had their statements. So
7 Mr. Seselj is saying that these suspect witnesses have made statements,
8 and I would like to have a recording or something from the interview
9 before the statement or while the statement was taken.
10 You have the floor.
11 MS. DAHL: Very briefly, I wanted to clarify the proposal
12 regarding the provision of transcripts in B/C/S. Mr. Seselj will have all
13 of them, he just won't have them before trial starts. He will have the
14 transcripts relating to an individual witness at least a month before the
15 witness appears, in B/C/S. He can have them today in he wants them in
16 English, but he doesn't so we don't torment him by continuing to try to
17 give them to him.
18 That being said, with the suspect interviews, in ensuring that we
19 have fully discharged our obligation, I want to also prepare transcripts
20 in B/C/S of suspect interviews. Right now there are a couple that are
21 available only in electronic digital format of the videotape that was
22 created during the questioning. I will tender what I have to him because
23 I believe it's his responsibility to decide whether or not to accept it;
24 not mine to choose not to offer it to him. So if he rejects it, that's
25 his choice, but it's incumbent on me to make the material available to
1 him. If he doesn't like the format, that's a choice he has to live with
2 the consequences. I will review the transcript to make sure if there's
3 something more I need to add after the break that I take that opportunity.
4 JUDGE ANTONETTI: [Interpretation] So we will now have a 20-minute
5 break and resume in 20 minutes' time.
6 --- Recess taken at 5.38 p.m.
7 --- On resuming at 5.57 p.m.
8 JUDGE ANTONETTI: [Interpretation] Very well. The hearing is
9 resumed. Let me greet the new OTP representative next to Ms. Dahl.
10 You have the floor, Ms. Dahl, if you want to say anything.
11 MS. DAHL: I think with regard to the suspect interviews, if we
12 have any material that qualifies as witness statements and certainly
13 somebody being interviewed with the rights of a suspect would have
14 information regarding the commission of a crime, we will make sure that if
15 that person appears as a witness his videotaped material will also be
16 reduced to writing and in B/C/S. Sometimes those videotapes are complex
17 to transcribe because you may have three languages going on at once, just
18 as we do today. So we will make sure that the parts that need to be
19 interpreted, are, and the parts that are already in the native language
20 are simply transcribed. But those will be disclosed before the witness
21 appears, but we are unable to complete transcribing all of the relevant
22 material before the commencement of trial.
23 JUDGE ANTONETTI: [Interpretation] Well, Mr. Seselj, Ms. Dahl has
24 provided us with some positive information. She guarantees that when a
25 witness comes to testify prior to their testimony you will have the
1 translation into B/C/S of what that witness might have said in another
2 trial. So that problem is settled.
3 Secondly, with regard to the issue of suspects Ms. Dahl has just
4 said that you are going to receive the translation of the interview of
5 that suspect with investigators or sometimes there are English-speaking
6 investigators, so the interview is in English but the suspect has an
7 interpreter. Everything will be translated into B/C/S, however, so no
8 problem there.
9 Last thing -- yes, Ms. Dahl --
10 MS. DAHL: I'm sorry, I just want to clarify the difference
11 between transcription and translation. If the witness has testified in
12 B/C/S, there's an audio of his live testimony. We don't do anything other
13 than transcribe that. If, for instance, an expert witness has testified,
14 we will translate that.
15 JUDGE ANTONETTI: [Interpretation] Thank you for the clarification.
16 Yes, Mr. Seselj.
17 THE ACCUSED: [Microphone not activated]
18 THE INTERPRETER: We cannot hear the witness.
19 JUDGE ANTONETTI: [Interpretation] Your microphone, please.
20 THE ACCUSED: [Interpretation] I'm sorry, the microphone wasn't on.
21 Judges, the problem has not been resolved. Mrs. Dahl said that if one of
22 the suspects appears as a witness, then I will get the transcription of
23 the interview with them, but I'm much more interested in the suspects who
24 are not going to appear as witnesses and there have been many of those
25 because that's potentially exculpatory material for me, it has to be made
1 available to me. Everything that has to do with the process that is
2 against me, the officials of the Serbian Radical Party, people linked to
3 the Serbian Radical Party, volunteers, all that is interesting to me, and
4 they have to deliver it. Then there are people who have been interviewed
5 in the status as suspects, and in their fear they accepted to be
6 Prosecution witnesses. However, when the mandate of the Tribunal was
7 limited and that -- when it was said that the last indictments will be
8 raised until 2007 or 2008, they gained some courage and refused. That is
9 potential exculpatory material for me. If you want to give me all
10 exculpatory material, then that includes all the interviews that the
11 Prosecution interviewed as potential Prosecution witnesses and as
12 suspects; without that material, I cannot defend myself.
13 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, you are again
14 raising two problems. There's the one about the suspects who are not in
15 the 65 ter list, and you decided not to call them. Mr. Seselj is telling
16 us that he wants to have the interviews because he's of the opinion,
17 rightly or wrongly, I don't know, that the interviews might be exculpatory
18 for him because it might be that the suspect sort of mitigated his guilt
19 and so he wants to know about that and that's what he's asking for. The
20 other category is that when you have continued with the investigation, you
21 heard other witnesses who were not witnesses at the time of the
22 indictment, but since the investigation continued and at the time the
23 Prosecution must have asked them to be -- them to be Prosecution
24 witnesses, which they turned down for some reason, and Mr. Seselj says
25 that he wants to know those witnesses because they might prove to be
1 witnesses that could sort of free him of his criminal liability. So what
2 is your stand on this?
3 MS. DAHL: Well, let me take the points in reverse order, and I
4 will tell you that I do not consider any witness to be a Prosecution
5 witness or a Defence witness; these are Tribunal witnesses and they are
6 called here by circumstance of history. I do not ask somebody's
7 permission to call them, it is their civic duty if they are witnesses to a
8 crime to bring the factual information that they possess that is relevant
9 to the charges before the Tribunal. So it is a misstatement to say that
10 there are a legion of former party members who have refused to be
11 Prosecution witnesses or that we have battered into submission; that is
12 simply Mr. Seselj's rhetorical flourish. The witnesses belong to the
13 Tribunal and to their own events of history.
14 With regard to suspect interviews conducted in the investigation,
15 I will inquire of our investigative staff and my lawyers to see if there
16 is someone other than those of whom I'm already aware, but I will not at
17 this point jeopardize any witness's protected status by disclosing whether
18 or not there are additional people that Mr. Seselj doesn't know about yet
19 who may have fallen into a suspect/witness category. But I take very
20 seriously the obligation to provide him with material he deems relevant
21 and will exercise due diligence and make the appropriate inquiries.
22 JUDGE ANTONETTI: [Interpretation] I share your view. I too
23 believe that they are witnesses of the truth of history, no problem there.
24 But you did not quite answer the following problem. We had an
25 indictment. Mr. Seselj had an initial appearance, he pleaded not guilty,
1 and there was the status -- the pre-trial stage. And during the state, I
2 suppose so, I don't know, but I suppose that the OTP carried on the
3 investigation and asked various individuals to come, to be heard, and to
4 give statements. So this Mr. X might have made a statement. After this,
5 the OTP reads the statement and says, no, no, it's not relevant, no
6 purpose to this, and it's not used by the OTP, therefore you sort of give
7 up on that witness. If I understand Mr. Seselj - if I'm wrong he'll
8 correct me on this - but he says that this type of witness is of interest
9 to him. He wants to know what those people said to the OTP because it
10 might be that they have exculpated me and so it might be a exculpatory
11 statement, so under 68(i), I have to know about this, this must be
12 disclosed to me. So this is what he says. And he wants to be apprised of
13 these statements that have been recorded of witnesses that you do not plan
14 to call but that you have on store in your archives, in your records. It
15 may be wrong, it may not be the case, I don't know. This is quite a
16 theoretical question, but he raises it. You may not know; I do not.
17 MS. DAHL: It's not theoretical at all. There's a prior
18 Trial Chamber decision that directed the OTP to provide him with any
19 witness statements mentioning his name, and we've gone to some length to
20 make sure he's had all of that, including seeking disclosure of material
21 that was otherwise protected by, for instance, a Rule 70 provider. So I
22 believe that has been done, so if someone has mentioned his name in
23 passing and replied with a negative: No, he's never been to Rome or, no,
24 I never saw him there, he has that.
25 JUDGE ANTONETTI: [Interpretation] Very well. So you're telling me
1 this hypothesis has already happened and you must have already disclosed
2 the documents to Mr. Seselj already.
3 There you go, Mr. Seselj.
4 THE ACCUSED: [Interpretation] That is not true, Judges. A little
5 bit of that material has been made available to me, but not the main part.
6 They tried to disclose some of it in electronic form, which I did not
7 accept. Since I have the floor, let me express my astonishment over the
8 ignorance of the procedure in this court that Ms. Dahl is displaying. She
9 says that all the witnesses appearing here are Tribunal witnesses, that is
10 simply not true. That is so in civil law, but here in common law that is
11 not true. What is the difference between Prosecution witnesses, Defence
12 witnesses, and Court witnesses? I'll give you just one. With Prosecution
13 witnesses, the Prosecution leads the examination-in-chief and I take the
14 cross-examination. The process and the procedure is quite different.
15 With Defence witnesses, it is the Prosecution that cross-examines. With
16 Court witnesses, both the Defence and the Prosecution cross-examine in a
17 way, and I have to take an educational role here. I have to edify her a
18 little, there is a considerable difference here between Defence witnesses,
19 Prosecution witnesses, and Court witnesses.
20 JUDGE ANTONETTI: [Interpretation] [Previous translation
21 continues] ... taking note of this, you are right, too, but you know when
22 a witness takes an oath, in doing so he becomes a witness of the Court, of
23 justice. Mr. Seselj, with regard to the appearance of Mr. Oberschall, do
24 you have anything to say?
25 THE ACCUSED: [Interpretation] I do not decide who is going to be
1 the first Prosecution witness. I am prepared for the cross-examination of
2 expert Oberschall, and in a few days I will submit to you my response to
3 his supplemental expert report. And it is quite possible that you will
4 soon receive the Defence expert report on the same issue by Mr. Dejan
5 Mirovic, MA.
6 JUDGE ANTONETTI: [Interpretation] Very well.
7 So now we come to the very purpose of this Pre-Trial Conference.
8 We have another 50 minutes left. Under the Rules, the Trial Chamber is to
9 determine the number of witnesses and the duration of the case. I'm
10 reading this for the transcript, Rule 73 bis, Pre-Trial Conference, the
11 Pre-Trial Conference is happening before the beginning of the trial. On
12 the basis of the report made by the Pre-Trial Judge further to Rule 65 ter
13 (L)(i), the Trial Chamber may call upon the Prosecution to shorten the
14 estimated length of the examination for some witnesses. In the light of
15 the files submitted to the Trial Chamber by the Pre-Trial Judge, pursuant
16 to Rule 65 ter (L)(i), after having heard the Prosecutor, the Trial
17 Chamber shall determine the number of witnesses to be called by the
18 Prosecutor and the time available to the Prosecutor for presenting
20 The Prosecution has provided us with a 65 ter list as well as with
21 the estimated duration. On the basis of all this, the Trial Chamber takes
22 into account that when we have the first witnesses, some time will be
23 devoted to the Prosecution case or to the examinations in chief, and also
24 to the Defence. Mr. Seselj will have the same amount of time for each
25 witness as does the Prosecution, but you have to add on to that the
1 questions by Judges. You must have understood already that I like asking
2 questions, so I shall not refrain from asking questions and I'm sure that
3 my fellow Judges will have questions themselves. And then every now and
4 then we have procedural issues. Best is when we have very few of them
5 because it's better to spend time on documents and witnesses rather than
6 on quibbling on procedural matters, but it can happen. So the issue
7 arising from all this is the estimated length of the Prosecution case.
8 I'm repeating this. Trial Chamber I presided over by Judge Orie, when the
9 trial started, had decided to set a time of 91 hours --
10 THE INTERPRETER: 81 hours, interpreter's correction.
11 JUDGE ANTONETTI: [Interpretation] Thereafter, there were new
12 factors that came into play and 81 hours does not seem to be the correct
13 figure. If I sum up the time estimated by the Prosecutor and if we
14 believe the OTP, we should all in all have 170 hours, so just about twice
15 as much as the amount decided upon by the Orie Trial Chamber.
16 I looked into each and every witness and I listed the estimates
17 from memory I seem to remember that there are insider witness, called
18 insider witnesses, that's first category of witnesses; and then the
19 so-called expert witnesses, for the time being ten of them are scheduled;
20 then we have witnesses for various localities, Vocin, Vukovar, Petkovci,
21 Zvornik, Bijeljina, Brcko, Bosanski Samac, Nevesinje, Mostar, and the
22 Greater Sarajevo, and one last witness added on the 29th of March, and we
23 do not have an information on that witness pursuant to Rule 65 ter. So
24 all in all, we should have 101 witnesses.
25 Ms. Dahl, apparently regarding Vukovar you have a lot of
1 witnesses, and it might be that you could cut it down. Regarding
2 municipalities, here too you could pare down significantly. So in sum,
3 provisionally of course, the Trial Chamber will issue a written decision
4 on this. We could think of 120 to 125 hours so that the Prosecution case
5 may be completed around July or early September because of the summer
6 recess. As to Mr. Seselj, he would start -- of course there can always be
7 the Rule 98 bis, but I have to surmise here, so if there is no 98 bis
8 application, he could start in September. And he would too have 120
9 hours, so September, October, November, January, February, so March,
10 April, roughly that's the schedule. The Trial Chamber will seek the
11 parties' opinions, but we have the case-law established by the Appeals
12 Chamber. As to the determination of the length, the Trial Chamber has
13 full discretionary powers of appreciation unless there is a discernible
14 error by the Chamber.
15 Recently the Appeals Chamber issued a decision in this respect,
16 also when a length is set of course anything can happen. For instance,
17 the Prosecution may decide to shorten. It can happen. Sometimes they are
18 over-optimistic and they may not be able to call all the witnesses they
19 planned to call, but there may also be situations in which the Prosecution
20 may need extra time. Then they can apply to have an extension of time.
21 Refer to what happened in the Milosevic case, the Prosecution had applied
22 for extended time. So there's always flexibility. There is a decision of
23 course that is issued by the Chamber, but it is a provisional one. The
24 trial starts, and depending on the situations there can be changes. And
25 what is good for the Prosecution is also good for the Defence because the
1 two scales of justice are evenly balanced.
2 Ms. Dahl, 120, 125 hours, what do you think?
3 MS. DAHL: Well, I'm very pleased to have the opportunity to begin
4 the trial and we will look at the number of witnesses and the relevance of
5 their testimony to determine how many we may not be able to call if it
6 turns out that I can't persuade you to give me more time, but I think that
7 beginning with the presumption of 120 to 125 hours is a good starting
8 place, and I trust that if I can persuade you to give me more time because
9 there's a good reason for it, that you'll exercise your discretion as you
10 have the power to do; and if we need less time, then of course we'll
11 contract the case accordingly.
12 One concern that springs to mind is with regard to the
13 municipalities. We have made the case as skinny as we can. My worry is
14 that when so much rides on the credibility of one witness, because we're
15 asking so much of them, to represent what's happened to their entire
16 community, that we don't risk proving too little by relying on one person
17 for so much. So I will keep in mind the comments regarding the depth of
18 the evidence, but we're dealing with massacres of families and mass graves
19 with hundreds of people. And I don't want at the end of the day to be
20 short-changing the victims or the international community by presenting
21 what I hope is a compelling and persuasive case, only to have it rest on
22 the shoulders of one or two sturdy survivors. But I'm grateful for that
23 duration of the case and we will be as efficient as we can and try to
24 bring you the very relevant pieces of evidence and not more than you need
25 and not less than you need.
1 JUDGE ANTONETTI: [Interpretation] Fine.
2 Mr. Seselj, you also have your word to say because you are
3 indirectly involved, even if we're talking about Prosecution witnesses
4 right now, you are entitled to cross-examination. So you're also entitled
5 to the same length of time. So this would mean for the time being that
6 the Prosecution would be given 120 or 25 hours for their expert witnesses,
7 for the insider witnesses, or the municipality witnesses. As for you, you
8 two would have 120 hours. I want to say this but I know you know because
9 you taught me last time, you plan to testify in person, and further to the
10 Rules and the case-law of the Appeals Chamber, the time taken by an
11 accused when he testifies is part of the total amount of time given to the
12 Defence; in other words, if you need 40 or 50 hours to testify, if you
13 have 120 in all, you have to deduct the 50 hours. So you have 70 hours
14 for the other witnesses.
15 Mr. Seselj, you have the floor.
16 THE ACCUSED: [Interpretation] All that is clear to me. I will
17 have a very small number of witnesses in addition to the experts and
18 myself, who is going to testify both in chief and in cross. There will be
19 witnesses who will be examined in chief for only 15, 20 minutes. I'm not
20 going to stretch things like the Prosecution are doing. However, I have
21 to raise four issues, or rather, ask four questions. Some things are not
22 clear to me. At the Status Conference I remember the figure of 105
23 witnesses was mentioned, now it's 101 apparently. Which four witnesses
24 were left out? Second, how is it possible to question in the Prosecution
25 case that number of witnesses in 125 hours, if we bear in mind that some
1 will take five or six hours? The Prosecution announced lengths of eight
2 hours for some witnesses. It doesn't sound possible to me.
3 Now, the problem arises, how is it possible to lead evidence on
4 the pattern of conduct in the municipalities that were left out of the
5 indictment when the indictment was reduced about the purpose and methods
6 of joint criminal enterprise without crime-base evidence. If we have no
7 crime-base evidence on Vocin, Brcko, Konjic, Borasnica, and other places,
8 if there are no -- if there is no crime-base evidence in these localities,
9 then there is no evidence of the pattern of conduct because the two or
10 linked. The Prosecution apparently plans to lead crime-base evidence
11 although that was denied them by a decision that you confirmed this year,
12 a decision dated in last year. I believe this Trial Chamber has to deal
13 with this problem urgently. The indictment was reduced by five locations,
14 five localities, but the number of witnesses and the number of exhibits
15 has not been reduced; that is unclear to me too.
16 Next, the trial is beginning tomorrow and my objection to the
17 indictment has not been resolved yet. I have submitted it within the
18 deadlines set by the Trial Chamber. Furthermore, I believe your decision
19 on protective measures is untenable. I invoke Rule 65 -- sorry, Rule 69.
20 Rule 69 says the protective measures may be applied in extraordinary
21 circumstances and that the identity of a victim or witness must be
22 disclosed in sufficient time prior to the trial to allow adequate time for
23 the preparation of the Defence. So in sufficient time prior to the trial.
24 Despite your interpretation that the beginning of the trial is
25 marked by the first Prosecution witness, the beginning of the trial is
1 actually tomorrow. The beginning of the trial is actually the opening
2 statement by the Prosecution. And generally speaking, the Rules of
3 Procedure do not leave the possibility of disclosing material on a witness
4 30 days prior to that witness's appearance. There are six such witnesses
5 according to your decision. I believe your decision has to be adjusted to
6 the Rules if you really want a fair trial. Those protective measures may
7 be justified of course, but disclosure of the identity of protected
8 witnesses may not be stretched that long. If that identity is revealed to
9 me 30 days prior to their appearance, those 30 days for me will be taken
10 up by preparing for cross-examining other witnesses. It is too little
11 time to prepare to cross-examine a protected witness. All these names
12 must be revealed to me in sufficient time prior. There are quite a few
13 witnesses in respect of whom you have decided that their identities will
14 be known to me only 30 days before the -- their appearance and some
15 witnesses I will know only 30 days before the beginning of the trial.
16 In addition to these, their identity -- there are witnesses whose
17 identities I should know, although they remain protected. The number of
18 those identities that have been revealed to me is negligible with respect
19 to the total number of witnesses, and that kind of disables my Defence.
20 So if we deduct these 16 witnesses, because I am operating with a figure
21 of 105 from the latest Status Conference, out of the remaining 89 I don't
22 know even half of the names. If you believe that based on these facts you
23 are able to conclude that all the pre-trial requirements had been
24 satisfied, then the trial will commence tomorrow. But these objections of
25 mine remain. I will continue to repeat them tirelessly throughout the
1 trial and in the appeals proceedings, because they have a firm standing in
2 the Rules of Procedure.
3 JUDGE ANTONETTI: [Interpretation] Just a minute. You have asked
4 four questions. Some pertain to what Mrs. Dahl has said. I shall answer
5 those that relate to the Trial Chamber. If my colleagues wish to
6 intervene, they may. As you know, protection of witnesses is provided for
7 in Rule 75 and 69 of the Rules of Procedure and Evidence. It so happens
8 that in your file a lot of witnesses have already testified in other
9 cases. That seems obvious. In the other trials these witnesses
10 benefitted from protective measures; therefore, we don't have any room to
11 manoeuvre. The Prosecution has filed motions, the Trial Chamber has
12 handed out decisions. Believe me, everything has been scrutinised on a
13 case-by-case basis. And this Trial Chamber, but the other Trial Chambers
14 as well, and prior to this one have handed down such decisions.
15 So there will be witnesses whose identity you will know 30 days
16 before the trial, and in some cases, some witnesses you will get to know
17 30 days before they come to testify in court. This is something we
18 discussed last time. We discussed what would happen before the
19 commencement of trial. As you know, I have handed down a decision that we
20 had to wait for the beginning of the trial before we could have the first
22 Because let us imagine that on the 11th of December, for whatever
23 reason, you fall ill and you cannot come. If, in that case, we would have
24 set tomorrow's date, we could no longer apply the 30-day rule. This is
25 why after having given careful thought to it this time-limit 30 days
1 before the trial begins is the 30 days before the trial -- the witness
2 comes to testify. Because tomorrow we will hear the Prosecution, after
3 tomorrow we will hear you, and we could have started with the first
4 witness on Monday. That wouldn't have been a problem whatsoever. It so
5 happens that given the number of trials ongoing and courtrooms that are
6 not available and the fact that the Judges are otherwise busy, we cannot
7 hear this witness before the 11th of December. But whatever the case may
8 be, without it prejudicing you in any way, you will have 30 days before
9 the 11th of December, i.e., the 11th of November, in few days' time. You
10 will have the list of those witnesses mentioned in the decisions, i.e., 30
11 days before commencement of trial. As far as the other witnesses are
12 concerned, those that will benefit from additional measures 30 days before
13 they come to testify, well, that will depend on the Prosecutor. I know
14 nothing about that. Perhaps the Prosecution will call those witnesses
15 sooner or later, I don't know.
16 Mrs. Dahl, you have the floor.
17 MS. DAHL: Your Honour, the topic makes me think it's a ripe
18 moment to address this request to the Chamber. I received the Scheduling
19 Order setting the commencement of evidence for the 11th of December. That
20 contracts the time from six days we expected in December to three, and I'd
21 like to request a modification of the decision of 16 October concerning
22 protective measures for certain witnesses. The reason for this is that
23 after we finish the week of 11 December, we will then go into a three-week
24 winter recess. The effect of that recess coming so quickly on the
25 abbreviated schedule for December is to dramatically diminish the
1 protection for witnesses, and I think that there is a demonstrated need
2 for protection and would like to propose that we disclose our witnesses
3 who have the benefit of the protective measure of delayed disclosure on
4 the 11th of December. That affords the accused the 30 days before we get
5 back into this trial schedule that will resume in January and does not cut
6 in half essentially the protections for those witnesses. It's an
7 unfortunate combination of events that we have a very brief sitting
8 followed by a very lengthy recess.
9 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Seselj, the Prosecution
10 is making a new application which I discover at the same time as you. Let
11 me sum it up, the Prosecution has realised that we will be sitting on the
12 11th, 12th, and 13th of December, and then we have a three-week break,
13 which means that if the disclosure is made on the 11th of December, we
14 will run into difficulties because we will have the three-week winter
15 recess which will come into play then. So the Prosecution is suggesting
16 that the Trial Chamber states that -- we're not talking about
17 Mr. Oberschall in this case because he's not concerned, but this would
18 start running from the week in January when we will start hearing the
19 witnesses. I think if I'm not mistaken that should be around the 7th or
20 the 8th of January, I don't have a calendar in front of me, which means
21 those 30 days would apply as of the 7th or 8th December and not as of the
22 11th of November. It's a little bit complicated, but as I know that you
23 have an agile mind, I would like to ask you whether you wish to respond to
24 this orally.
25 THE ACCUSED: [Interpretation] Judge, at law schools in my
1 country - and I hope that that is the case throughout the world - during
2 the freshman year there is this subject called general theory of law and
3 state. Within this subject there is a long section that has to do with
4 the interpretation of law, and there are different methods there. When I
5 took that exam - and I was an excellent student - had I interpreted legal
6 norms in that way, as is happening in this courtroom, I never would have
7 gotten a degree in law. In all textbooks at law school it says that a
8 trial starts with an opening statement of the Prosecutor or in some
9 case -- in some countries the indictment is read out. For example, in
10 Serbia, in the beginning it is the indictment that is read out. Nowhere
11 in the world does a trial start from the day when the first Prosecution
12 witness is heard. That doesn't exist anywhere.
13 Secondly, no matter what you decide now, you are going to stand by
14 them. It has to do with your own reputation as a Trial Chamber. Rule 69
15 does not allow for that interpretation. In 69(C) there is only a
16 reference to early enough prior to the beginning of trial, nothing else.
17 It doesn't say 30 days prior to the testimony of a particular witness.
18 That cannot be legally valid. Perhaps it can take place through legal
19 violence, but then your previous decision has to be questioned. It is
20 going to constitute legal violence. You cannot trample upon Rule 69. It
21 is explicit. It says in sufficient time prior to the trial, let it be one
22 day, let it be one hour before the trial starts. If the trial starts
23 tomorrow at 9.00, I insist that at 8.00 in the morning I get the names of
24 all protected witnesses, otherwise you are committing legal violence.
25 Make it happen at 8.30, make it happen at a minute to 9.00, give me a list
1 of the names of protected witnesses and I am going to admit to you that
2 that is early enough prior to the commencement of trial.
3 But interpreting it to say that the trial begins in December and
4 in view of the fact that Oberschall will only be heard for three days and
5 then the next witness comes in January, and then we consider the first day
6 of the trial in January to be the beginning of the trial, that's a comedy.
7 From the first moment this trial is being turned into a comedy. I insist
8 that a minute before trial starts I be given a list with the names of all
9 protected witness, otherwise this is legal violence.
10 In the morning before Ms. Dahl starts her opening statement of the
11 Prosecution, if I do not have a list with all the names of all the
12 protected witnesses, you will be directly trampling on Rule 69 and this is
13 legal violence.
14 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, you know the Rules
15 of Procedure, and you quoted Rule 69, quite rightly so. If you will allow
16 me, I shall read paragraph (C).
17 "Subject to Rule 75, the identity of the victim or witness shall
18 be disclosed in sufficient time prior to the trial to allow adequate time
19 for the preparation of the Defence."
20 So on the 11th of February, 1994, those people that have drafted
21 this provision were careful to make sure that the Defence was in no way
22 prejudiced. I assume that it's on the basis of this paragraph (C) that
23 the case-law was established by the Trial Chambers here, and this is why
24 the time provided for someone to prepare his or her Defence is 30 days by
25 and large. Therefore, with this in mind, what should guide the Bench is
1 the question of whether the accused has enough time to prepare his
2 Defence; otherwise of course this does infringe your rights. 30 days is
3 something which was worked out by all the Trial Chambers. It's not
4 mentioned in Article 69 -- in Rule 69. For those witnesses which you will
5 discover 30 days before, let me remind you that you've been preparing this
6 case for the last five years. And more than anyone, I'm sure you know all
7 the witnesses and potential witnesses that may come to testify from back
8 to front. So you should be able to cross-examine these people.
9 So the Trial Chamber has noted what you have said. You challenge
10 the application made by Mrs. Dahl. The Bench will discuss it, and I
11 cannot tell you outright how the Trial Chamber will respond. But we have
12 acknowledged your submission.
13 You have also raised another issue. You said that at the outset
14 there were 105 witnesses and that there are only 101 now. I -- this is a
15 figure I quoted on looking at a document. You are the only person who
16 knows how many witnesses you plan to call. Mr. Seselj is able to do his
17 sums, and he thought 101 witnesses, some of them will be here for four to
18 five hours, maybe you'll run into difficulties. So how can we hear 101
19 witnesses in 120 hours.
20 So could you perhaps clarify this for us, please.
21 MS. DAHL: I don't think that I can. I think that the premise of
22 the question is difficult if all of the witnesses take each four hours or
23 so, of course we can't bring everyone we would like to with the time we've
24 allotted. Our estimates are based on an abbreviated presentation in
25 court. Some witnesses may do no more than adopt -- swear to the 92 ter
1 statement that they have prepared. Other witnesses we will lead more
2 evidence from orally, depending on their prominence and proximity to the
3 acts and conduct of the accused. Some witnesses we will bring in with
4 their statements and simply tender them for cross, trusting that the
5 information contained in writing will be deemed relevant and compelling as
6 if the witness had read his heart to you, so to speak, from the witness
7 stand as opposed to simply putting his signature at the bottom of his
8 narrative of events in history.
9 If we are unable to proceed by way of written testimony, written
10 form, like a dossier of evidence that a witness has affirmed and sworn is
11 the truth, the time allotted to us will cripple the Prosecution case. I
12 don't think that is the intention of the Chamber, certainly the goal is a
13 fair and compelling presentation of evidence that's relevant to the
14 charges. So we will try to efficiently use the court time, giving more to
15 witnesses for whom the cross-examination may be more robust and less to
16 those witnesses where we would hope that the material facts are not
18 JUDGE ANTONETTI: [Interpretation] As we are addressing the issue
19 of witnesses, I would like to mention, this is for my colleagues and this
20 was mentioned in my report. Mr. Seselj filed a few months ago a complaint
21 for contempt of court re: Number of representatives of the Office of the
22 Prosecutor, including the person heading -- the chief Prosecutor. So the
23 Trial Chamber was presided over initially by myself and Judge Robinson and
24 Judge Bonomy. We had handed out a decision and stated that these
25 witnesses who had been pressured or tampered with in any way, during the
1 cross-examination of Mr. Seselj, that these witnesses could be questioned,
2 and the questions could pertain to promises, forms of pressure exerted,
3 and so on and so forth, which means that in light of this decision which
4 was handed down, Mr. Seselj, when a witness comes to testify - I'm not
5 talking about Mr. Oberschall in this case, but I'm talking about other
6 witnesses - and the Prosecution will conduct its examination-in-chief and
7 will say, Can you confirm or stand by the written statement you have made,
8 let me show you the document. And once this is done, then you will have
9 time -- you will still have time, and this is mentioned in the 65 ter
10 rule. And if the Prosecution has to ask, you will then have to ask to
11 cross-examine, and we are complying with the decision that was handed down
12 by the Trial Chamber. In other words, to put questions to the witness
13 relating to the fact, understanding how things happened with the OTP, with
14 the investigators, were they given promises, were they given gifts, why in
15 the end did these people come and testify. So any question pertaining to
16 the credibility of the witness are questions you will be entitled to put.
17 I myself will put questions to those witnesses in light of the question
18 you have raised.
19 The Trial Chamber at the time was presided over at the time by
20 Judge Robinson and the Trial Chamber has said -- had said that it was only
21 after hearing all of the testimonies that the Trial Chamber would look
22 into the merits of your complaint. And you will be able to bring in your
23 own witnesses in support of your allegations. Therefore, I wish to remind
24 you of this. This has not been forgotten, and I personally will put
25 questions to the witness to this effect and check those conditions or
1 under which conditions these statements were made.
2 So tomorrow the Prosecutor, Mrs. Dahl, I believe it's you unless
3 it is Mrs. Carla del Ponte who will come and honour us with her presence,
4 I don't think so, but I think it is Mrs. Dahl who according to the Rules
5 will provide us with her opening statement. She will give us the position
6 of the OTP in this case. So this is what we will hear tomorrow. I would
7 like both parties to make reasonable statements.
8 And, Mr. Seselj, even if you don't approve or agree with what
9 Mrs. Dahl is saying, please do not intervene.
10 The same applies to you, if you are saying something which
11 displeases Mrs. Dahl, please let him finish. Last time we did say that
12 the Prosecution would have four hours.
13 And, Mr. Seselj, you will have the same amount of time, four hours
15 Mr. Seselj.
16 THE ACCUSED: [Interpretation] I have to admit, Judge, that I'm
17 surprised by your words of caution. Not at a single conference did I
18 interrupt Ms. Dahl. Tomorrow I'm going to keep totally silent. I really
19 do not think that you should have warned me about this. If anybody is
20 prone to interruptions, it's Ms. Dahl. I never ever interrupted anyone.
21 Secondly, you invoked 69(C) in the sense of it guiding us to Rule 75.
22 That is true. But Rule 75 does not offer the possibility of disclosing
23 the names of witnesses to an accused 30 days prior to their testimony.
24 Rule 69 is categorical. If it was violated in some cases, that had to do
25 with Judges' arbitrariness, and I don't think that you should rely on that
1 in this case. I demand an absolute honouring of Rule 69, and I insist
2 that you inform me in the morning before Ms. Dahl starts with her opening
3 statement what you decided as a Trial Chamber on this particular matter,
4 whether the names of protected witnesses have to be disclosed to me before
5 the trial starts or through some kind of an absurd interpretation of who
6 knows when.
7 The other thing that Ms. Dahl said that many witnesses would be 92
8 ter witnesses and 92 quater, again I would like to call upon Rule 6 that
9 prohibits that, the retroactive change of provisions of the Rule that
10 would prejudice my rights or jeopardize my rights, and that would
11 certainly be the case because I was not present when these witnesses were
12 interviewed, when their statements were taken. I did not have an
13 opportunity of questioning them. Their alleged statements are only an
14 extension of the indictment for me. This is not evidence. If that is
15 evidence, then you can take the indictment as evidence, too. If you look
16 at a statement that was written by the Prosecutor or an investigator and
17 if you're taking that as evidence, then you can take the pre-trial brief
18 as evidence, then you can take the indictment as evidence, and there is
19 nothing more to be done. I do not accept a single witness on the basis of
20 Rule 92 ter and 92 quater. It is only through legal violence that that
21 kind of thing can be admitted into evidence. You cannot convince me that
22 this is not to my detriment; it is always prejudicial against me and I'm
23 not going to cross-examine witnesses like that.
24 You did not answer another question of mine: What about my motion
25 to -- in respect of objecting to the indictment. I'm actually referring
1 to Rule 72 --
2 JUDGE ANTONETTI: [Interpretation] [Previous translation
3 continues] ... respond straight away. The motion on a defect in the form
4 of the indictment is something which we are looking into. I wanted this
5 current Chamber to hand down this decision, not the previous Chamber. So
6 this will be done.
7 As far as what you've just said concerning 92 ter, 92 quater
8 witnesses, we've already had this discussion at the last Status Conference
9 and I did tell you that according to Rule 6 the amendments in force or the
10 amendments will come into effect the day they are published without it
11 prejudicing in any way the rights of the accused. Therefore, what is
12 going to happen? When Mrs. Dahl will say, I would like a 92 quater
13 because my motion meets the requirements of a 92 quater rule, when the
14 Trial Chamber will hand down its decision it would consider whether or not
15 you are being prejudiced. If you are being prejudiced, then you can say
16 so because you will also be entitled to speak up and you will tell us what
17 the prejudice concerns.
18 Now, as far as 92 ter is concerned, if a witness is heard as a 92
19 ter witness, he then takes a solemn declaration and testifies under oath
20 and he says that he is going to tell the whole truth, namely, that what is
21 contained in the statement is in line with what he will say, then you can
22 and you are entitled to cross-examine him on everything that is contained
23 in his written statement. That is how 92 ter rule operates. This is what
24 I told you last time. However, this will have to be decided on a
25 case-by-case basis. I don't know what kind of witnesses will be called.
1 If in any event one witness is called to testify and that that witness may
2 pertain to your responsibility, then maybe the Bench will turn around and
3 say, No, no 92 ter, please, because it is important for that witness to
4 answer the questions that are being put to him or her by the Prosecution.
5 And in that case, a written statement will not be taken into account. But
6 this will be decided on a case-by-case basis.
7 As the Trial Chamber will know ahead of time which witness will
8 come when and how, then the Trial Chamber of course will be able to, after
9 having heard you of course, because it is very important that we hear what
10 you have to say in these proceedings and if your rights are being
11 infringed and if you are being prejudiced in any way, the Trial Chamber
12 will then say yes or no. So your rights are being guaranteed.
13 The Bench is going to discuss this in a few minutes' time. As you
14 have filed a request and told us that you would wish to have the list of
15 witnesses by tomorrow, and pursuant to Rule 69, we will tell you what the
16 Bench has decided. But I cannot anticipate the decision of the
17 Trial Chamber regarding this particular matter.
18 This is what I had to say to both parties. This 73 bis rule
19 hearing is coming to a close, and pursuant to this rule we will hand down
20 a written decision on allocation of time. And before giving the floor to
21 Mrs. Dahl tomorrow morning, we shall hand down an oral decision on this
22 particular matter; namely, the witnesses which you would like to be
23 informed about. I would like to thank both parties, the Prosecution,
24 Mr. Seselj, and I would like to thank the parties for the way in which
25 this hearing has unfolded. We were able and you were able to express
1 yourself freely. I hope this will be the case in the future. This is in
2 the interests of justice, and it is important to have an adversarial
3 debate here. It is important that each party states his or her position
4 so that the Judges when it comes to deliberating are able to determine the
5 matter on the basis of the relevance and probative value of the evidence.
6 This is what should help us on this difficult exercise which is what we
7 are asked to do here, i.e., to render justice. We have to make sure that
8 the Rules of Procedure and Evidence are abided by, that both parties are
9 protected in these proceedings, and that the accused has a feeling that
10 the trial has been fair. If it were to be to the contrary, justice would
11 not prevail as it should. I am sure that my colleagues also share the
12 same view as I do.
13 We will do our utmost, Mr. Seselj, to make sure that your voice is
14 being heard, that we have heard what you had to say, and that the
15 Prosecution can be heard also. And to conclude, the Trial Chamber is able
16 to draw its own conclusions at the end of all those hearings which will
17 take place in the future. I wish you a nice evening, and as you know we
18 shall meet again tomorrow morning at 9.00.
19 Mrs. Dahl.
20 MS. DAHL: Yes, Your Honour. I wanted to just bring up -- there's
21 a couple of outstanding motions that I would request the Chamber's
22 attention to. We're still waiting for the approval of the second amended
23 indictment. I need to file updated schedules. We've looked at the
24 schedules that were prepared in 2003 and connected them with the evidence
25 that's been disclosed, we want to correct misspellings and dates of birth
1 and make sure that all of the names that are disclosed are properly
2 reflected. There's also a motion for adjudicated facts. The motion was
3 filed in 2006, it's been fully briefed and translated and it's at issue.
4 It would help us to have an early ruling on that motion so that we know
5 what facts we will be able to rely on as accepted as adjudicated by the
7 JUDGE ANTONETTI: [Interpretation] Very well. That's not a
8 problem. The Trial Chamber will hand down these decisions. We need time
9 to confer over these matters, but you can rely on us. We will hand down
10 these decisions as soon as possible.
11 Mr. Seselj, as the Prosecution wish to take the floor, you may
12 take the floor also.
13 THE ACCUSED: [Interpretation] I have to inform you, Judges, that
14 the Prosecution systematically called all my potential witnesses who had
15 given statements to my legal associates, and these statements are attached
16 in my criminal report and the attachment to my criminal report. Some of
17 them refused to be interviewed by the OTP and some were brought to
18 The Hague as a matter of fact and then they refused to be Prosecution
19 witnesses here and they said that they would be my witnesses.
20 Just like I am forbidden to contact the witnesses of the
21 Prosecution whose names I know, the Prosecutor is even more prohibited to
22 contact potential Defence witnesses, people she knows are potential
23 Defence witnesses in advance. They are exerting impermissible pressure
24 against Defence witnesses. I'm going to give you a name.
1 MS. DAHL: [Previous translation continues] ... sorry, Your Honour,
2 we need to go into closed session.
3 THE ACCUSED: [Interpretation] -- The Prosecution heard him earlier
4 on but he refused to testify for them.
5 JUDGE ANTONETTI: [Interpretation] [Previous translation
6 continues] ... one moment. Yes, this might be the name of a protected
7 witness, if so we'll have to have a redacting order.
8 THE ACCUSED: [Interpretation] No.
9 JUDGE ANTONETTI: [Interpretation] He's not protected? I don't
11 THE ACCUSED: [Interpretation] There's not a single protected
12 Defence witness. He is a Defence witness --
13 MS. DAHL: [Previous translation continues] ... Your Honour.
14 THE ACCUSED: [Interpretation] -- not a single Defence witness is
15 asking for protective measures.
16 JUDGE ANTONETTI: [Interpretation] Well, from what Mr. Seselj says,
17 he's a Defence witness, the one he gave the name of.
18 MS. DAHL: Mr. Seselj doesn't know who all of our witnesses are,
19 and we've discussed this before. The naming of names and the redaction or
20 going into closed session needs to be neutral, otherwise the act of
21 redaction discloses, in fact, whether or not it's a protected witness. So
22 we really need to respect that, otherwise I will be jumping up like a
23 jack-in-the-box that Mr. Seselj called me.
24 JUDGE ANTONETTI: [Interpretation] Yes. Last time, Mr. Seselj, I
25 told you whenever you want to state a name, it might be the name of a
1 Prosecution witness, then you have to say Mr. X or you ask to move to
2 private session to speak about it; otherwise, I'll have to issue an order
3 to redact the name. I know that you said that in your flight, but you
4 raise a true problem not provided for by the Rules --
5 THE ACCUSED: [Interpretation] This is a violation of the Rules,
6 Judge. This is a violation of the Rules. Not a single Defence witness is
7 a protected witness. I don't dare mention a single name in public
8 sessions. Why should I defend myself at all then? As I hear some
9 Prosecution witnesses here, I'm going to mention different names of people
10 who participated in events. The Prosecutor cannot ask for closed session
11 all the time because it's possible that I'm going to mention a protected
12 Prosecution witness. What would that be like if I mention a name of a
13 person as a participant in a particular event, I'm mentioning that name
14 regardless of whether this is a potentially protected witness or not, I'm
15 referring to someone as a participant in an event.
16 There are people who are participants in the joint criminal
17 enterprise according to the Prosecutor, so then I do not dare mention any
18 of their names either because some of them appeared as protected witnesses
19 in some other case? That really makes no sense. I can mention any name
20 unless I was informed beforehand that such and such a person is a
21 protected witness. In that case, I observe measures of protection. I
22 never disclosed a name of a person who I was told was a Defence -- who was
23 a Prosecution witness who is protected. What do you mean that I cannot
24 mention a single name? How is that possible?
25 MS. DAHL: I can't hear the translation because of the volume of
1 Mr. Seselj's voice, because he be please requested to lower the volume.
2 JUDGE ANTONETTI: [Interpretation] Yes, Ms. Dahl, when
3 Mr. Oberschall comes to testify, it might be that during the
4 cross-examination Mr. Seselj might be -- might have to give names. He's
5 not at all aware of who is protected among the witnesses, you see, so it
6 may be that he might state names. So what is your view on this?
7 MS. DAHL: I think that that presents a different context, and
8 what the argument that Mr. Seselj is doing is taking the rule and trying
9 to show its application in a different context. If we're talking about
10 individuals in a factual context or in questioning, that's completely
11 different and presents a different problem than Mr. Seselj saying that one
12 person is a witness or another person is a witness. And I don't think
13 that cross-examination of Dr. Oberschall is going to raise the same issues
14 regarding the privacy of witnesses. It's when somebody is identified as a
15 witness in this case as opposed to a percipient witness that the expert
16 might be talking about.
17 JUDGE ANTONETTI: [Interpretation] Ms. Dahl, I don't know what
18 Mr. Seselj is going to say, I don't know at all, but let us imagine that
19 in his opening statement Mr. Seselj is -- said that he was going to speak
20 about the pre-trial brief. I'm just giving an example because I'm not in
21 his head, but after all I'm used to -- I've been used to criminal trials
22 for 30 years, so I can pre-empt or have an idea what's going to happen
23 just as well. He could say the Prosecutor in paragraph 4 of page 24 says
24 this and this. I challenge what is said there and I'm going to
25 demonstrate through witnesses X, Y, Z, Mr. This and Madam This, that this
1 is wrong or false. And he's going to come up with names. As far as I can
2 see, he is allowed to give those names because that's his case. I don't
3 know what my fellow Judges feel, but you can't just get on your feet and
4 ask for a redaction, all the more so if we are talking about or if he
5 mentions four individuals who he has already contacted and said they were
6 going to be his Defence witnesses.
7 So that's it. So far we've had this problem on a couple of
8 occasions, but on Wednesday he's free to talk, and unlike what he said,
9 nobody's going to cut him off and he can express himself.
10 MS. DAHL: The pre-trial brief has two forms: One is a public
11 brief that includes references to witnesses according to a pseudonym.
12 There's a confidential brief that discloses more information. I don't
13 think it's appropriate to jeopardize the safety and security of witnesses
14 to name names in an opening statement. I will not be naming names in mine
15 because our sensitive witnesses deserve the privacy and protection.
16 Mr. Seselj's naming names as well presents a privacy issue for those
17 individuals. They may have security and privacy issues that they should
18 have the opportunity to bring before the Chamber coincident with their
19 appearance here.
20 JUDGE ANTONETTI: [Interpretation] One moment, Ms. Dahl, I do
21 understand what you say, but you raise a real problem there. Mr. Seselj
22 in his opening statement is going to present his case. He said so. There
23 are witnesses whose identities he doesn't know because that's the very
24 subject of his claims and his grievances. Therefore, when he speaks on
25 Wednesday, he can say: Well, what is written here is wrong, is false,
1 because I've got people who are going to say the opposite. And if then
2 were to name names, I can't see why he should be prevented from naming
3 names. Or what could prevent him because per se he doesn't know if those
4 people are protected witnesses or not.
5 MS. DAHL: I'm not clear on the procedure, because Mr. Seselj told
6 us at one of the Status Conferences that he was going to reserve his
7 opening statement until the commencement of the Defence case. If that's
8 so, by then he will know all of our witnesses because they will have
9 testified presumably and they would have been disclosed. If he is giving
10 an opening statement tomorrow, that's a new problem.
11 JUDGE ANTONETTI: [Interpretation] Let's not play on words,
12 Ms. Dahl. For four years I've been sitting just about every day in a
13 courtroom. So if anyone knows the procedure, I am the one, and I am
14 telling you that in his opening statement which is a presentation of his
15 Defence system, he is entitled to address any subject that is of interest
16 because he's the accused; you're not. So if he's the accused, if he wants
17 to try and defeat your case, your strategy, he can do so by saying, Well,
18 the Prosecutor in paragraph 4 said this, I have Mr. So-and-so and
19 Mr. So-and-so who's going to testify to say the opposite. Or Mr. X wrote
20 a book -- after all, you're not going to forbid him from saying so.
21 I mean, I don't know what my fellow Judges feel about it, we're
22 going to discuss this of course in time by Wednesday, but I'm expressing
23 my views, and listening to you I'm under the impression that you really
24 want to lock him up, to lock the freedom of expression, and trap the
25 Judges into a role where they would let you go -- I mean let you do
1 whatever pleases you. It is out of the question. I wanted to say this to
2 you. You are right, there are protected witnesses and nobody is supposed
3 to know their identity; you're quite right on that one. And Mr. Seselj
4 also has to comply with this. However, if he doesn't know in advance the
5 fact that certain people might be protected witnesses, I mean he's not
6 going to know about them because when we start -- the time has not started
7 running, so what prevents him from saying M. Durant or Mr. So-and-so is
8 going to say this because he's a Defence witness, and then it will turn
9 out that this M. Durant will be your witness that could happen. I don't
10 know, but that's the problem.
11 Listen, we're going to break.
12 THE ACCUSED: [Interpretation] May I very briefly, Judge, very
13 briefly, please. On Thursday I'm providing a witness statement under
14 Rule 84 bis, and you allowed me to speak for four hours. That is a
15 statement by the accused, whereas my opening statement will be when the
16 Defence case starts.
17 And second, very briefly, I never got the confidential version of
18 the pre-trial brief. I just have the public version, and the witnesses
19 are under pseudonyms. Even if I wanted to, I cannot disclose a single
20 name that has not been disclosed to me. This is the public version, it is
21 on the internet, the one that I received. So what Mrs. Dahl is saying
22 makes no sense at all. And if I am speaking about participants in events
23 about which I do not know that they may be potential protected witnesses,
24 I will not know it, I will not be aware of it, and nobody else will be
25 aware of it. If tomorrow morning they let me to have a list of all the
1 protected witnesses, I will not mention those names, then. And they are
2 duty-bound on Rule 69 to give me that list tomorrow.
3 JUDGE ANTONETTI: [Interpretation] Ms. Dahl, Mr. Seselj tells you
4 what the solution. If you have any concern regarding a witness, just --
5 just say as early as tomorrow these are the witnesses of concern, and
6 Mr. Seselj, as he's just said, will not be allowed to name names. And
7 then your worries or concerned may be assuaged.
8 MS. DAHL: He has not provided us with a list of his witnesses. I
9 want to prevent him from hurting people. I do not want him to be able to
10 thrust people unwillingly into the public eye. He has admitted lying and
11 making up things in order to suit his own purposes. I do not want that to
12 happen this week where there is an enormous amount of public interest in
13 the opening of the case. I don't have his witness list, so I can't go
14 through and try to figure out if there's some overlap where I need to be
15 cautious, and anybody he mentions has a privacy interest. We went through
16 this when he had one of his associates out putting out signs to create
17 public support for Ratko Mladic. This is a very serious matter.
18 JUDGE ANTONETTI: [Interpretation] I don't want to go into that.
19 Rule 84 bis provides that the accused, after what you say, after your
20 opening statement, can appear. 84 bis does not say that his testimony
21 must take into account the issue of protected witnesses that he doesn't
22 know of; you are the one who adds this. Therefore, tomorrow -- on
23 Wednesday, if he is to speak, to say that in order to support his Defence
24 he's of the view that Mrs. Y, Mr. X are individuals who are going to come
25 and support his version of the facts and if it so happens that these
1 people also were your witnesses, I don't even know what he's going to say.
2 I don't even know what he's going to say, and you are already sort of
3 going ahead. But if he's going to name a name, I'm not going to check
4 straight away to make sure that that name is the name of somebody's who
6 JUDGE LATTANZI: [Interpretation] I must say something. If the
7 accused does not plan to make an opening statement the day after tomorrow
8 but only a statement that he is authorised to make the day after tomorrow,
9 we can indeed ask him to make sure that he does not use or resort to names
10 during that statement, to try and avoid naming names. He can do so. He
11 can use names when the time comes for him to make an opening statement for
12 his Defence, for his case I believe. He could indeed, be courteous enough
13 for us to be able to progress, to make headway.
14 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, my fellow Judge just
15 said something. What do you think?
16 THE ACCUSED: [Interpretation] Well, that is simply impossible.
17 Tomorrow at least I have to mention Jacques Chirac and what Jacques Chirac
18 stated to the Serbian people, and statements by a whole series of other
19 Western statesmen. It's not impossible for me to refrain from mentioning
20 any names. I have to mention the key people from the General Staff who
21 took part in the war, generals who commanded the army, chiefs of military
22 security services. I have to mention the names of the participants in the
23 JCE who are mentioned in the indictment, who are mentioned in the
24 Milosevic indictment but not in mine, in the Krajisnik indictment, but not
25 in mine. All this gibberish, and I have tell you this: Ms. Christine
1 Dahl is lying through her teeth when she says here in the courtroom that I
2 admitted to lying. I never admitted to lying anywhere because I never
3 lied in the first place, not in my testimony in the Milosevic trial, not
4 in my previous statements. I just explained the nature of certain
5 statements, and she is lying shamelessly that I admitted to lying before.
6 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, you mention
7 well-known names, you intend to name them, that's fine. But the problem
8 is not there. The problem arises if you name the names of victims of
9 people who were there in the field, that's the problem. If you mention
10 the head of the intelligence service, that's fine, they're all known
11 names. The problem is really at the level of the area. Are you going to
12 mention names from the field or not?
13 THE ACCUSED: [Interpretation] Never. I will never mention a
14 single victim's name unless that name is mentioned in the public version
15 of the pre-trial brief, and I can mention the names of commanders of
16 volunteer units. (redacted)
23 JUDGE ANTONETTI: [Interpretation] It is now 7.30.
24 THE ACCUSED: [Interpretation] Names of my prominent volunteers,
25 people I trusted.
1 MS. DAHL: Your Honour, very briefly, I am in agreement with
2 Judge Lattanzi's observation regarding the purposes of Rule 84 bis. It's
3 not an opening statement. It's not necessary at this point for Mr. Seselj
4 to declare all of the people whom he thinks will support his case. We
5 cannot give him a list of witnesses in order to tell him whom to steer
6 away from, and I can only think that the Rule 84 bis statement of the
7 accused has to do about his acts and conduct not, generally speaking, his
8 theory of Defence or the number of people who support his view of the
9 facts. And I would ask that we keep the focus on preventing further harm
10 and protect the privacy of the people. There won't be this issue once we
11 get his list of witnesses. Their needs can be addressed by the Victims
12 and Witnesses Unit, and by the time that Mr. Seselj makes his opening
13 statement and declares his defence and what he thinks the evidence will
14 prove, we will have disclosed all of our witnesses and they will have
15 testified, so that issue won't present itself in the same context.
16 JUDGE ANTONETTI: [Interpretation] I mention Rule 84 bis, but
17 there's also Rule 84 prior to the opening statement by the Prosecutor.
18 Each party, you and him, can make an opening statement. So he is entitled
19 to make an opening statement. However, the Defence, him, therefore, can
20 decide to make an opening statement after the presentation of the
21 Prosecution case and before the Defence presents their case. So it is up
22 to him to decide. If he wants to speak on Wednesday, he does so; if he
23 wishes to speak after you have presented your case, he can do so.
24 Therefore, there is total equality. The Prosecutor will present their
25 case, he makes his opening statement, you make yours, and the Rules say
1 that he's also free to make a similar opening statement.
2 JUDGE LATTANZI: [Interpretation] I'm very sorry, I just wanted to
3 say that Mr. Seselj himself said that he can -- he has decided to present
4 his opening statement at the beginning of his Defence case. Therefore,
5 that's what I understood and the day after tomorrow, on that day he's
6 going to limit himself to a statement that he was authorised to make, but
7 it is not his opening statement.
8 JUDGE ANTONETTI: [Interpretation] Can you enlighten us, on
9 Wednesday, what do you plan to do? On what basis are you going to speak?
10 THE ACCUSED: [Interpretation] Your colleague, Ms. Lattanzi, is
11 completely right. I am making a statement of the accused under Rule 84,
12 that's what I told you also at the Status Conference when you allowed me
13 four hours for that statement. That's a statement of the accused. The
14 Rules of Procedure and Evidence envisaged the privilege for the accused
15 vis-a-vis the Prosecution. The Prosecution can make an opening statement
16 only once, whereas I am entitled both to a statement of the accused and
17 the opening statement.
18 On Thursday, under Rule 84 bis, I'm making a statement of the
19 accused. I repeated that at several Status Conferences. The previous
20 Trial Chamber gave me two and a half hours, giving three hours to the
21 Prosecution; you increased that to four hours for me and four hours for
22 the Prosecution, and I believe that is quite appropriate. I am making a
23 statement of the accused. I am going to be presenting my views on the
24 indictment and the pre-trial brief of the Prosecution.
25 JUDGE ANTONETTI: [Interpretation] Very well. Now, the time has
1 come to finish. My apologies to the interpreters, but we had to look into
2 this. We shall convene again tomorrow at 9.00. Thank you.
3 --- Whereupon the Pre-Trial Conference
4 adjourned at 7.28 p.m.