1 Thursday, 19 June 2008
2 [Closed session]
11 Pages 8469-8480 redacted. Closed session.
19 [Open session]
20 THE REGISTRAR: Your Honours, we are back in open session.
21 THE INTERPRETER: Microphone, please.
22 THE ACCUSED: [Interpretation] I'm sorry I didn't react on time.
23 I perhaps could have told you this in closed session. But if necessary,
24 we can always go into private session, if there is any need for that.
25 JUDGE ANTONETTI: [Interpretation] Very well. As you wish.
1 You have the floor.
2 THE ACCUSED: [Interpretation] Judges, yesterday we received an
3 overview of the remaining Prosecution witnesses, and this list has been
4 revised and edited. There are no names of deceased persons, apart from
5 two, which marks some progress. However, this list was important for us
6 to be able to gauge the real intentions of the Prosecution, because if
7 you look at the time remaining and if you take into account that there
8 are 72 remaining witnesses, or 70 minus the two deceased ones, the
9 Prosecution has 136 hours, which means that they actually need more time
10 than was allotted to it. And we need to go to the bottom of what the
11 Prosecution intends.
12 Secondly, there are Defence witnesses on this list. I know that
13 you wrested some of witnesses from me, that some witnesses were turned
14 into Court witnesses, that subpoenas were issued to some, but there are
15 quite a few witnesses that are still Defence witnesses on the Prosecution
17 Third thing: Witness 027, I will not mention his name, I don't
18 understand English, but it says "pending TC decision on subpoena." It
19 should actually be pronounced "subpoena," but it is a well-known fact
20 that the English do not know how to pronounce Latin, so they say
21 "subpoena." So, at any rate, a subpoena is pending for this witness, and
22 you know that this witness did not testify -- could not testify at the
23 Vukovar 3 trial, and I received the judgement in Serbian so I was able to
24 see what's going on. And now we need to see what the Prosecution wants
25 to do. We know that the witness was supposed to testify under 92 ter,
1 but we now have a decision that has to be made.
2 This issue of renewed 92 ter requests or motions is a repetitive
3 one. This problem is actually the fourth thing that I want to raise.
4 This has escalated drastically pertaining to two sites where some crimes
5 were committed in Bosnia and Herzegovina, in Nevesinje and in the broader
6 Mostar region. I'm charged with those crimes. Let's look at the
7 Nevesinje case.
8 The first witness, 029, this witness has been a Defence witness
9 for a long, long time. All the other witnesses are supposed to testify
10 under 92 ter. For three, this motion was granted, and for the fourth
11 one, there will be a new motion, so there will be no viva voce witnesses
12 for Nevesinje if you grant the fourth motion for Witness 092.
13 As far as Mostar is concerned, the situation is the same. You've
14 already granted their 92 ter motion for three of them. For the fourth
15 one, it was partially approved. That's Witness 1069. And then the
16 Prosecution notes that there is a consolidated 92 ter motion. So there
17 is only one witness to testify viva voce.
18 We come to the fifth issue. You ordered the Prosecution to first
19 call witnesses who will be testifying live, whose evidence will contain
20 everything. They will present everything in examination-in-chief, and
21 92 ter witnesses will be used only to corroborate things, yet in July, we
22 have first 92 ter witnesses for Herzegovina and then the remaining one
23 who is supposed to testify viva voce. However, in the column type, it
24 says "TBD," which means that the status is yet to be determined, which
25 means that they're hoping that things will change in this respect. I
1 find this quite hard to credit.
2 Sixth, I understood the point behind the question Judge Harhoff
3 asked of the witness that has just left, and I expected that this might
4 be raised in the examination-in-chief, but it was not. Judges, you were
5 able to see that the statements the Prosecution prepares have almost
6 nothing to do with the viva voce testimony. The Prosecutors, the
7 investigators, or Muslim state authorities say "Seselj's man" by rote,
8 and it gets into the statement. The witnesses are frightened, they don't
9 really pay much attention to it. A statement is read out to them, and
10 who can concentrate to be able to register everything that is being read
11 out to them? Most people are visual types, not -- they cannot really
12 hear things. Most people can concentrate if it's a long text only if
13 they have it in front of them. I am really envious of those people who
14 can register everything that they hear without taking any notes or
15 looking at any notes.
16 I had in front of me the statement of this man, who's still
17 alive, Judge Harhoff, and you can have it for your information, and you
18 can see that this man could not be a member of Seselj's men. I think it
19 would be a very good idea for you to look at it. I received it this
20 morning by fax. You can look at it in procedural terms, because I'm not
21 challenging the facts, just so that you can see how everything that is
22 said within the framework of the 92 ter procedure, how unreliable this
23 is. This is here just for your information. I'm not tendering this into
24 evidence, and that is why I believe it would be a good idea for you to
25 re-examine your decision on accepting 92 ter statements. And I still
1 abide by my initial decision not to cross-examine those witnesses.
2 I hope that I'm not boring you. I can see that I am, but I can
3 stop if that's the case.
4 JUDGE HARHOFF: It's never boring to listen to what you have to
5 say, but in respect of the witness's testimony about this gentleman, what
6 the Court will rely on is what the witnesses are telling us in
7 the courtroom, not what they may have put in a previous statement.
8 And I need not remind you that the purpose of using the procedure
9 in Rule 92 ter is exactly to have the witness come into the courtroom and
10 be ready to answer any question that any of the parties may have,
11 including the Judges, about what he wrote in his earlier statement.
12 So you are raising again a point which I think we have discussed
13 many times during this trial already, but in my view the point is moot
14 because, as I said, in the end what the Court will rely on is what the
15 witnesses tell us here in the courtroom viva voce, and this is why I
16 still think that you have ample reasons to use this opportunity and put
17 the questions to the witnesses when they are here. So if there is a
18 point in their statement that you wish to clarify or that you are
19 disputing, then put the questions to the witness and let's have the
20 witness's explanation, and that will then be what the Court will rely on.
21 JUDGE ANTONETTI: [Interpretation] One moment, please.
22 Mr. Mundis, I will hand you the floor in a few seconds, but I would first
23 like to address some of the issues that were raised by Mr. Seselj and
24 then by my colleague.
25 Mr. Seselj, rest assured that we are always listening to you, and
1 you are never boring us. From time to time, we may show a certain amount
2 of irritation if you are saying certain things, but we are always
3 listening to you, and we will continue to listen to what you have to say.
4 You've raised the Prosecution list -- you've raised the issue
5 about the Prosecution list, and I've noted with great interest what
6 you've said. Now, if I requested to obtain this list on many occasions,
7 it's because I have an objective. I wanted to know where we're going.
8 Some witnesses were already heard. Other witnesses are planned
9 to testify. And then other witnesses, and this is something which you've
10 highlighted, as far as I'm concerned, on a given municipality there
11 should be at least some viva voce witnesses, 92 ter or 92 bis witnesses,
12 and I agree with you that there should at least be a viva voce witness.
13 So in light of what you've told us, we will examine very carefully this
14 in order to see if it is necessary to have viva voce witnesses.
15 Now, for the victims that are -- that come to testify on what
16 happened to them, you've noticed that through the questions that the
17 Judges put to these people, and the Prosecutor, as well as yourself, we
18 are endeavouring to find out who are the authors of -- who are the
19 perpetrators of these crimes, and we always stay within the context. So
20 you have to bear in mind -- I know that you do, but since we have some
21 time now, let's take advantage of this so that I may tell you what
22 I think. You should bear this in mind, because the Judges bear this in
23 mind at all times.
24 Paragraph 8 on the joint criminal enterprise in the indictment,
25 and in that indictment all the members of the joint criminal enterprise
1 are enumerated, so independently of people such as Kadijevic, Adzic,
2 Mladic, and so on and so forth. It's not necessary now to name them all,
3 but there are other people who took part in the JCE; the Serb forces, who
4 are called JNA forces here, the Territorial Defence, the member of the
5 Serb and Montenegro TO, the local Serb police forces of the Republic of
6 Serbia and Republika Srpska, including the State Security, the branch of
7 the Ministry of the Interior of the Republic of Serbia, and Serb
8 Special Forces of the SAO Krajina called the Martic Police, and this is
9 what you should be careful about. If members of Serbian, Montenegrin,
10 Bosnian and Croatian Serb paramilitary forces, and listen carefully to
11 what is written there, volunteer units, so volunteer units, broadly
12 speaking, including Chetniks or the Seseljevci, meaning Seselj's men, so
13 these Seselj's men are part of the joint criminal enterprise, Seselj's
14 men. Who are these Seselj's men? It's through the witnesses that are
15 coming to testify that we will be able to determine -- we shall endeavour
16 to elicit who are these people, who are these Chetniks in the indictment.
17 In the judgement, of course, we'll have to answer to these questions.
18 In this indictment, in paragraph 8 it is stated the Seselj's men
19 and people who are mentioned participated in the joint criminal
20 enterprise and called people "Seselj's men" in order to understand the
21 criminal element of the crimes. This is what is written in the
22 indictment. So every time a witness comes to testify, we always try to
23 see where he belongs, according to this context, and in particular, as
24 far as you are concerned, every time a witness comes to testify, we try
25 to check if what is written in the indictment has -- or is based on
1 reality or not, because your role is defined in paragraph 10. I will
2 remind you, but you must know it, you participated in the recruitment,
3 formation, financing, supplies, support, and direction of Serbian
4 volunteers connected to the SRS or the SAP through war cells, called SRS.
5 These volunteer units were created and supported to assist in the
6 execution of the joint criminal enterprise through the commission of
7 crimes in violation of Articles 3 and 5 of the Statute of the Tribunal.
8 So we can see there already what you are charged with, what your
9 role was, so when a witness comes we have to see if he was recruited, he
10 was trained, and so on and so forth. So this is the first thing that we
11 must establish.
12 Secondly, it says that through inflammatory speeches in the media
13 during public events and during visits to the volunteer units and other
14 Serb forces in Croatia and Bosnia, "he instigated those forces to commit
15 crimes." So when a witness comes to testify, we try to see if indeed you
16 made inflammatory speeches, if he was influenced by these speeches, and
17 if this is a reality.
18 Thirdly, you are charged with encouraged the creation of a
19 homogenous Greater Serbia, and so on and so forth. I will not insist --
20 we already talked about it. And then 10(D), you would have made public
21 speeches, and you called for the expulsion of Croat civilians from parts
22 of the Vojvodina region in Serbia and thus instigated your followers and
23 the local authorities to engage in a persecution campaign against the
24 local Croat population, and you did here, according to the indictment,
25 engage in a persecution campaign against the local Croat population.
1 So when we have people who were expelled from their domicile,
2 from their municipality, we try to put all this back into context by
3 looking at, of course, what is written in the indictment.
4 10(E), it says that you participated in the planning and the
5 preparation of the takeover of towns and villages, so on and so forth.
6 We also try to see if you played any role with regard to the takeover of
7 towns and villages.
8 10(F), and I'm almost done, you would have participated in the
9 provision of financial, material, logistical and political support
10 necessary for such takeovers, so once again we try to see if that's, in
11 fact, the truth. And under (G), you would have recruited Serbian
12 volunteers connected to the SRS, and you would have indoctrinated them
13 with these extreme ethnic rhetorics against other people, and therefore
14 this contributed to the forcible removal of non-Serb population from
15 these territories through the commission of crimes as specified in the
16 indictment, with particular violence and brutality.
17 So we use this, and every time a witness comes, we try to see if
18 anything applies, if what is written in the indictment corresponds to
19 reality, through these witnesses and through questions that are put. So
20 this is how we proceed.
21 You now know how we proceed, but you know the procedure very well
22 as well. So when the witness is before us, we always attempt to find out
23 what happened, who are the perpetrators of various crimes committed, and
24 to what extent yourself or the SRS or the SRB may have been concerned,
25 through volunteers and so on and so forth.
1 So this is how we proceed, and of course we have to examine
2 evidence adduced by the Prosecution and we also listen to what witnesses
3 say and what documents are shown to them.
4 So I've calculated, and I see that the witnesses that are to
5 come, of course, go over the allocated time, and from memory I believe
6 that the Prosecution has 65 hours, at most. So 65 hours, at most, from
7 memory. And, furthermore, you gave us witness numbers. Thank you. We
8 don't have to redact, therefore. You didn't give us names, so I will
9 also refer to these witnesses by giving numbers.
10 Now we have a Court witness. The Court wanted to have this
11 witness heard, so we don't have to insist on that. We know this. But
12 there are other witnesses that the Prosecutor wanted to call, and these
13 witnesses decided to become Defence witnesses. You very rightfully so
14 said that with respect to Witness 027, there's a pending decision with
15 regards to that particular witness.
16 For now, in my mind, and I believe in the mind of my fellow
17 Judges as well, we have not dealt with or ruled on the merits, and I'll
18 tell you what the problem is. We have to find out if witnesses who
19 originally were Prosecution witnesses and who, themselves, of their own
20 volition, decided that they would be Defence witnesses, now, the
21 Chamber -- should the Chamber consider that these Prosecution witnesses
22 should first come as Prosecution witnesses?
23 There are two consequences to this, if we agree to do this, the
24 first consequence being that inevitably the Prosecution witness, who
25 would come to testify and who would immediately appear to be a Defence
1 witness, then he would become a hostile witness according to common law.
2 By being a hostile witness, the Prosecutor may put leading questions to
3 him, so that's the first consequence which we must assess, but I don't
4 have the solution to this problem yet.
5 The second consequence would be the following: I also do not
6 have a ready solution for this problem, but let's suppose that the
7 Prosecution would call many witnesses and they would all be hostile
8 witnesses. The allocated time given to the Prosecutor, which is
9 approximately 125 hours, if I'm not mistaken, so that time, the time for
10 the hostile witnesses, in fact that would be the time -- or the amount of
11 time that would be lost for the Prosecution, because if a witness is a
12 Defence witness, he cannot be at the same time a Prosecution witness. So
13 the Prosecutor would be losing time, so that's a time problem. So that's
14 the second issue. And for now, I haven't figured out a solution for that
16 The Chamber has to rule on this, because this is our problem.
17 Either the Trial Chamber decides that these witnesses are Prosecution
18 witnesses, with subpoenas and all the other consequences that ensue, or
19 the Trial Chamber decides to transform those witnesses into Court
20 witnesses, which creates now another problem. The Trial Chamber may
21 decide, very simply and very clearly through a ruling, to remove these
22 witnesses from the 65 ter list, deeming that these are Defence witnesses.
23 So I've explained now what's at stake. I've explained also the
24 various possibilities and consequences. For the time being, no decision
25 has been taken. These are matters that are very complex, and they're
1 actually quite unique when it comes to the history of this Tribunal. I
2 don't even think that we have any precedent in other cases or -- yes,
3 maybe there were other precedents, in the sense that some witnesses
4 became hostile witnesses. That was actually quite rare, maybe just a
5 few. But for a witness to come and say, "No, no, I was called by the
6 Prosecutor but I want to be a Defence witness," this happened for the
7 first time here, and furthermore, we have a large number of witnesses who
8 belong to this category. So the decision that we'll have to take will be
9 an important one. This is why it was very useful to ask the Prosecutor
10 to create a list, a chart, a consolidated chart, explaining his
11 intentions. He gave us this updated list, and the Chamber will be able
12 to use it and to rule.
13 The Prosecution sent you and to the Trial Chamber a planning
14 for -- or a schedule for the upcoming witnesses. I'm not going to give
15 you the exact situation as to protective measures. I don't know what
16 they will be. But next week we have Witness 1060. He's due to come on
17 Monday and Tuesday, and Wednesday we'll have Witness 1064. Then in July,
18 we will hear 92 ter -- or we'll have 92 ter Witness 1024, 1051, 1052,
19 1069, 1026.
20 The Trial Chamber is fully aware of your position. We will check
21 to see if, out of these witnesses, there are some viva voce witnesses, so
22 we will examine this question. And then the third week of July -- the
23 second week of July, correction, we have Witness 1012 [as interpreted].
24 He's supposed to come and testify for a few days, for three days. And
25 then the penultimate week of the month of July, we have Witness 009.
1 He's bound to come to testify on a Monday. And then 1067. And then the
2 last day of 92 ter, we have Witness 1022.
3 And then with respect to the last week of July, the last week of
4 July will only be a two-day week of hearing. We were not able to add a
5 third day, Mr. Seselj, because of scheduling problems and scheduling
6 conflicts with respect to courtrooms. This is why the Thursday hearing
7 had to be cancelled, which enables you to see your family if they come
8 and see you. You can tell them that on Thursday you are free, for
9 instance. So the last week of July will be a two-day week, and we will
10 hear Witness 048.
11 And then we will resume in August. We don't have the schedule
12 yet. I believe that the trial will resume on the 25th or on the 26th of
13 August. I don't have the exact date here. So we will resume on the 25th
14 or on the 26th of August, but with the schedule and upon looking at the
15 Prosecutor's list, the Prosecutor should end his case as of November,
16 early December; end November, early December. It's difficult to say
17 exactly, but we have to work with what we have right now, and then we
18 will see what the future hearings bring us.
19 So this was the updated list, as it is now, of course unless
20 there are different changes that have to be made because of illness or
21 other reasons. But normally this programme is what we have in store.
22 Mr. Mundis wanted to take the floor. I'll give him the floor,
23 and he can maybe tell us exactly where we stand or maybe provide us with
24 new elements.
25 MR. MUNDIS: Thank you, Mr. President.
1 Good morning, Your Honours, to Dr. Seselj and everyone in and
2 around the courtroom.
3 The Prosecution has a number of very brief issues in response to
4 what has transpired this morning.
5 First of all, let me return to the very first issue which
6 prompted me to my feet earlier. This goes to the issue of, again,
7 something that Judge Harhoff mentioned earlier. The Prosecution simply
8 would put on the record that as Judge Harhoff has indicated, our position
9 would be that if the accused chooses not to exercise his right to
10 cross-examine any witnesses, so be it, but it would be, therefore,
11 inappropriate for him, as he has done earlier this morning, to hand up
12 documents which could or should have been put to a witness once the
13 witness withdraws from the courtroom. So for the purpose of the record,
14 we would object to the accused foregoing cross-examination and then
15 subsequently handing up documents which he then indicates he doesn't
16 necessarily want tendered into evidence, but is simply providing
17 correspondence, or documents, or faxes for the benefit of the
18 Trial Chamber to help the Chamber understand things. That, in our
19 respectful submission, is an inappropriate way to proceed.
20 Let me turn, secondly, to the list that was provided yesterday.
21 There are obviously a number of additional witnesses whose names do not
22 appear on this list but which are deceased. Those witnesses are well
23 known to the Trial Chamber and to Dr. Seselj. Perhaps I should have put
24 those names on the list, but to the extent a comment made earlier by
25 Dr. Seselj to the effect that those witnesses will not be the subject of
1 subsequent 92 quater motion by the Prosecution is misplaced. We will, in
2 fact, be doing that, and perhaps the best course of action would be for
3 me to amend the list that was distributed yesterday to specifically
4 include the names of those individuals. There are one or two who have
5 subsequently deceased, and that status is reflected on the table. But to
6 the extent other persons who were on the original list are deceased, and
7 which is a fact that's well known, we will be making 92 quater motion
8 with respect to the testimony or statements of those witnesses.
9 Let me then turn to the broader issue of timing in this case. As
10 the Chamber is well aware, the original plan of the Prosecution in this
11 case, as set forth by my colleagues who originally had carriage of this
12 case, the Prosecution plan was for virtually every single witness on the
13 Prosecution's witness list to be a 92 ter witness; that is, every
14 witness's evidence would go in on paper. They would all be brought here
15 in order to be questioned by the accused and/or the Trial Chamber.
16 That's how the Prosecution originally came up with a time estimate of, I
17 believe, 125 hours for the presentation of its case.
18 Once the decision was taken by the Pre-Trial Chamber not to
19 allow -- or the Trial Chamber --
20 JUDGE ANTONETTI: [Interpretation] Just a minute, Mr. Mundis. I
21 believe there's some misunderstanding here. You were not, and neither
22 was I, actually, in the Orie Trial Chamber who started this case. Out of
23 memory, I think that they gave Prosecution, for their 65 ter list, 81
24 hours or something like that, but no more. So the trial, as it was
25 planned at first, allotted 80 hours to the Prosecution for its case.
1 When this Trial Chamber took over, we looked at all the problems, the
2 92 ter problem, what Mr. Seselj had said during the status conferences
3 and so on, and we decided then to allot much more time to the
4 Prosecution, which is how you ended up with almost 40 hours more than was
5 previously allotted. So this was integrated in the Trial Chamber's
6 decision, so I wanted to state this immediately.
7 MR. MUNDIS: Well, I stand corrected in that respect,
8 Your Honour, but the fact of the matter is there is absolutely no way
9 that the Prosecution can complete its case in the remaining 60 to 65
10 hours without extensive, and I underline the word, extensive use of
11 Rule 92 ter. It's simply not possible.
12 And to the extent that the Chamber may be inclined to issuing a
13 ruling at this point in time with respect to witnesses, we would
14 respectfully request a hearing where the parties can address the
15 Trial Chamber on that issue before a decision is taken. Obviously, a
16 decision to strike witnesses or make any further cuts in the time
17 allocated to the Prosecution would have rather serious implications at
18 this stage of the proceedings.
19 When I heard Your Honour indicate that the Chamber was about to
20 make a decision or was going to be considering making a decision in that
21 respect, I found that to be, quite frankly, a bit troubling, simply
22 because at this stage there is not any pending motion for the Chamber to
23 decide. And I understand the Chamber can, proprio motu, control the
24 proceedings, and that what the Chamber may have in mind is something very
25 much along those lines, but with respect to any decision that would cut
1 the amount of time available or strike witnesses from the Prosecution
2 list is a matter that, with all due respect, we believe we should be
3 heard on. And if that means cancelling a week of evidence in early July
4 in order to fully address this issue, that might very well be something
5 that we should consider doing.
6 I think it's very important to stress, and that the Chamber, I
7 believe, should be fully heard on this issue of what is colloquially
8 known as witnesses who've become Defence witnesses. The issue is not as
9 clear cut as it may seem at first. Clearly, the way the rules and
10 procedure are structured at this international tribunal, the fact that a
11 witness says he or she will come as a Defence witness does not
12 necessarily assist the Trial Chamber in reaching the decisions it has to
14 As the Trial Chamber knows, we have the 98 bis proceeding at the
15 halfway point, if you will. There is, of course, no guarantee that any
16 witness who Dr. Seselj says is a Defence witness will actually come and
17 testify, simply because obviously with the Rule 98 bis proceeding, there
18 might not be a Defence case at all if those witnesses don't come and
20 I also, however, want to put on the record the Prosecution's
21 position with respect to this general issue of witnesses who originally
22 appeared on the Prosecution list and for whom now some of them have
23 apparently indicated that they will be Defence witnesses. Again, to be
24 quite frank, I found it a bit troubling to hear the Presiding Judge
25 indicate that these witnesses, on their own volition, chose to be Defence
1 witnesses. The Prosecution does not accept that. The Prosecution, as
2 part of a motion to be filed by the end of next week, will put forth its
3 position with respect to a number of these witnesses.
4 JUDGE ANTONETTI: [Interpretation] Mr. Mundis, I said "on their
5 own volition." In my mind -- let's be clear about this so there's no
6 misunderstanding. In my mind, it's because there are written statements
7 by these people who, in writing, said: "I want to be a Defence witness
8 for Mr. Seselj." This is how you must interpret what I said when I said
9 "in their own volition."
10 MR. MUNDIS: Your Honours, we will be filing a motion no later
11 than the 27th of June, and it's our position that these witnesses are
12 being systematically coerced and that a campaign of intimidation is being
13 undertaken with respect to a number of witnesses. We are putting
14 together a rather detailed filing on this point, but the fact of the
15 matter is, it is the Prosecution position that these witnesses are not
16 freely and voluntarily providing these types of statements to the
17 Trial Chamber.
18 And so with respect to this issue concerning witnesses who were
19 originally on the Prosecution list and who now the accused is indicating
20 are Defence witnesses, is entirely, with all due respect, at this stage
21 premature. We will be making full and detailed submissions on this
22 point. That filing we anticipate will be made on or about the 27th of
23 June. And until that filing is before the Trial Chamber, again we would
24 respectfully ask for a deferral of any kind of ruling that would, in
25 effect, strike those witnesses from the Prosecution list or which would
1 result in any time being taken away from the Prosecution, because this is
2 an extremely serious matter, Your Honours, and we believe it's something
3 that needs the full attention of the Trial Chamber before any decisions
4 with respect to scheduling, timing, or witness lists be made. And that's
5 one reason why I would strongly and respectfully suggest that any
6 decisions concerning these matters that the Trial Chamber may be inclined
7 to make be deferred until after we have had an opportunity to fully
8 address the Trial Chamber on a number of issues, including the issues
9 that will be at the heart of a submission that we will be filing on or
10 about the 27th of June.
11 JUDGE HARHOFF: Thanks for this clarification.
12 From the Chamber's view, and I say this from a strictly judicial
13 point of view, the important thing for the Chamber is that the witnesses
14 who have something important to say in relation to the indictment, that
15 they come and testify. Now, whether they come as Prosecution witnesses
16 or Defence witnesses or Chamber's witnesses is a secondary matter, so
17 that we will then have to sort out. And I would like to repeat what the
18 Chamber already has said several times before; namely, that it is
19 inappropriate for the parties to have a rift about the witnesses. But
20 since you have raised the issue, Mr. Seselj, would it be possible for you
21 to identify which of the witnesses in the Prosecution's list that you
22 thought you would wish to call as your witnesses, so that we can at least
23 identify or narrow down and focus on the problem?
24 JUDGE ANTONETTI: [Interpretation] Yes. Mr. Seselj, if you have
25 yesterday's updated list, I mean, this can be a very quick process. You
1 can tell us such-and-such number, "I know they'll come and testify for
2 me." There are six pages, only six pages in that schedule. The first
3 one is 009, for example.
4 THE INTERPRETER: Microphone, please.
11 Page 8501 redacted.
20 [Private session]
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2 [Open session]
3 THE REGISTRAR: Your Honours, we are back in open session.
4 JUDGE ANTONETTI: [Interpretation] Very well. Now that we are
5 whack in open session, I would like to say that we are going to have a
6 20-minute break, and after the break we shall continue with the
7 housekeeping matters.
8 --- Recess taken at 10.02 a.m.
9 --- On resuming at 10.20 a.m.
10 JUDGE ANTONETTI: [Interpretation] Madam Registrar, could you
11 please go into private session. I have something to say in private
13 [Private session]
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14 [Open session]
15 THE REGISTRAR: Your Honours, we are back in open session.
16 JUDGE ANTONETTI: [Interpretation] Very well. Mr. Seselj, would
17 you like to continue in telling us who are the Defence witnesses?
18 THE ACCUSED: [Interpretation] Yes. First of all, I would like to
19 respond to the question of the Trial Chamber, and then I would like to
20 make a couple of more remarks based on the debate so far.
21 The Defence witnesses on page 1 are: 009, 004 [as interpreted],
22 017 [Realtime transcript read in error "015"], 014, 034, 048. That's on
23 page 1. So all six witnesses listed under "No specified crime base" are
24 Defence witnesses.
25 I move on.
1 JUDGE HARHOFF: I think I heard you say that you had intended to
2 call 017, and the transcript comes out "015," so I just wanted to make
3 sure. Look at your screen, Mr. Seselj. You can see the numbers there.
4 Are they correct?
5 THE ACCUSED: [Interpretation] Well, I don't know -- ah, yeah,
6 here it is. 009, 044, and it says "004." It's 044. 017, not 015. 014,
7 034 and 048. So all six witnesses listed under "No specified crime
9 Then we move on to the next page. Well, I'm not sure about 045.
10 031, you know full well the Prosecution indicated that this witness
11 stated he would like to be a Defence witness at the time when we were not
12 in contact with him. In the meantime, contact was established with him,
13 and he has been put on the Defence list. So that's Witness 031.
14 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, one moment, please.
15 I hadn't noticed this. What you said now enables me to see this. You
16 talk about 009 and 048. Those are Defence witnesses. As you know, the
17 Witness 009 is scheduled for July, and 048 is also scheduled for the
18 month of July, as a Prosecution witness.
19 THE ACCUSED: [Interpretation] [Previous translation continues]...
20 rule out the possibility that there are witnesses who present themselves
21 both as Defence witnesses and as Prosecution witnesses. The key thing is
22 whether the Prosecution really had reached an agreement with them to come
23 here and testify at the time. So I can't rule out the possibility of
24 some surprise being sprung on me, but these are people who gave
25 statements to my Defence team and who stated quite firmly that they
1 intended to come here as Defence witnesses.
2 JUDGE ANTONETTI: [Interpretation] Very well.
3 Mr. Mundis, you see how useful it is to have this debate. You
4 put on the list two witnesses. Did you or had you ever received a
5 confirmation that these people would come on those days?
6 MR. MUNDIS: Yes, Your Honour. We have been in contact with all
7 of these witnesses that have been scheduled, and the witness coordinator
8 on my team has, in fact, confirmed that they'll be here. This goes to
9 the bigger point that I raised earlier this morning when we were
10 discussing these witnesses that the accused indicates are Defence
11 witnesses. That is not necessarily the truth with respect to all of
12 them. We will be making a filing. Our view is very clear that some of
13 these witnesses have indicated that they have been pressured, intimidated
14 and coerced into providing statements indicating they're Defence
15 witnesses, and for that reason we believe that this discussion very well
16 might be premature until such point in time as we can put before the
17 Trial Chamber all of the information concerning these witnesses so that
18 decisions can be taken with respect to how to proceed.
19 JUDGE ANTONETTI: [Interpretation] So, Mr. Seselj, the situation
20 that we are facing today is the following: If, in fact, 009 and 048 told
21 you that at some point in time they were Defence witnesses, it would seem
22 that now, following the last update, that they are confirming their
23 arrival as Prosecution witnesses. So this is a new element which seems
24 to be creeping up.
25 THE ACCUSED: [Interpretation] Judges, if that is the case, they
1 will appear here in the time slots indicated by the Prosecution. But as
2 far as pressure on witnesses is concerned, any attempt to exert pressure
3 on witnesses is a crime. Defence may exert pressure on witnesses, but so
4 can the Prosecution.
5 I have presented a lot of evidence to you to indicate that the
6 Prosecution has been pressuring witnesses, and you saw a number of
7 examples where the written statements taken by the Prosecution and the
8 testimony provided by the witness in the courtroom did not tally. We
9 will see how this proceeds, but if there is any suspicion that pressure
10 is exerted on witnesses, then an investigation has to be carried out and
11 we have to see what's going on.
17 JUDGE ANTONETTI: [Interpretation] Just a minute, Mr. Seselj.
18 We're in public session, so these questions may be resolved very easily.
19 When the witness will come, I will put questions to him. We will
20 all put questions to this witness, asking him to explain, first of all,
21 "Why did you say that you wanted to be -- that you were going to be a
22 Prosecution witness, and then why did you write a letter to the Defence
23 of Mr. Seselj stating that you were now a Defence witness? And, thirdly,
24 why are you now something else?" So he will tell us, himself, and we
25 will find out then.
1 We'll see clearly what happened when these people are before us.
2 This is what we have done so far with all the witnesses that came. Every
3 time a witness came, we asked questions. You, yourself, did the same
4 thing. We put questions to them about eventual pressures and what may
5 have happened. And if I remember correctly, I even asked a witness
6 recently if there were some phone calls or if some pressure was exerted
7 on him, and he said, "No."
8 So the Trial Chamber will do its job, work, and two people,
9 therefore, are planned to come, scheduled to come. We will put
10 questions, and this will enable us to shed some light on that issue. And
11 you, yourself, of course, will be able to tell us what goes on.
12 So we've seen the first two, so -- and for the other people?
13 THE ACCUSED: [Interpretation] The last witness I mentioned is
14 031. Then we move on to the next page. According to my information --
15 JUDGE ANTONETTI: [Interpretation] Wait a minute. 031, and he is
16 on ...
17 THE ACCUSED: [Interpretation] Page 2.
18 JUDGE ANTONETTI: [Interpretation] Yes, yes, I've found him.
19 THE ACCUSED: [Interpretation] Then Witness 039 on page 3,
20 according to my information, this witness is dead, he died.
21 JUDGE ANTONETTI: [Interpretation] So 039 would have been
23 THE ACCUSED: [Interpretation] Well, according to my information,
24 and the Prosecution should check this, because as I had indicated
25 earlier, that I -- every time I indicated that according to my
1 information, the witnesses were dead, deceased, then it turned out to be
2 true. I don't have this person's death certificate, but I'm reasonably
3 certain about that.
4 Witness 032 is a Defence witness, and he appeared in public in
5 that capacity already.
6 Now, the Prosecution has not provided names for Witnesses 1066
7 and 037. According to my information, at least one of those two
8 witnesses is a Defence witness, and I can't tell that because I don't
9 have their names. At least one of those witnesses.
10 THE INTERPRETER: Interpreters note, could all microphones in the
11 courtroom, apart from the accused, be switched off.
12 THE ACCUSED: [Interpretation] The Prosecution has also -- well,
13 there is a copy of that notice, anyway.
14 And there is nobody on page 4, I think.
15 At page 5, 029, that's the first witness listed on page 5.
16 That's the only witness that is envisaged as a viva voce witness for
17 Nevesinje. He has been a Defence witness for over -- for almost two
18 years. All the others are 92 ter witnesses. And there's nothing else on
19 that page, I think.
20 On the last page, 026, and the two witnesses listed as Court
21 witnesses. Well, you prohibited me from listing him as my Defence
22 witness, at least the first one.
23 So these are the people whose statements I have, people who are
24 collaborating with my team, assisting me by providing materials to use in
25 questioning other Prosecution witnesses. They have helped me immensely.
1 They point to some people who might provide some other information,
2 things of that nature.
3 The basic reason why I initiated this procedural discussion is
4 now in the background, it's been pushed into the background because of
5 the new issues that have cropped up.
6 Could you please look at the June and July schedule provided this
7 morning to us by the Prosecution. In the first week of July, we have
8 five witnesses that are supposed to testify under Rule 92 ter. As far as
9 I can recall, all five of them are to testify about the war in
10 Herzegovina, and I think that they're all victims. And we have yet to
11 hear a single viva voce witness to testify about Herzegovina.
12 And let me remind you of what you said -- the first thing that
13 you said, the first decision that you rendered: That first we have to
14 hear viva voce witnesses and then the 92 ter witnesses.
15 JUDGE ANTONETTI: [Interpretation] Very well. Thank you for
16 drawing our attention on that matter. My fellow Judges and myself will
17 look at these five, because there are five of them, to see if one or two
18 of these witnesses should appear viva voce. Otherwise, there would be
19 absolutely no viva voce witnesses testifying on that area.
20 This being said, we have ample time to visit this issue, and I
21 will tell you very shortly what our decision will be with regard to this.
22 THE ACCUSED: [Interpretation] Judges, I assume that you recall
23 the case of Witness -- I don't have his pseudonym, but I think that he
24 testified in public, in fact. On the 10th of March, you rendered your
25 decision that he should testify viva voce because the Prosecution wanted
1 to call him as a 92 ter witness. Could the Prosecution please confirm
2 whether this witness did testify in public session, with no protective
3 measures, so that -- because I don't want to make any blunders. That's
4 the witness who was saved by the Leva Supoderica Detachment after a gang
5 of people caught him and tortured him. I think he testified in public.
6 JUDGE ANTONETTI: [Interpretation] One moment, please. I don't
7 know. I would have to see what the Registry -- if they can remind us of
8 the 10th of March. Maybe the Prosecutor can shed some light on the 10th
9 of March.
10 MR. MUNDIS: The witness testified in public, open session.
11 JUDGE ANTONETTI: [Interpretation] Very well, so he testified in
12 open session.
13 THE ACCUSED: [Interpretation] So this is Witness Vilim Karlovic.
14 You, as the Trial Chamber, refused to admit into evidence transcripts
15 from his testimony in other trials because relevance was not shown and
16 the transcripts were too voluminous. So he could not be called as a
17 92 ter witness, because when a statement is being prepared under
18 Rule 92 ter, the Prosecution has a much harder job. It has to put
19 together all the previous statements provided by this witness before the
20 Tribunal, before national courts, and transcripts of all his testimony,
21 and then it has to be compiled by the Prosecution. A compilation has to
22 be made.
23 We saw, on the basis of Witness Sejdic, that this compilation is
24 then further enlarged and includes some information that had never
25 cropped up before. So this is a consolidated statement under
1 Rule 92 ter, as they call it. You can see that this consolidated
2 statement cannot be considered witness testimony. This is testimony of
3 the Prosecution. It's a statement made by the Prosecution, showing what
4 the Prosecution would like the witness statement to be like.
5 What I want, and this is why I raise this, I want to make an oral
6 motion for you to review your decision allowing the admission of 92 ter
7 statements under certain conditions. Let me just give you some more
9 Mr. Mundis admitted in public a little while ago that the
10 Prosecution had planned to have almost all witnesses to be called under
11 Rule 92 ter, which means that my trial would be a correspondence trial.
12 I wouldn't even have to appear here in the courtroom at all. And I
13 maintain that it is unlawful to use any previous statements by the -- by
14 a witness, except the depositions, which means that I have to attend the
15 taking of the deposition as a Defence counsel and I have to be given the
16 right to cross-examine that witness.
17 JUDGE ANTONETTI: [Interpretation] Just a moment, please,
18 Mr. Seselj.
19 This question was already raised. We've dealt with it already.
20 I am going to repeat what I already said. But, first of all, the 92 ter
21 procedure was written by myself, I authored it. The reason why I asked
22 my fellow Judges to put it in the Rules of Procedure and Evidence is
23 because I had noticed that in most of trials, most of the time the
24 Prosecutor, who is on his feet during the hearing, had before him a
25 written statement. He was putting questions to the witness by following
1 a written statement, and I thought, "What a waste of time."
2 If a witness is there just to state what we have already in the
3 written statement, why not admit the written statement, on the reserve
4 that a procedure exists, which is that the witness can certify that what
5 he said in writing corresponds to the truth? But at the time when this
6 was accepted, adopted, myself and a great number of my colleagues had
7 thought that, in fact, not knowing a fact is something else. In other
8 words, the witnesses had said that they had been heard by investigative
9 judges in other cases before national courts, and in fact you raised that
10 problem by putting questions where we, the Judges, also realised that
11 there were other prior statements.
12 From there, the Trial Chamber requested that the Prosecutor take
13 into account the fact that some 92 ter statements were very old, they
14 went back to 1996, 1997, 1998; to make a consolidated statement. In
15 other words, to update the statements which were given a long time ago.
16 This is why there was absolutely no reason to put in these statements the
17 statements that were prior statements made before investigative judges,
18 unless the Prosecutor knew of them. At times, we were also able to
19 discover that he did not know that these statements existed. And why?
20 Because the witnesses did not tell that they made prior statements, and
21 then it was a last-minute discovery, if discovered at all.
22 So now we have a written statement which is updated. You are
23 saying that this is something that reflects the Prosecution's position,
24 but thanks to a cross-examination, you can contradict this. You decided,
25 for your own personal reasons, which I respect, not to cross-examine.
1 You've noted with interest that the Trial Chamber read very carefully and
2 scrutinised all these written statements, and whenever there was a
3 written statement susceptible to implicate directly the SRS, yourself,
4 the SCP, then it becomes viva voce. It will not be 92 ter anymore.
5 I haven't seen statements of the five witnesses who are scheduled
6 to come at the beginning of July, but I imagine that these victims are
7 all going to say that they had been arrested by people belonging to
8 military units or to the TO, without giving us further information, which
9 can correspond to 92 ter. Of course, if one witness says, "I was
10 arrested by X, Y or Z, and these people were members of the SRS, and they
11 told me, themselves," we are not going to apply 92 ter in that case.
12 So you can, of course, submit your motion, and the Chamber will
13 answer. I'm not saying that we will dismiss them or accept them. You
14 are raising interesting points, but I cannot tell you ahead of time what
15 myself or my fellow Judges will decide with regard to the 92 ter. I gave
16 you now the background of the procedure. I explained to you that there
17 could be problems. You, yourself, raised them. You've noticed them, and
18 in fact it would be paradoxical, for instance, that we admit one
19 procedure under 92 ter, whereas the witness could have made a completely
20 different statement or a contradictory statement before a court, a
21 different court, another court, on an investigative judge. So this would
22 be contrary to the interests of justice, of course.
23 It is, however, not possible if the witness doesn't say anything.
24 He could very well say something to a Prosecutor but something else to an
25 investigative judge. That is also quite possible. This is why you
1 raised something and I am perhaps the only Judge in this Tribunal who,
2 whenever a witness comes, I ask him his name, last name, his date of
3 birth, just to avoid any confusion, because nothing tells us that the
4 witness we have before us is the right witness, because I do not have his
5 ID papers. And I'm almost the only Judge to ask a witness if he was
6 already heard before this Tribunal or before national courts.
7 Sometimes the witness tells us, "Yes, I testified in
8 such-and-such a court," and then I would look at the Prosecutor and I
9 would discover that the Prosecutor wasn't even aware of that. And it's
10 through my questions that I discover this, because during the proofing
11 session or during other meetings, the question was never put. So
12 systematically, I always think of putting these questions, which enables
13 us to know that the person in question may have made a different
14 statement that you don't have. This happened, in fact, because on many
15 occasions you requested to be -- to obtain prior statements of the
16 witness statements that had not been given to you.
17 So please make your submissions. This will be quite interesting.
18 We will look at your submissions with scrutiny, and we will hand down a
19 decision. Since I don't know what you will tell me, I also do not know
20 ahead of time what the Prosecutor will say in response, we will render a
21 decision in light of this.
22 Yes, Mr. Mundis.
23 MR. MUNDIS: I certainly look forward to the accused's
24 submission, but I do want to again indicate that four of those witnesses,
25 92 ter witnesses scheduled in the first week of July, the Chamber has
1 already granted the 92 ter statements, and so what we would be looking at
2 would be some kind of motion for reconsideration based upon new
3 information or new evidence. And so I haven't heard anything from the
4 accused that would -- that would take us to that level, but so be it, in
5 terms of that, and we await that decision.
6 I had two other issues, if I may. One of them goes back to a
7 comment Judge Harhoff made about an hour ago, before the last break,
8 concerning the importance of having the witnesses testify,
9 notwithstanding any kind of classification or characterization of them as
10 Prosecution, Defence, or Trial Chamber witnesses.
11 The Prosecution certainly shares the view that the most important
12 thing in any trial is for the trier of fact or the Trial Chamber to have
13 all of the relevant evidence from all of the relevant witnesses. Our
14 concern here, as I mentioned earlier this morning, but which I think
15 needs to be elaborated upon a little bit more, goes to the issue under
16 our rules here with 98 bis and the notion of a Defence case coming later.
17 To use a hypothetical situation, there might be a charge or
18 charges in the indictment, or perhaps relating to the JCE, where there
19 are only one or two witnesses who can testify as to that point or that
20 count. If those witnesses do not testify before the 98 bis phase, then
21 the Trial Chamber very well may dismiss a count or counts or charges on
22 the ground that there was absolutely no evidence heard on that count,
23 charge, or as to that mode of liability indicated in the indictment. And
24 this is where the notion of Defence witnesses and the timing of any
25 witnesses the Court determines to call that were on the Prosecution list
1 become crucial.
2 If there is no evidence at the 98 bis phase and the Chamber
3 dismisses the count, that's the end of the story. And so the fact that
4 some witness that the Prosecution submits is crucial to support one or
5 more of the counts, or the JCE as a whole, if those witnesses don't come
6 before the 98 bis phase, there are, in the Prosecution's views, problems
7 with that simply because the Trial Chamber will then not have all of the
8 information or evidence it needs in order to make final decisions about
9 what's in the indictment. And this is the Prosecution's concern about
10 the Defence, in effect, appropriating or taking other measures to get the
11 Prosecution witnesses to, quote, "agree to become Defence witnesses," and
12 this is where, in our respectful view, the entire issue of coercion and
13 intimidation comes into play. And as I've indicated, we will be filing a
14 motion on this at the end of next week.
15 It is not as simple and clear cut as one might be led to believe
16 simply by a witness saying, "I'm not coming as a Prosecution witness,
17 I'll come later," nor is it always a simple question of the Chamber
18 saying, in effect, "The witness doesn't want to come in the Prosecution
19 phase. We will call him as a Court witness." The issue then becomes the
20 timing of that, Your Honours, because we cannot be in a situation where
21 witnesses make a decision as to when they'll come.
22 Witnesses have an obligation to appear before the Trial Chamber,
23 and that goes for Defence witnesses in the Defence case just as much as
24 it goes for Prosecution witnesses. And the issue that we have here
25 that's being presented is the timing of when these witnesses will appear.
1 Whether it's in the Prosecution phase, whether they're called as Court
2 witnesses, whether they're called as Defence witnesses really isn't the
3 issue. The issue is in light of the procedural rules here which consist
4 of, among other things, Rule 98 bis at the middle, the evidence of the
5 witnesses that the Prosecution has listed must be heard before the 98 bis
6 phase of the proceedings. Whether they're called as Prosecution
7 witnesses or Court witnesses, that's not the important point, but the
8 witnesses that are necessary and have evidence relative to the charges
9 must be heard before we get to the 98 bis phase.
10 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Mundis. I thank you
11 for what you just said and for raising this problem, the problem of
12 Rule 98 bis.
13 Rule 98 bis is a rule that we know of well. At the moment,
14 there's the Bonomy 2 Commission working on various proposals aimed at
15 speeding up the trials, in conformity with the status, and there is a
16 possibility that this Rule 98 bis could be cancelled. But so far, we
17 don't know what the decision will be.
18 If Article 98 bis remains in the Rules of Procedure and Evidence,
19 then you're absolutely right. We could end up with a situation where the
20 Prosecution -- let me take your example. Let's say with the JCE, you
21 have five or six witnesses on the Prosecution case, and just by chance
22 these five or six witnesses want to be or are -- end up being Defence
23 witnesses. Then everybody needs to wait. The Trial Chamber does not
24 call these witnesses. Then we come to step -- the step where we have
25 Rule 98 bis, and the Trial Chamber could, of course, note that there is
1 no evidence for JCE and cancel that -- dismisses that count. This could
2 happen, it is true.
3 The Trial Chamber may call witnesses that it deems fit. A good
4 number of Trial Chambers, almost all Trial Chambers, used to call the
5 Court witnesses at the end of the case, after Rule 98 bis. And by
6 hearing them at the very end, it is true that we could end up with a
7 situation that you mention in your example, but the Trial Chamber could
8 also use the Rule to decide on the order of presentation of the
9 witnesses, be they Prosecution or Defence witness, and then the
10 Trial Chamber has a certain power it can exert.
11 Secondly, the Trial Chamber, using Rule 98, could also ask for
12 additional witnesses to be called or could also ask for additional
13 evidence. A Trial Chamber may order either party to produce additional
14 evidence, and either party here. It may, proprio motu, summon witnesses
15 and order their attendance.
16 So in the hypothesis that you were mentioning and the example you
17 gave us, if you were in such a situation just before you finish
18 presenting your own case, you could ask the Trial Chamber to summon
19 Witness 1, 2, 3, 4, 5, and back this by the fact that you may be
20 prejudiced if they are not called. So you see, through the Rules, there
21 is a possibility to solve the problem that you raised, but in a more
22 general fashion, remember that in the Statute it is up to the Prosecution
23 to prepare the case. It's in the Statute. I read this yesterday morning
24 again. You know, I reread it yesterday morning.
25 You are supposed to prepare the case. What does that mean? It
1 means that you have to put a case to the Trial Chamber in full working
2 order, with the evaluation of all possible risks, saying, for example, if
3 a witness says ten years ago, "I will testify," and ten years later he
4 says, "No, I no longer want to testify," everything has to be included.
5 And the problems that we now are confronted with should have been
6 integrated earlier and have to be integrated earlier, which is why I
7 asked you a question on these two witnesses scheduled for July, did you
8 get confirmation that they would actually come, and you said, "Yes." So
9 this goes in the right direction. This goes towards the preparation of
10 the case, the proper preparation of the case.
11 So I remind both parties, Defence and Prosecution, when you
12 prepare your case, you must absolutely check that all the witnesses you
13 intend to call will be your own, 100 per cent.
14 So you talked about pressure being exerted, coercion. Very well.
15 You must tell us about it, and you must prove it. And then the
16 Trial Chamber, of course, if it notes that pressure has been exerted,
17 will draw the necessary conclusions.
18 So the Trial Chamber, of course, will answer all your concerns if
19 they're made in written submissions. You made some oral submissions, and
20 I gave you a preliminary answer on these.
21 Mr. Mundis.
22 MR. MUNDIS: Thank you, Your Honours.
23 Certainly, the Prosecution is well aware of its obligations to
24 prepare indictments and put cases together, and what we're faced with
25 here is a situation where having done that, certain witnesses indicated
1 that they wanted to come in the Defence phase of the case, and the
2 Chamber made a determination that at least with respect to one or two of
3 those witnesses, that that was justification for, in effect, converting
4 them to Court witnesses. What we have a problem with is the continuing
5 category of witnesses who similarly have, due to what we've submitted or
6 will submit in full in writing, is a campaign of coercion and
7 intimidation, and that issue will be put before the Trial Chamber, as I
8 indicated, on or about the 27th of June.
9 I would respectfully ask for, perhaps on the 1st of July, a
10 hearing. Once we've made that submission, I understand that it will need
11 to be translated, but I do think that at least on the broader issue of
12 timing, scheduling, and to further discuss some of the issues that we
13 have discussed here today, that the parties be allowed to address the
14 Trial Chamber further before we go further down the road with respect to
15 timing, scheduling, implications with respect to any potential cuts in
16 the Prosecution witness list or further cuts in time that the
17 Trial Chamber might be inclined to do. And I would respectfully urge
18 that we set aside the entire day of 1 July, that we move those witnesses
19 either to later in that week or perhaps a little bit down the path in
20 July, and that we devote a full day on this, where we can be fully
21 prepared in order to address any concerns the Trial Chamber may have with
22 respect to the timing issues.
23 JUDGE ANTONETTI: [Interpretation] Very well. The Trial Chamber,
24 of course, is ready to have a special hearing on this with you and
25 Mr. Seselj. Of course, your submission must be ready on time, filed.
1 Furthermore, it has to be translated so that Mr. Seselj can answer your
2 submission in his own language. So there is this problem of translation
3 of your submissions, because he must be informed of it and he must be
4 able and prepared.
5 You said that this would be done by June 27th. I believe that
6 will need a few more days for translation, so we could plan a special
7 hearing in July on this.
8 MR. MUNDIS: Let me -- let me be as absolutely transparent as I
9 possibly can be. The submission that we will be filing on the 27th of
10 June does not specifically relate to the issue of timing or what's going
11 on in the case. That relates to the matter that I raised yesterday, and
12 perhaps out of an abundance of caution we should go into private session
13 very briefly and I will explain just the general nature of this motion
14 that we are preparing and which will be filed.
15 JUDGE ANTONETTI: [Interpretation] Very well. Private session,
17 [Private session]
11 Pages 8527-8540 redacted. Private session.
21 [Open session]
22 THE REGISTRAR: Your Honours, we are back in open session.
23 JUDGE ANTONETTI: [Interpretation] We are back into open session.
24 The Trial Chamber was seized of the Prosecution, of its
25 intention -- or was informed by the Prosecution of its intention to seize
1 the Trial Chamber, around the 27th of June, with a motion, a written
2 motion to impose counsel to the accused. The Trial Chamber, seized by
3 this motion, is awaiting the submissions and is inviting Mr. Seselj to
4 file, in writing, his submissions, and then the Trial Chamber will rule
5 on the merits of this motion in the shortest of delays or as soon as
7 Mr. Seselj, I would hand you the floor, because I believe that
8 you had some more questions to raise.
9 THE ACCUSED: [Interpretation] Judges, I can tell you right away
10 that I will not be responding in writing to such a motion by the
11 Prosecution. I will be awaiting the decision of the Trial Chamber, and
12 then I will respond appropriately. And I don't want to discuss this
13 issue before that.
14 But I would now like to go back to what our current problem is.
15 When you ruled -- when you made the first decision to admit or
16 not to admit written statements taken under Rule 92 ter, you stated,
17 inter alia, that in some cases written statements under Rule 92 ter will
18 not be admitted if such statements pertain to, and then I quote:
19 "... the substantial issues contained in the indictment that the
20 Trial Chamber will have to rule on or adjudicate, where the Trial Chamber
21 had not previously heard any viva voce witnesses."
22 All the five witnesses indicated to testify in the first four
23 days or three days of July are witnesses whose statements were prepared
24 by the Prosecution and who deal with substantial issues. And if I
25 remember correctly, "Seselj's men" are mentioned in all of those
1 statements. And as far as I can recall, we have not heard any evidence
2 pertaining to Herzegovina, the broader Mostar region or Nevesinje, so all
3 those -- all five of those witnesses should testify viva voce.
4 As regards Nevesinje, the Prosecution does not intend to call a
5 single viva voce witness. And as I mentioned at the outset of the
6 hearing today, I believe that the time is now ripe for the Trial Chamber
7 to review its decision on the admissibility of the 92 ter statements, and
8 the key argument here is that so far, Judges, you have seen 27 witnesses,
9 4 experts, 20 witnesses testified viva voce. In the course of their
10 evidence, you had in front of you statements that the Prosecution had
11 taken and that they had signed. At times, there were several such
12 statements, and you were able to see that there was huge discrepancy
13 between the contents of what they said viva voce in front of us and what
14 is contained in those written statements.
15 Those written statements are unreliable, extremely unreliable to
16 say the least. No witness was able to recall very important items listed
17 in those statements. And you can -- you know that Goran Stoparic, the
18 first witness that we heard, he said he never said something like that.
19 In his statement it was contained that I saluted the mass of my followers
20 in Side with a Hitler salute.
21 And then with every following witness who testified viva voce,
22 there were major discrepancies, discrepancies that were so substantial
23 that they constitute a valid reason for you to review your decision to
24 admit evidence under Rule 92 ter, and that the least you can do is not to
25 accept any future motions for 92 ter testimony by the Prosecution.
1 Because if we overdo this kind of testimony, 92 ter testimony, then,
2 legally speaking, a judgement that is legally relevant cannot be
3 delivered on the basis of such testimony, because this would mean to
4 admit or to accept evidence that is put together by the Prosecution. So
5 this is the highest form of creativity, not creativity investigation; it
6 is creativity where the Prosecution is actually creating evidence the way
7 it sees fit.
8 JUDGE HARHOFF: I'm sure it did not escape your attention that in
9 most cases, these statements were not admitted into evidence. This goes
10 also for the statement of today, of the witness today. And as I have
11 said previously, and I would like to repeat it so that there should be no
12 doubt about it, what the Chamber will rely on is what the witnesses tell
13 us here in open court, in viva voce. Whether it's in open court or in
14 closed session, the evidence is ultimately the evidence that comes to us
15 directly from the witnesses here in court.
16 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, to add to my fellow
17 Judge's comments, I would like to add this: A decision was handed down
18 with respect to 92 ter witnesses, and as my fellow Judge says, what we
19 rely upon is what is said in viva voce. So when 92 ter witnesses come,
20 questions are put to them, they answer, and after that, the Trial Chamber
21 admits or not their statement.
22 You have, during the course of this morning, told us what your
23 preoccupations were with regard to the five witnesses scheduled to come
24 in July, and you've highlighted one element, and that is something that I
25 had not noticed, is the fact that all these five witnesses come to
1 testify on a municipality, whereas no viva voce witness was scheduled.
2 So to my mind, and I don't know what my fellow Judges will think, but
3 this should be submitted to a re-examination, at least partial
4 re-examination, or review of our decision about the five witnesses.
5 So I would like to propose to my fellow Judges to review -- or to
6 review these five witnesses to see if they should be made viva voce
7 witnesses, in light of what you've said, but of course the Prosecutor may
8 tell us what his position is, and he can do this orally because now we're
9 in a situation of emergency.
10 MR. MUNDIS: Witness VS-1026, who is currently scheduled for
11 Thursday, the 3rd of July, will be a viva voce witness. We will withdraw
12 our prior request, which had been granted, for him to be a 92 ter
13 witness. We will, as a result of that, most likely reshuffle the
14 schedule slightly, perhaps trying to bring him up as early in the week as
16 But VS-1026, who is a 92 ter witness, we will lead his evidence
17 viva voce, and I will try to rejig the schedule for that week so that his
18 testimony is earlier in the week, rather than later in the week. So that
19 would seem to solve that problem.
20 JUDGE ANTONETTI: [Interpretation] So you see, Mr. Seselj, some of
21 your concerns were addressed by Mr. Mundis, and a solution has been made.
22 He just told us that the five witnesses who will -- one of the five
23 witnesses who will come in July is going to be a viva voce witness,
24 namely, 1026. So this solves one problem, at least, but it is a fact
25 that we will look at the other witnesses to see if they should be
1 converted into viva voce witnesses or not.
2 So now that all the subjects or our topics have been raised --
3 have they been raised, Mr. Seselj?
4 THE ACCUSED: [Interpretation] Well, I had another topic I wanted
5 to deal with, but perhaps we can leave it for some other time, because
6 I can see now that the atmosphere is getting quite tense.
7 JUDGE ANTONETTI: [Interpretation] No, I believe that the
8 atmosphere is excellent. Actually, I could tell you that it hasn't been
9 so good in a long, long time. So please pursue.
10 THE ACCUSED: [Interpretation] Well, I had some quick questions
11 about disclosure. I have yet to receive videotapes, and my legal
12 associates will come the week after the next, because next week I will
13 have a visit from my eldest son and his family, and my legal counsel will
14 be here the week after the next. And so I would need to have that and
15 the rest of the material on paper.
16 JUDGE ANTONETTI: [Interpretation] Just a minute, Mr. Seselj.
17 Regarding this disclosure, I told you a few days back that this
18 is a very -- it is a very complex matter, and this raises a lot of legal
19 questions, especially regarding copyrights. The Trial Chamber is looking
20 into this at the moment, and as soon as possible we will give you -- we
21 will tell you what we decided.
22 But let me tell you, this is much more complicated than it seemed
23 at first. The Trial Chamber is looking into this, and we will soon rule
24 on this. And I would like to thank my legal officer, because just on
25 June 17th, that's just two days ago, but you didn't get the translation
1 yet, we asked for additional information from the Prosecution. So the
2 Trial Chamber filed some submissions where we are asking the Prosecution
3 to answer a number of questions. Of course, you'll get this submission
4 as soon as it is translated.
5 That's all I can say as of now regarding this. Do you have
6 anything else to say?
7 THE ACCUSED: [Interpretation] If you'll recall, during the
8 examination of a Prosecution witness we realised that he had already
9 testified in a trial in Sarajevo. Now, I'm not sure whether we said in
10 public what trial it was, because it turned out at that time that the
11 Prosecution had failed to provide me the transcript of his testimony
12 there, and the Prosecution, in fact, refused to do so, citing numerous
13 reasons why it is unable to do that. Among other things, his testimony
14 before that court was done in closed session, too. So now I can say what
15 trial it was in Sarajevo without mentioning this witness's name. I can
16 do that in public session, can I? This is --
17 JUDGE ANTONETTI: [Interpretation] Give us the date of this trial.
18 Thanks to this, the Prosecution will be able to make some searches.
19 THE ACCUSED: [Interpretation] Well, I can't say that. This trial
20 is a trial of Momcilo Mandic. He was acquitted after that trial. This
21 is a fact that is known to the public. I will not mention the name of
22 the name [as interpreted], because nobody knows what witness testified in
23 both trials. There may have been others.
24 JUDGE ANTONETTI: [Interpretation] I agree with you.
25 THE ACCUSED: [Interpretation] Judges, the Prosecution has
1 recently provided me with transcripts, a full statement made by
2 Momcilo Mandic to the OTP investigators. In that statement, he makes
3 inappropriate statements about me. I couldn't find any instances where
4 he blamed me for some crimes, but he -- there is a lot of dirty laundry.
5 I am tried here for my participation in a joint criminal
6 enterprise, and let's now look at how this joint criminal enterprise is
7 put together. It is put together in such broad terms that it would
8 follow that all Serbs who participated in the war in any capacity were
9 participants in the joint criminal enterprise. And I'm not complaining
10 about that, but the Prosecution has to provide me with the full
11 transcript of the Momcilo Mandic trial.
12 We had a witness yesterday, and some other witnesses before him,
13 who testified about people being detained, prisoners -- for the most part
14 those were prisoners because they had arms -- they carried arms. They
15 fought on the Muslim side, in uniform or not, but at any rate they had
16 arms. Witnesses were called to indicate that those prisoners had been
17 taken to do forced labour, to the very frontlines, and now I am supposed
18 to defend myself against those charges, and this is the first time that I
19 hear about such practices. And the Prosecution, when it prepared its
20 case against me, took a statement from the person who ordered that. This
21 man was not indicted before this Tribunal. He appeared as a Prosecution
22 witness in some other cases. I will not say what cases. He was not
23 envisaged to come here as a witness. I know why; because he would not
24 fare well at all here in the courtroom. And the Prosecution provides me
25 with this piece of evidence --
1 JUDGE ANTONETTI: [Interpretation] Just a minute, Mr. Seselj. We
2 were supposed to talk about housekeeping matters, but you're talking also
3 about legal matters. On the administrative side, you're asking for the
4 Prosecution to disclose the transcript of Momcilo Mandic's trial. This
5 is what you're requesting; right?
6 THE ACCUSED: [Interpretation] Mr. President, my first demand was
7 for just one testimony in this trial to be submitted to me, but now I
8 have a new demand, the full transcript of the trial, and I have an
9 argument to support this demand. And it's not a long one, either.
10 The Prosecution provided me with a document of the Ministry of
11 Justice and Administration of the Serbian Republic of Bosnia and
12 Herzegovina. There is a reference number. The date is the 10th of
13 August, 1992. It was sent to the Serbian municipality of Vogosca, to the
14 War Presidency. It is signed by Momcilo Mandic, and then there is a
15 note. Approval was obtained from the minister after a conversation,
16 because somebody signed it from his office.
17 THE INTERPRETER: The interpreters did not hear the number.
18 THE ACCUSED: [Interpretation] ... and it says in one sentence:
19 "In relation to your request about the work obligation of the
20 prisoners, we hereby inform you that we approve the use of prisoners for
21 construction work."
22 Your Honours, this is a piece of evidence that the Prosecution
23 has at its disposal, and it still argues, as it argued in the indictment,
24 that I took those prisoners to do forced labour. And they have evidence,
25 and they are collaborating with the person who actually gave this
2 JUDGE ANTONETTI: [Interpretation] I understood. I'm looking at
3 the clock, and I'm starting to worry about time flying.
4 But, Mr. Mundis, on this matter, there is the Vogosca
5 municipality, forced labour, and so forth and so on. Momcilo Mandic
6 seems to be playing a role in all this, and the accused would like the
7 transcript of this trial to be disclosed to him. Do you have it; yes or
8 no? If you have it, can you give it, hand it out? If you don't have it,
9 are you intending to ask the authorities to give you this transcript?
10 MR. MUNDIS: Do I have it? I will have to check, and I will come
11 back to the Trial Chamber after the break, which I believe is rapidly
12 upon us. If I have it, I will disclose it. If I don't have it, chances
13 are we're not going to be going out and asking for it.
14 Of course, we've been through this issue before with respect to
15 trials at the State Court in Sarajevo or at other institutions.
16 Dr. Seselj has the same ability to get this material as the Office of the
17 Prosecutor does, and if it's in our possession and we have an obligation
18 to disclose it, we will disclose it. If we don't have it, we are
19 probably not going to be going out and actively getting it on
20 Dr. Seselj's behalf.
21 JUDGE ANTONETTI: [Interpretation] In a word, Mr. Seselj, if the
22 Prosecutor has it, he will disclose it, but if he doesn't, he will not
23 make any -- take any measures to have it. But he'll tell us later. This
24 is not an emergency. He'll tell us what he does regarding this next
1 If he does not want to engage in the necessary steps to have it,
2 well, you tell us you need the document and the Trial Chamber will
3 request the competent authorities to give you this document.
4 Mr. Seselj, if you're almost done, we can continue --
5 THE ACCUSED: [Interpretation] Just briefly.
6 JUDGE ANTONETTI: [Interpretation] -- otherwise, we'll have the
8 THE ACCUSED: [Interpretation] Just briefly, I'm referring to the
9 ruling of the Appeals Chamber in the Kordic case, the 11th of February,
10 2004. This is a decision --
11 THE INTERPRETER: The interpreter notes it's too fast for
12 interpretation, the reading.
13 THE ACCUSED: [Interpretation] I gave information about the
14 decision. I hope I don't have to repeat that.
15 In paragraph 17 of this decision, it says Rule 68 of the
16 Rules has an important role, because it makes it incumbent upon the
17 Prosecutor to disclose exculpatory material because there is better or
18 perhaps sometimes exclusive access to this material. I absolutely have
19 no access to the State Archives in Sarajevo. I cannot have such access.
20 I cannot get such material from them. It is this Prosecution that has
21 better access than I do, and I am convinced that they have exclusive
22 access to the material of that court.
23 JUDGE ANTONETTI: [Interpretation] Very well. We are aware of the
25 Mr. Mundis.
1 MR. MUNDIS: The accused can make a motion to the Trial Chamber.
2 I'm not sure if he was talking about the State Court or the
3 State Archives. Certainly, either of those issues, the accused has
4 absolute access to the Trial Chamber for whatever kind of relief or
5 orders are necessary for the associates of the accused to go and collect
6 this material from either the State Archives in Sarajevo or from the
7 BH State Court in Sarajevo.
8 We're well aware of our Rule 68 obligations. They do not extend
9 to going out and looking for or seizing or taking material on behalf of
10 an accused. That is not the regime here, and, you know, when we have
11 material that's Rule 68, we disclose it.
12 JUDGE ANTONETTI: [Interpretation] Very well. Tell us next week
13 what you decided.
14 Have we gone through the entire agenda, Mr. Seselj?
15 THE ACCUSED: [Interpretation] As far as I'm concerned, yes.
16 JUDGE ANTONETTI: [Interpretation] Good.
17 We will resume next Tuesday. We are sitting in the afternoon
18 next week. We will start at 2.15 p.m. Thank you all, and I'll see you
20 --- Whereupon the hearing adjourned at 12.04 p.m.,
21 to be reconvened on Tuesday, the 24th day
22 of June, 2008, at 2.15 p.m.