Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2229

1 Tuesday, 8 January 2008

2 [Open session]

3 --- Upon commencing at 2.15 p.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you please

6 call the case.

7 THE REGISTRAR: Thank you. Good afternoon, Your Honours. Good

8 afternoon to everyone in the courtroom. This is case number IT-03-67-T,

9 the Prosecutor versus Vojislav Seselj.

10 JUDGE ANTONETTI: [Interpretation] Fine. Thank you.

11 This is the beginning of 2008, and I wish you all the best to all

12 of you, Mrs. Dahl and her collaborators, as well as Mr. Seselj, and all

13 the people helping us. As you know, we have a witness scheduled today,

14 and before bringing the witness into the courtroom we have a problem to

15 settle, a problem that has to do with the pseudonym. I will not quote any

16 names, but I will only talk about procedure.

17 The witness that is scheduled was supposed to be in the first

18 place the object of a decision that had been delivered on the 16th of

19 December, 2004, and this Chamber -- another Chamber had assigned a

20 pseudonym to this witness; however, this pseudonym was to be valid until

21 the beginning of the trial. When I took over this trial as Pre-Trial

22 Judge, I noticed that many decisions had been made regarding witnesses and

23 some of these decisions seemed to be a bit contradictory, and therefore I

24 asked Prosecution to clarify exactly what had been asked. And I made a

25 decision on June 11, 2007, a decision on the clarification of protective

Page 2230

1 measures. On June 25, 2007, Prosecution filed a motion, a consolidated

2 motion. In this consolidated motion there was mention of 53 witnesses;

3 however, the witness that is scheduled for today was not part of this list

4 and therefore no pseudonym was available for this witness.

5 Recently when Prosecution was putting together the two binders

6 with the exhibits for this witness told us that the witness would need a

7 pseudonym.

8 Mrs. Dahl, could you please tell us why there should be a

9 pseudonym for this witness. If there's a pseudonym, there has to be

10 protective measures that have to be granted and we have a have a

11 motivation.

12 MS. DAHL: Your Honour, I think there's a misunderstanding. There

13 was a pre-trial pseudonym the witness does not wish a pseudonym during

14 trial. There is other matter before we proceed to evidence that needs to

15 be addressed before hand.

16 JUDGE ANTONETTI: [Interpretation] Fine. He will come and will not

17 benefit from any protective measures. So I think this matter is now

18 solved.

19 Mr. Seselj.

20 THE ACCUSED: [Microphone not activated]

21 THE INTERPRETER: Microphone, please.

22 THE ACCUSED: [Interpretation] Does that mean, Judge, that the

23 witness will testify in public under his full name? All right, then I

24 agree.

25 JUDGE ANTONETTI: [Interpretation] Absolutely.

Page 2231

1 Let's have the witness brought in.

2 THE ACCUSED: [Interpretation] Judge, please, before you bring in

3 the witness I have some procedural objections and comments. Yesterday the

4 detention guards tried to serve on me a new statement of this witness on

5 several pages. The statement was exclusively in English, and I rejected

6 it. Today a representative of the registry brought in to me under a new

7 number, that's a new statement of this witness, taken on the 7th of

8 January but in only one sentence, it's in Serbian. I just received it. I

9 demand before the witness is brought into the courtroom that last

10 evening's statement on several pages be served on me in Serbian.

11 Furthermore, concerning this witness, I received only a part of

12 the transcript of his testimony in Milan Milutinovic case et al., that is,

13 the second day of that trial; but I have reason to believe that there is

14 at least another part of the transcript from the day before. There are

15 also indications that the same witness testified in other cases, but I

16 have none of those transcripts. I would like the Prosecution to clarify

17 whether he indeed testified in other cases.

18 You as Pre-Trial Judge instructed the Prosecution that before

19 hearing every Prosecution witness they should submit a full set of

20 documents concerning that witness. I received two binders, but they do

21 not contain all the documents. They don't even contain all the documents

22 that the Prosecution has served on me before. There is an enormous number

23 of documents that I managed to find in my archives that had been served on

24 me before concerning this witness, but they are not in these binders, and

25 I justifiably suppose that there may be another document that eludes me

Page 2232

1 for the time being and is necessary for the trial. I draw your

2 attention -- I don't know whether it's the same case with you, the Trial

3 Chamber, but in my documentation in binder number 2, tab 54, there's no

4 paper behind, there is a number, though, and there should be something I

5 suppose; then tab 59 -- sorry, 58 says 1 to 10, that means 10 pages,

6 whereas there is only one page here in the binder and that one is only in

7 English. Until all this is remedied, I believe there are no procedural

8 conditions required to hear this witness.

9 JUDGE ANTONETTI: [Interpretation] Let me come back to a few of the

10 points you've just made. You've been disclosed a document in English and

11 apparently this document is a proofing note; in other words, the

12 Prosecutor met with the witness and based on the previous statement of the

13 witness a number of changes were recorded, and you were notified of these

14 changes. Initially this was a document drafted in English, it was then

15 later translated into your own language. You should have, therefore,

16 received that document, and Ms. Dahl will be able to confirm that for us

17 later on.

18 Secondly, the two binders we've all received, my fellow Judge, you

19 yourself, everyone, these two binders, you have said so yourself, include

20 73 tabs. You've mentioned tab 59, or rather, 58, saying that there was no

21 document after this tab. Does that mean that there is no document or that

22 the Prosecutor does not want to produce that document, I don't know.

23 From what I understand, in these two binders we have the documents

24 that the Prosecutor will show the witness later on, and these documents

25 will be shown in the order going from 1, document 1 to document 73. You

Page 2233

1 should find for each tab a document in English and a document in B/C/S. I

2 note that at 51 it's a photograph, so we don't need a translation into

3 your own language, it's a photograph. But when it comes to a document, it

4 has to be provided in both languages. That's how I understood the

5 matters, but now I'm going to give the floor to Ms. Dahl, who's going to

6 give us some further explanation.

7 MS. DAHL: Your Honour, there's another matter that we need to

8 address before we get into the business of the trial, that is the matter

9 of the statement that is an exhibit on our exhibit list by witness,

10 Isak Gasi. We brought to the head of Chambers, the chef de cabinet, the

11 taking of a witness statement by Judge Harhoff in 1993 on behalf of the

12 Helsinki Committee, the Danish Helsinki Committee. We asked for an

13 opportunity to be heard and have this matter resolved before any witnesses

14 were called or the trial resumed. My expectation was that that was the

15 first order of business today.

16 JUDGE ANTONETTI: [Interpretation] Please explain what it's all

17 about.

18 MS. DAHL: One of the Prosecution witnesses, Isak Gasi was

19 interviewed in May 1993 by individuals identified as Eric Siesby and

20 Frederick Harhoff on behalf of the Danish Helsinki Committee. Shortly

21 after the interview, the committee sent the statement to the UN commission

22 of experts under a cover letter signed by Mr. Siesby as chair of the

23 committee and entitled First Report of the Danish Helsinki Committee.

24 This commission of experts later recommended the creation of the ICTY,

25 this Tribunal, based on an investigation into an evaluation of evidence of

Page 2234

1 war crimes and crimes against humanity in the former Yugoslavia.

2 The statement taken by the Danish Helsinki Committee is styled as

3 a witness statement and recounts an interview of Isak Gasi about the

4 take-over of Bijeljina and Brcko, it includes information about the

5 activities of paramilitaries such as Chetniks commanded by Vojvoda Mirko

6 Blagojevic and Mile Gatarevic, who is identified as a local Serbian

7 Radical Party member from Brcko. The Danish Helsinki statement recounts

8 in detail crimes during the take-over and identifies both perpetrators and

9 victims. A statement was disclosed to Mr. Seselj during the pre-trial

10 process, and it appears on Prosecution exhibit list under 65 ter number

11 1.852. We request information about the purpose and scope of

12 Judge Harhoff's activities in relation the Danish Helsinki Committee. The

13 Judge's CV available from the tribunal on its web site makes no reference

14 to the Danish Helsinki committee or any work that the judge may have done

15 on behalf of the commission of experts or in any other capacity in

16 association with the Danish Helsinki Committee. The statement itself does

17 not identify any sources other than the interview with Gasi for the

18 information that it provides.

19 In 1995, Witness Gasi provided the ICTY with a statement about the

20 same events. Some things he said were inconsistent with the Harhoff

21 statement. He also provided details absent from the Harhoff statement.

22 Witness Gasi has testified in both Milosevic and Krajisnik. He was

23 cross-examined extensively about inconsistencies between the ICTY

24 statement and the one presented by the Danish Helsinki Committee. In this

25 case the Prosecution will call Witness Gasi to testify about the take-over

Page 2235

1 of Brcko and Bijeljina by Serb forces and the subsequent killings,

2 detention, tortures of persons there. Mr. Gasi will link some of the

3 perpetrators to Mr. Seselj. Although the locations of these particular

4 crimes were removed from the indictment by the Trial Chamber's 73 bis

5 decision of 8 November 2006, the decision still allows the Prosecution to

6 lead pattern evidence about the systematic nature and coordination of the

7 attacks among the Serb forces. Mr. Gasi's public testimony in Milosevic

8 and Krajisnik recounts that Mr. Gasi repeatedly distanced himself and

9 criticised the Danish Helsinki statement because of what he characterized

10 as mistakes in what he was reported to have said about the events. In

11 both cases, the Defence pointed out numerous specific discrepancies when

12 questioned about specific details in the Helsinki statement that

13 conflicted with his testimony Gasi stated, for example: "I never said

14 that," or, for example: "I don't know how that information got there."

15 During the Milosevic testimony, Mr. Gasi specifically said he did

16 not abide by the statement, that the interviewers used very poor

17 interpreter, that the statement contained many things he never said and

18 other mistakes. Mr. Gasi suggested that the statement must have been

19 compiled from statements of other people as well.

20 During Krajisnik, the witness reiterated that the Danish Helsinki

21 statement contained mistakes, that he had never been asked to read or

22 correct it, and that he wished he had been given an opportunity to make

23 corrections in the statement.

24 There are other inconsistencies that are material to the witness's

25 evidence and credibility in the Seselj case. We have concerns that Judge

Page 2236

1 Harhoff's prior association with the investigation into the events in

2 Brcko and Bijeljina and his interview of this witness places him in the

3 invidious position of having to judge the results of his own work. We

4 consider therefore that the Judge should withdraw himself under Rule 15(A)

5 which provides that a Judge may not sit on a trial in any case in which he

6 has a personal interest or concerning which Judge has or has had any

7 association which might affect his or her impartiality. The Judge shall

8 in any such circumstance withdraw and the President shall assign another

9 Judge to the case.

10 The Prosecution considers that there is no actual bias. The

11 concern is, however, that not only that justice be done but that justice

12 be seen to be done. Both the Prosecution and Mr. Seselj have the right to

13 a fair hearing which encompasses the right to be tried by an independent

14 and impartial Tribunal. The principle, broadly speaking, is that one

15 cannot conduct an investigation into a crime and also sit as a Judge who

16 needs to determine the credibility of the results of that investigation,

17 even if the crime is being prosecuted now by a different agency. It is

18 the independence of the judiciary that is at stake here, not only whether

19 there is an appearance of bias. Here there is evidence that the Judge

20 investigated the same events being tried in this case and collected

21 evidence from at least one of the Prosecution witnesses. Because of the

22 requirement that Judges be independent from the Prosecution, they cannot

23 have played any role in the investigation of the facts and circumstances

24 leading up to the inception of criminal proceedings and their later trial.

25 In many civil law countries, persons who have been associated with a case

Page 2237

1 as a police officer or an official within the public prosecutor's office

2 are categorically disqualified as a matter of law from serving as a Judge

3 in the case. In common-law countries the test is the same but described

4 as the appearance of partiality or an objective basis on which to

5 apprehend bias.

6 Further, the European Court of Human Rights has found violations

7 of the requirement of independence where a Judge has had a prior

8 association with the case as a prosecutor or as a Pre-Trial Judge making

9 assessments of the weight of the evidence for the purposes of extending

10 pre-trial detention. I think that this issue needs to be raised.

11 Mr. Seselj needs to have an opportunity to be heard on this specific

12 matter, and certainly it is appropriate for there to be full disclosure to

13 determine the situation with clarity.

14 JUDGE ANTONETTI: [Interpretation] Fine. I've listened with great

15 interest to what you've just said, but I need a clarification from you.

16 You are putting forward this request under Rule 15(A) or 15 (B)(i)

17 because it's not the same? Under 15(A) we have a Judge who decides to

18 withdraw of his own accord because he believes that he should not sit in a

19 case. I've done so myself in the Gotovina case because I had been a Judge

20 in Mr. Gotovina's case when he was absent in France. And when I was

21 notified that I would be sitting in his case here, I decided to withdraw

22 under Rule 15(A). But in this case we have a Judge who decides to

23 withdraw, but in other cases it's for the parties, the Defence or the

24 Prosecution, to make a request and to ask the Presiding Judge for the

25 withdrawal of the Judge. So what is your request? Is your request based

Page 2238

1 on 15(A) or on 15(B)(i)?

2 Then you have to state things very clearly as they are if you are

3 asking the Judge to be withdrawn, to be disqualified.

4 MS. DAHL: Our request is under 15(B)(i), we are making an

5 application to the Presiding Judge of the Chamber for disqualification and

6 withdrawal of the Judge of that Chamber upon the grounds I have just

7 stated.

8 THE ACCUSED: [Interpretation] May I?

9 JUDGE ANTONETTI: [Interpretation] I'll give the floor to you later

10 on, Mr. Seselj, and I may give the floor to my fellow Judge if he wants to

11 take the floor.

12 Let me read out Rule 15(B)(i): "Any party may apply to the

13 Presiding Judge of a Chamber for the disqualification and withdrawal of a

14 Judge of that Chamber from a trial or appeal upon the above grounds. The

15 Presiding Judge shall confer with the Judge in question and report to the

16 President."

17 Next paragraph: "Following the report of the Presiding Judge, the

18 President shall, if necessary, appoint a panel of three Judges drawn from

19 other Chambers to report to him its decision on the merits of the

20 application. If the decision is to uphold the application, the President

21 shall assign another Judge to sit in the place of the Judge in question.

22 "The decision of the panel of three Judges shall not be subject to

23 interlocutory appeal.

24 "If the Judge in question is the President, the responsibility of

25 the President shall be assumed by the Vice-President," and so on and so

Page 2239

1 forth.

2 That's the procedure here. You have applied orally to me

3 according to this Rule, and I am to confer with my fellow Judge before

4 reporting to the President of the Tribunal. Having said that, I am now

5 going to give the floor to Mr. Seselj because he's the interested party

6 here.

7 THE ACCUSED: [Interpretation] Mr. President, for almost five years

8 I have been waiting for the beginning of this trial, and now finally when

9 this trial has begun it turned out that the Prosecution is completely

10 unready, and they now want to drag their feet and take a break. They're

11 absolutely not ready. They don't have a single witness or expert witness

12 who is ready to be heard here. I've waited for too long. I don't feel

13 like waiting any longer, and I don't want to wait any longer and I'm

14 stating that officially to inform you.

15 Second, the Helsinki human rights organ, Danish or any other, is

16 not a judicial body; it's a so-called non-governmental organization. That

17 Helsinki Committee does not investigate. It is engaged in political

18 marketing, and on that ground it took statements from certain people for

19 certain political purposes. The reports of the Helsinki Committee and the

20 statements taken by it cannot be relevant for any court of law, those are

21 not statements resulting from investigative proceedings. There are no

22 statements whatsoever in terms of any national law or the Rules of

23 Procedure and Evidence of this Tribunal. And thirdly, and most

24 importantly, a few days ago I was served with a third amended indictment.

25 In that third amended indictment there is no Brcko and Bijeljina at all.

Page 2240

1 Brcko and Bijeljina existed in the second amended indictment, and the

2 Trial Chamber who was in charge then decided to abbreviate the indictment

3 by one-third; so Brcko and Bijeljina were deleted together with Samac and

4 Western Slavonia, but it was said the Prosecution may lead evidence as to

5 the pattern of conduct, not the crime base though. You as the Pre-Trial

6 Judge confirmed the decision that only evidence on the pattern of conduct,

7 my conduct in terms of this joint criminal enterprise may be led, but not

8 crime base evidence. However, several days ago I received the third

9 amended indictment pursuant to an order of the Trial Chamber from November

10 which I have not received yet, by the way. I suppose that's your decision

11 concerning my objection to the form of the indictment, if that decision is

12 ready at all. I received the third amended indictment. There is no

13 Bijeljina, Brcko, Samac, or Western Slavonia. The decision to lead

14 evidence on the pattern of conduct in these locations applied to the

15 second amended indictment and the second abbreviated, modified indictment,

16 and that decision cannot apply to the third amended indictment. As far as

17 the third amended indictment is concerned, we're starting from scratch.

18 And the Prosecution now wants to lead all the witnesses whose testimony

19 relates to Brcko, Bijeljina, Samac, and Western Slavonia, an enormous

20 number of witnesses, crime base witnesses for these locations, and that

21 has nothing to do with the indictment against me. What am I defending

22 myself against then? Look at the third amended indictment. There is no

23 charges concerning Brcko and Bijeljina. Whether Mr. Harhoff as an

24 activist of an international organization, non-governmental organization

25 discussed this with anyone is a matter of absolutely no consequence to me.

Page 2241

1 I'm not interested. If I ask for the recusal of one Judge or the entire

2 Trial Chamber that will more likely happen concerning Prosecution

3 witnesses who are not supposed to appear in this courtroom at all. All

4 the rest are trifles. The Prosecution now wants a break apparently

5 because I suppose that must happen if all the conferring is to take place

6 and the President of the Tribunal is to make its decision. I believe that

7 this game with my nerves must stop, and I don't want to participate in

8 that game any longer. I want to cross-examine here Prosecution witnesses

9 and nothing more. If the third amended indictment has been issued, then

10 please don't mention to me incriminations concerning Western Slavonia,

11 Brcko, Bijeljina, Samac, because I'm not preparing for that. I even told

12 my associates: Don't deal with that any longer. I cannot deal with

13 everything and everyone. I'm dealing only with things contained in the

14 indictment, so let the Prosecution finally focus on the indictment and let

15 them adjust their witnesses and the number of their witnesses to the

16 actual charges, otherwise this trial will take five more years if the

17 Prosecution is allowed to do as they please.

18 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, to sum up what you

19 have said, you believe that this procedure is going to postpone the trial

20 once again. Secondly, you are saying that the two places in question are

21 no longer in the indictment and that the Prosecutor does not have to

22 establish anything about the crimes that may have happened in these two

23 places; however, you're also recognising that a decision of the Chamber

24 enables Prosecutor to lead -- to present any witness regarding the joint

25 criminal enterprise. Thirdly, you say that this Helsinki Committee is a

Page 2242

1 political committee, if I understood you right, according to you this is

2 not a legal body in any sense of the word. So all in all, I believe that

3 you would like the Chamber to turn down the request made by the

4 Prosecution, right?

5 THE ACCUSED: [Interpretation] But may I add something? The

6 decision you mentioned which you handed down concerning the second

7 abbreviated, modified indictment which the previous Trial Chamber handed

8 down concerning the second modified, amended indictment can no longer

9 refer to the third amended indictment, and I am asking you to take note of

10 that as a Trial Chamber. There is no point in presenting any evidence

11 concerning the pattern of conduct as it relates to charges which are no

12 longer in the indictment because then you can have evidence concerning my

13 pattern of conduct in my own home, for example, that's as regards this

14 issue.

15 Furthermore, what is happening here is evidently obstruction of

16 this trial by the Prosecution; that's how I see it.

17 [Trial Chamber confers]

18 JUDGE ANTONETTI: [Interpretation] I will now give the floor to my

19 fellow Judge, who will give us his position. Then we will break until

20 tomorrow in order for me to talk to the President of the Tribunal, because

21 now I have to report to the President of this Tribunal. Before giving the

22 floor to my colleague, my fellow Judge, Mrs. Dahl, you had something to

23 add?

24 MS. DAHL: Yes, Your Honour, I do not read the rules as

25 authorising a statement by Judge Harhoff with all due respect under Rule

Page 2243

1 15 except that if he wishes to withdraw himself under Rule 15(A). And I

2 would note that it is not only Mr. Seselj who is the interested party, the

3 Prosecution also has the right to a fair trial before an independent and

4 impartial Tribunal. I need to express my concern that Mr. Seselj have

5 fair and adequate notice of this issue so that he may frame a fully

6 informed response to it. He should have the opportunity to read the

7 statement and study the cross-examinations of the witness in the public

8 record.

9 JUDGE ANTONETTI: [Interpretation] Fine.

10 [Trial Chamber confers]

11 JUDGE HARHOFF: Thank you, Mr. President. Despite the objections

12 of the Prosecution, I think that I nevertheless for the record should add

13 a few comments to the role that I have played in the taking of a statement

14 from a witness. Let me start out by saying that when I accepted

15 assignment to this trial, I was unaware of the facts that Mr. Gasi was to

16 be called as a witness. So I could not have foreseen the situation that

17 has now arisen in relation to the evidence offered in this trial by the

18 Prosecution as regards the testimony that came out from the interview with

19 Mr. Gasi.

20 Secondly, I wish to clarify that in 1993, I was a young associate

21 professor in international law at the University of Copenhagen and in that

22 position I did some pro bono work for the Danish Helsinki Commission; and

23 as I recall the national Helsinki Committees in the member countries had

24 received a call from the Helsinki Commission in Helsinki at the time to

25 seek evidence from refugees in these respective countries about the events

Page 2244

1 that they had witnessed before they fled their home country. And it was

2 in response to this request from Helsinki that the national Helsinki

3 Committees, including the Danish national Helsinki Committee went ahead

4 and made an address to the refugee institutions where refugees from the

5 former Yugoslavia were residing. And in my recollection, there were a

6 few, I can't remember precisely the number of refugees who actually

7 reacted to the address that was made by the Danish Helsinki Committee, but

8 I think it was some eight, maybe ten, persons who came forward, and

9 Mr. Gasi may well have been the first one. I took part in one or two of

10 these interviews, and I do recall the interview with Mr. Gasi. I was not

11 taking part in the entire part of the interview, but only part of it

12 because as I recall Mr. Gasi's wife was also there, so I was entertaining

13 her outside the room for a part of the interview and then I joined the

14 interview at a later stage.

15 The interview -- sorry, the report made by Professor Siesby was

16 drafted by him and not by me, so I wish to correct the language of the

17 Prosecution in clarifying that there is no such thing as the Harhoff

18 statement. I was present during the interview but did not give any

19 statement.

20 Two or three weeks after the interview had been given,

21 Professor Siesby forwarded the statement or the testimony to

22 Professor Kalshoven and this was before the Tribunal was even established.

23 It was uncertain at the time whether the Tribunal would ever be

24 established and whether the interviews taken by the Danish Helsinki

25 Committee and other national Helsinki Committees would ever be used in

Page 2245

1 what was later to become the prosecution of war crimes committed in the

2 former Yugoslavia.

3 I think this clarifies my role in this -- in the taking of this

4 statement. Thank you.

5 JUDGE ANTONETTI: [Interpretation] Very well. So as I said, I will

6 immediately report to the President of this Tribunal, and the President

7 will decide what to do next. Either appoint this panel of three Judges so

8 that they render a decision or maybe he himself will appoint another

9 Judge, or he could also decide for the panel of this Bench to remain as it

10 is. But I believe that we cannot continue with this hearing. In order to

11 save time for Mrs. Dahl, Mrs. Dahl who is scrutinising the resumes of our

12 Judges, I did not do it myself, I did not scrutinise the resumes of the

13 Prosecution; but I can tell you, Mrs. Dahl, that I know absolutely none of

14 the witnesses that are in the list that you sent up, I have never been to

15 Belgrade, I did not know Mr. Seselj before this trial; and I know

16 absolutely no -- none of these persons that are mentioned either as

17 victims or accused. However, in the list of witnesses there is an expert

18 witness Mrs. Ewa Tabeau, she is a Prosecution witness, and she's already

19 testified in a number of cases here; and I have already met her in the

20 Prlic case. So if you want to disqualify me also, you could make the same

21 request because I have already heard of Mrs. Tabeau.

22 MS. DAHL: Your Honour, I draw a very careful distinction between

23 information received by Judges qua judging and the line that separates

24 investigation and documentation of war crimes and the judging of the

25 prosecution of those war crimes that follows that investigation.

Page 2246

1 JUDGE ANTONETTI: [Interpretation] Very well.

2 Before giving the floor to Mr. Seselj, I must say that we will

3 soon adjourn.

4 THE ACCUSED: [Interpretation] I don't know, Mr. President, how

5 long this break will be, but I insist and demand, and I wish this to be

6 treated as my formal oral motion, while this issue is being discussed the

7 Trial Chamber should also decide what will happen with the witnesses that

8 the Prosecution wants to call who will testify about the crime base in

9 places no longer in the indictment. I wish everything to be made clear

10 because this way I don't know what to prepare for and what not to prepare

11 for. And secondly, that the issue of putting the transcripts on the

12 internet be resolved. I have already made written submissions which

13 contain a report by my collaborators showing the catastrophic mistakes

14 made both by the French and the English interpreters in the transcripts.

15 In the last session when Oberschall was being questioned the transcripts

16 were not on the internet and my collaborators were unable to do anything.

17 I want each and every testimony to be checked by my collaborators. I

18 cannot do that looking at the monitors here because I speak neither

19 English nor French; however, the errors are disastrous, and I think that

20 the interpretation service has to be changed, altered accordingly. I have

21 also submitted to you a CD where you can hear how the members of the

22 interpretation teams laugh loudly, commenting on statements made by me and

23 the things they say about that. So I want all this to be resolved before

24 we continue hearing witnesses.

25 JUDGE ANTONETTI: [Interpretation] Very well. Regarding this first

Page 2247

1 request on witnesses that would come to testify about places that are no

2 longer in the indictment, I will render a decision when the Bench -- when

3 all three of us sit. I'll do that tomorrow.

4 The second question regarding errors in translation and

5 interpretation, you have made a great number of submissions, quoting about

6 50 errors in translation. I was quite surprised when I read this. Of

7 course the Trial Chamber will look into that and check all this.

8 Now, regarding the transcript, from what I've understood what I'm

9 talking -- what I'm saying is being listed on the screen in English, and I

10 believe that in realtime your associates in Belgrade can have access to

11 this screen. Normally with the system they have now they can have a

12 direct access to the screen as it is now, and therefore they can control

13 what is being said -- what is -- how you're -- what you're saying is

14 interpreted into English. Last time you told me that the broadcast system

15 was not working because in Belgrade they could not listen to the audio

16 part of what was said. I was quite surprised, so I asked for registry to

17 explain what was happening and this is what I was told. Please listen

18 carefully.

19 At first the Trial Chamber had granted to an NGO the broadcast --

20 the internet broadcast of these proceedings and this NGO was Domovina; so

21 this NGO, Domovina, was in charge of the entire system. The logistics

22 involved are as follows: In a courtroom there are machines to do this,

23 and according to what I've been told these machines are obsolete and this

24 is why the audio transmission does not always work. I will ask registry

25 to solve this immediately and find a solution -- at least I did that and I

Page 2248

1 believe that's what registry has now just done. Now it works because now

2 it is the Tribunal that is in charge of managing the broadcast over the

3 internet, it's not Domovina anymore, which means that anyone in Belgrade

4 30 minutes after the hearing has started must be able to listen in B/C/S

5 to what is being said. And your associates must have the sound in B/C/S

6 and they can also have the translation on screen into English of what is

7 being said. This is how it works. Now, if your associates still run into

8 problems, please tell me so that together with the Registrar and my fellow

9 Judges I can find a solution so that you can defend yourself properly.

10 But we cannot hear this witness given the request that has to be put to us

11 by the Prosecution. Right after the hearing is adjourned I will report to

12 the President of the Tribunal. I hope that the President of the Tribunal

13 will render a decision today, and we will meet tomorrow at 2.15. Tomorrow

14 at 2.15, I will give my decision on the subject that you mentioned earlier

15 and I will tell you where we stand regarding this disqualification

16 procedure. Either the President of the Tribunal will have kept the panel

17 as it is and then we will hear the witness or will have seized a panel of

18 Judges and then there will be a referral until this panel of Judges makes

19 its final decision but this is not my competence anymore.

20 Mrs. Dahl.

21 MS. DAHL: I wanted to make two points. First that Witness Isak

22 Gasi's name has always appeared on all of the Prosecution's witness lists.

23 He is listed in our final list that was filed at the beginning of 2007.

24 Second, the accused's objection to our calling Witness Gasi and other

25 witnesses who will speak to so-called pattern evidence ripens the issue of

Page 2249

1 apprehension of bias which I consider a distinct issue from the

2 requirement of independence. Judge Harhoff cannot rule on whether the

3 Prosecution can call witnesses to establish a pattern and coordination of

4 take-overs and crimes in other localities that is permitted under the

5 decision applying Rule 73 bis to this case. He has undoubtedly

6 [indiscernible] interest in that.

7 JUDGE ANTONETTI: [Interpretation] That's what you -- that's your

8 point of view; others could have a different point of view.

9 MS. DAHL: I just want to make clear, Your Honour, I appreciate

10 that this is our submission. My first submission was based on the notion

11 of independence, the requirement that Judges be independent of the

12 investigation and Prosecution of war crimes. I am now adding a second

13 argument to the motion which is that the potential for appearance of bias

14 has now ripened because of Mr. Seselj's objection to calling a witness

15 such as Mr. Gasi to establish the so-called pattern evidence. That brings

16 into -- brings Judge Harhoff into the unfortunate and unenviable position

17 of having to choose between eliminating Mr. Gasi from this case to avoid

18 criticism of the Helsinki statement and allowing the Prosecution to call

19 compelling, probative, and reliable evidence of war crimes in this case.

20 THE ACCUSED: [Interpretation] Mr. President, the Prosecution does

21 not have absolute liberty to call witnesses in these or any other

22 proceedings. The Prosecution has the right to call only those witnesses

23 which may justifiably be deemed to be able to offer relevant testimony.

24 If it is known in advance that the testimony of a witness will not be

25 relevant because it does not relate to counts in the indictment and the

Page 2250

1 charges in the indictment, then it makes no sense to call that witness and

2 such a witness cannot be called. Looking at it from the theatrical point

3 of view, tomorrow the Prosecution can find three people who were involved

4 in a fierce conflict with you, Mr. Antonetti, and Ms. Lattanzi, and

5 Mr. Harhoff, they could find three people, people who have never seen me

6 in their lives or know anything about me; but they can call them here in

7 order to have this as a ground to exclude the Judges. And only when these

8 witnesses turn up here will we realize that their testimony is not

9 relevant. That's why we have witness statements here in advance, and we

10 can see what they say has nothing to do with the indictment, and the Trial

11 Chamber should reject such witnesses ex officio. However, the claim that

12 evidence as to the pattern of conduct can be presented in these locations

13 also is no longer valid in the case of the third amended indictment. It

14 might have held good in the case of both second indictments which were

15 amended and modified and their names are quite unwieldy, but now we are

16 starting ab ovo, we are starting from scratch. Not a single witness who

17 is not relevant for this indictment has any business in the courtroom or

18 do you want to waste my valuable time here in this way. Only witnesses

19 testifying to counts in the indictment can testify here.

20 JUDGE ANTONETTI: [Interpretation] Very well. As I said, we will

21 meet tomorrow at 2.15. Thank you.

22 --- Whereupon the hearing adjourned at 3.12 p.m.,

23 to be reconvened on Wednesday, the 9th day of

24 January, 2008, at 2.15 p.m.