Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

 1                           Friday, 6 March 2009

 2                           [Initial Appearance]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.32 p.m.

 6             JUDGE PARKER:  Would the Registrar please call the case.

 7             THE REGISTRAR:  Thank you and good afternoon, Your Honour.

 8             This is case number IT-03-67-R77.2-I, the Prosecutor versus

 9     Vojislav Seselj.

10             JUDGE PARKER:  Thank you.

11             Mr. Seselj, are you receiving a translation in a language that

12     you can understand?

13             THE ACCUSED: [Interpretation] Yes, but I'm not receiving any

14     interpretation.  I haven't got any translation.  Your words were not

15     interpreted to me.

16             JUDGE PARKER:  I will repeat them, in the expectation that it is

17     now occurring, and the Court Officer will check that you're switched on

18     to the correct channel to receive the interpretation.

19             THE ACCUSED: [Interpretation] Yes, I'm on the right channel now

20     and have heard the interpretation of what you said.

21             JUDGE PARKER:  Splendid.

22             Now, appearances.  Mr. MacFarlane.

23             MR. MacFARLANE:  Thank you, Your Honour.

24             My name --

25             THE INTERPRETER:  Microphone, please, Mr. MacFarlane.

Page 2

 1             MR. MacFARLANE:  My name is Bruce MacFarlane.  I'm an attorney

 2     from Canada.  I appear as amicus curiae Prosecutor, and with me this

 3     afternoon and for the course of the trial is Lori Ann Wanlin, also from

 4     Canada.

 5             JUDGE PARKER:  Thank you very much.

 6             I see and I understand, Mr. Seselj, that you are intending today

 7     to represent yourself.

 8             THE ACCUSED: [Interpretation] I fully intend to represent myself,

 9     and not only today, Judge.

10             JUDGE PARKER:  I'll come back to that in a little while,

11     Mr. Seselj.

12             I think, probably, as you are representing yourself, I should, as

13     a matter of precaution, although I'm sure you've become well familiar

14     with the matter already, remind you in particular that under the Statute

15     and the Rules of Evidence and Procedure, you enjoy the right to remain

16     silent at any time during the proceedings.  Are you not obliged to say

17     anything.  That is a matter for your decision.  There are, of course, as

18     I'm sure you have become well aware, other rights to which you are

19     entitled under the Statute and the Rules.  Just so that you know of them

20     again, in particular in Articles 20 and 21 of the Statute you'll find an

21     identification of significant rights of an accused, and the Rules of the

22     Tribunal deal in many ways with aspects of the procedure that will be

23     followed.

24             I know, from what little I know of your own legal training and

25     background, and your time here, that you are quite familiar with those

Page 3

 1     matters, but as a matter of precaution, I just draw them again to your

 2     attention.

 3             It should be mentioned that on the 21st of January this year,

 4     acting under Rule 77(C), an order in lieu of an indictment was issued

 5     against Mr. Seselj.  I will refer to this as "the indictment."

 6             An order was also made for amicus curiae to be appointed to

 7     prosecute the indictment, and it was on the 11th of February that the

 8     acting Registrar appointed Mr. Bruce MacFarlane, QC, as amicus curiae in

 9     this case.

10             Now, at this stage, by way of summary, Mr. Seselj, I would simply

11     remind you that you are charged with one count of contempt of the

12     Tribunal, which is punishable under Rule 77(A) of the Rules, for

13     knowingly and willfully interfering with the administration of justice by

14     disclosing confidential information in violation of orders granting

15     protective measures and by disclosing excerpts of the written statement

16     of a witness in a book published in or about November of 2007.

17             As you've been in the custody of the Tribunal now for quite some

18     time, I don't think there's any need, as we would do if this was your

19     very first appearance here, to go through the formalities of confirming

20     your identity and personal details.  I think we can take it that they are

21     all well known.  I would, though, as a matter of precaution, just inquire

22     whether you accept that you are the Vojislav Seselj named in the

23     indictment.

24             THE ACCUSED: [Interpretation] Judge, not only am I the man, but

25     I'm very proud of being that particular person.

Page 4

 1             JUDGE PARKER:  Well, I thought you might well accept that you are

 2     the person charged, Mr. Seselj, so we won't go further in going through

 3     all the formalities of your identity.

 4             Now, I understand, Mr. Seselj, that you have received the

 5     indictment in your own language.  Can I be sure that's correct?

 6             THE ACCUSED: [Interpretation] Yes, that is correct, but I'd like

 7     to draw your attention to the fact that I have received two versions of

 8     that same order which today we're going to refer to as "indictment."

 9     There is a public and a confidential version, and I think that today, in

10     the courtroom, we should have the confidential version read out and to

11     abolish any confidentiality over that version, because it protects the

12     identity of the protected witnesses; however, mention is made therein of

13     the name of the book in which I allegedly published their identity.  And

14     in the public indictment, the title of the book is not mentioned.

15             We have a well-known name in the title of this book, and the

16     title is very exotic.  However, that individual is not a protected

17     witness in any of the trials appearing before this Tribunal, in any of

18     the proceedings, and I think that since I am being tried for this book,

19     the public ought to know the exact title of the book.  There's no reason

20     why that should be held back and secret, and if somebody doesn't like

21     being mentioned in the title of the book, then they can address the

22     amicus curiae Prosecutor in this case and take it up with him.  But

23     I think that you can only try me on the basis of a public indictment and

24     not a secret, confidential indictment, and that is why I demand that we

25     read out that confidential indictment, and any mention of the book and

Page 5

 1     the book's title be uttered in open session, because what happened in

 2     another proceedings against me, when I mentioned the title of the book,

 3     the Trial Chamber decides to redact the transcript and decides to move

 4     into private session.  And I think that is quite impermissible in these

 5     proceedings, because in these proceedings we are duty-bound only to

 6     protect the names of the protected witnesses from the main trial or,

 7     rather, any proceedings held in this Tribunal.

 8             JUDGE PARKER:  I rather take it, from what you've been saying,

 9     that you will be able to assure me that you've read the indictment and

10     understood its contents, Mr. Seselj.

11             THE ACCUSED: [Interpretation] Of course, Judge, and I'm in a

12     position to plead today, without having to waste a month.

13             JUDGE PARKER:  That's a splendid position, Mr. Seselj.  You

14     realise that I need to take some of these steps to ensure that you are

15     not proceeding in ignorance of your rights and position, particularly

16     because you're not represented.

17             Now, I'm afraid there is in place an order attaching

18     confidentiality to certain elements of the indictment.  I am not in a

19     position to vary that order.  Therefore, if you want the indictment read

20     in the full form, you being aware there is a full form which identifies

21     individuals and a book, and there is a form when those details are

22     omitted, if you want it in the full form, it will need to be read in

23     closed/private session.  Otherwise, we can read it simply omitting the

24     identification of witnesses and of the book, and we can do it in public

25     session.  Which would you prefer today, Mr. Seselj?

Page 6

 1             THE ACCUSED: [Interpretation] Judge, I'm absolutely opposed to

 2     any type of closed or private session, and I demand that these

 3     proceedings be held in completely open session.  So you can read out the

 4     portions that you think can be read out in open session, and if you have

 5     been appointed the Pre-Trial Judge, then you will have to deal with this

 6     question of confidentiality very soon, because there's no sense in the

 7     indictment remaining confidential.

 8             I'm being tried here, and the public doesn't know why I'm being

 9     tried.  The public must be made aware of what I'm being tried for.  Even

10     had I killed a man, the name of the person who I killed would have to be

11     stated in open session, publicly, and not for the fact that I spoke

12     against some protagonist, the person who was a protagonist of American

13     policy and CIA policy in Belgrade.  I don't see the reason for the

14     identity of this person to be hidden from the public.

15             Now, perhaps the problem is that the decision was made in a

16     confidential form, but from the initial appearance this question must be

17     tried by the Trial Chamber acting in these proceedings.

18             JUDGE PARKER:  Thank you, Mr. Seselj.

19             The reason for the confidentiality is that there is a trial

20     ongoing involving you in which witnesses and other material is of

21     concern.  For that reason, the confidentiality order has been made.

22     Whether it can be varied or removed entirely at some stage in these

23     proceedings is a matter that will have to be addressed in due course by

24     the Trial Chamber when that is appointed and whoever it may be.

25             What I propose to do, therefore, Mr. Seselj, is to -- I think it

Page 7

 1     better probably if I read the indictment, rather than the Court Officer,

 2     because with a bit of luck I can be careful not to mention those parts

 3     which are confidential.

 4             If I could remind you that the order in lieu of an indictment

 5     says that you, born in 1954 in Sarajevo, in the Republic of

 6     Bosnia and Herzegovina, and currently on trial before the Tribunal, is

 7     charged with one count of contempt of the Tribunal, pursuant to

 8     Rule 77(A)(ii) of the Rules as detailed below.

 9             Then follow three paragraphs of factual allegations:

10             1.  In its decision of 13 March 2003, 1 June 2005, 6 July 2005,

11     and 8 November 2006, the Trial Chamber trying the case of Prosecutor

12     against Vojislav Seselj ordered various protective measures in respect of

13     three witnesses identified in the indictment by pseudonyms.  In its

14     decision on adopting protective measures of the 30th of August, 2007, the

15     Seselj Trial Chamber ordered that the use of pseudonyms, as well as image

16     and face distortion, remain applicable in respect of these three

17     witnesses.  The Trial Chamber also prohibited the disclosure of the

18     names, addresses, places of residence, or any other information which may

19     identify the protected witnesses, and from this disclosing this

20     information to any third party, except when this information is directly

21     and specifically necessary for the preparation and presentation of the

22     Defence case.  In addition, the disclosure of the written statement of a

23     witness, identified by pseudonym, was prohibited by the Trial Chamber's

24     decision on Prosecution's motion for order of non-disclosure filed on

25     13 March 2003.

Page 8

 1             The second paragraph:  In or about November 2007, a book which is

 2     named, authored by you, was published.  The book contains numerous

 3     references to the three witnesses, including their real names,

 4     occupations, places of residence, which enable the identification of

 5     these witnesses.  The book also contains excerpts of the written

 6     statement of one of the protected witnesses.

 7             The third paragraph:  At the time of the publication of the book,

 8     you had knowledge of the order prohibiting the disclosure of the written

 9     statement of that identified witness and of the orders adopting

10     protective measures in respect of and ordered specifically prohibiting

11     the disclosure of information which may identify the three protected

12     witnesses.

13             Then follows the charge.  By your acts and omissions, you

14     committed contempt of the Tribunal, punishable under this Tribunal's

15     inherent power, and Rule 77(A)(ii) of the Rules, for knowingly and

16     willfully interfering with the administration of justice by disclosing

17     confidential information in violation of orders granting protective

18     measures and by disclosing excerpts of the written statements of the

19     identified witness in the book, which book was published in or about

20     November 2007.

21             Now, I've read there with those variations only so as not to

22     disclose the pseudonyms and the name of the book, and that is the

23     indictment which is brought against you under this order in lieu of an

24     indictment.

25             You've indicated that you wish to plead today.  I welcome that,

Page 9

 1     Mr. Seselj.  I should remind you, though, that you may, if you wish,

 2     defer that for up to 30 days, but if it is your wish to plead, do you

 3     plead guilty or not guilty to that indictment, Mr. Seselj?

 4             THE ACCUSED: [Interpretation] I am going to enter a plea straight

 5     away, and it is:  Not guilty.

 6             JUDGE PARKER:  Thank you for that, Mr. Seselj, and for your

 7     preparedness to move in such a timely fashion.  I hope it will be

 8     possible to maintain the speed so that this matter can be dealt with as

 9     promptly as possible.  I will ensure that the Registrar records that you

10     have entered a plea of not guilty in respect of the indictment.

11             Now, I need to return, Mr. Seselj, to the issue of legal

12     representation.  You've indicated quite clearly that you have chosen not

13     [sic] to represent yourself.  As a matter of caution and to try and

14     ensure that your decision is fully and properly informed, I would simply

15     like to point out to you that the principal advantages of having legal

16     representation is that you would have skilled and experienced advice and

17     assistance as to your own legal position in this matter and in the

18     conduct of your case, if you were to decide to be represented rather than

19     to represent yourself; and of course it would be open to you to make

20     application for assistance with respect to the cost of legal

21     representation to the Registrar.  I remind you of those matters so that

22     you may take them into account, and if you wish to change your view and

23     have legal representation, you are, of course, free to do that at any

24     stage of what should follow in these proceedings.

25             Also as a precaution, Mr. Seselj, I know I probably don't need to

Page 10

 1     say any of these things, but so that it's clear, I want to remind you of

 2     the provisions of Rule 63.  That Rule lays out the conditions on which

 3     the Prosecutor may interview you even after this initial appearance.

 4     Now, in this case, you should read the Rule referring to the Prosecutor

 5     clearly as referring to the amicus curiae who's been appointed,

 6     Mr. MacFarlane; and under that Rule any questioning of you by the

 7     Prosecutor, or people on his behalf, should not proceed without the

 8     presence of counsel representing you unless you voluntarily and expressly

 9     agree that the interview can proceed without your counsel present.  If

10     you do commence without counsel, should there be some interview

11     attempted, you may at any time make it clear that you do not wish to

12     proceed further until counsel are present.

13             Now, I've just tried there to remind you of an essential

14     attribute of Rule 63 so that you are reminded of its content, and you'll

15     also see in that Rule that anything that you say will be audio- and

16     video-recorded, and you will be cautioned at the beginning should there

17     be any occasion on which the Prosecutor seeks to interview you or have

18     you interviewed.  That may not occur at all, don't think it must occur,

19     but if it does occur, I want to be sure that you're aware of your

20     position.

21             The next matter I would just mention in passing is Rule 66.  That

22     concerns the materials that supported the order in lieu of indictment.  I

23     see, from a filing by the amicus curiae that I have just received, and

24     which no doubt is now in the process of being translated for you, that

25     the amicus curiae is well aware of the disclosure obligations of the

Page 11

 1     Rules.  I won't deal any further with the matter of disclosure at this

 2     stage.  If it is necessary, a decision will issue in due course dealing

 3     with matters raised in the motion.  But you will be aware of those

 4     proceedings as they continue, Mr. Seselj, and of course you may make

 5     submissions in writing, as you think appropriate, as they continue.

 6             The Trial Chamber will, in due course, as soon as disclosure is

 7     resolved, and any other procedural steps, be making orders as to status

 8     in pre-trial conferences, if they are necessary and, hopefully in the

 9     not-distant future, an order as to the commencement date for trial, so I

10     look forward to those possibilities arising.

11             Now, I've tried to deal, this afternoon, with the matters that

12     I think are important that you be reminded of, Mr. Seselj, so that your

13     essential rights are brought again to your knowledge and so that you can

14     be alert as matters proceed as to what those rights are; and I have,

15     myself, looked at the proceedings so far with a view to ensuring that the

16     requirements have been satisfied this far.

17             Is there any other matter which, first of all, you,

18     Mr. MacFarlane, consider needs to be raised today?

19             MR. MacFARLANE:  Thank you, Your Honour.

20             Not at this point.  I anticipate that there might be other

21     matters, but I don't have anything to raise at this stage.

22             JUDGE PARKER:  Well, it's essentially a first hearing for

23     Mr. Seselj.  He's cooperated in moving the matter along quickly with the

24     plea of not guilty, so that hopefully we can get to the other pre-trial

25     procedural matters quickly.

Page 12

 1             Now, Mr. Seselj, is there any matter concerning this initial

 2     appearance that you feel needs to be raised today?

 3             THE ACCUSED: [Interpretation] Very briefly.

 4             Probably there was a mistake in the interpretation at the

 5     beginning of what you started to say this afternoon, because the

 6     interpreter said that I would not be representing myself.  I think that's

 7     a mistake, and you said that I had decided to represent myself.  So I'm

 8     saying that for the public, to make that quite clear, not to leave the

 9     wrong impression.

10             The second point is this:  As far as talking to the Prosecutor is

11     concerned, of course the Prosecutor has the right to issue an order for

12     the guards to bring me in for an interview, but it depends on me, whether

13     I'll talk to him or not.  And I consider that I have nothing to discuss

14     with the Prosecutor.  He has the indictment before him, I have set the

15     outlines of my Defence case, and anything we need to do can be done in

16     the courtroom here.  So I have no reason to discuss any matters with the

17     Prosecutor.  If they force me to go there, I'll sit there silently and

18     stay there for as long as it takes.

19             Now, with respect to disclosure, as far as I remember, the

20     Rule says that the Prosecutor is duty-bound, within the space of one

21     month, to provide me with all the documents attending the indictment.

22             And the fourth point I wish to make is this:  Because I'm

23     representing myself, Judge, I require that I be allowed to sit in the

24     first row so that I can be in the courtroom visually and on a par in the

25     courtroom with the opposite side, that is to say, the Prosecutor, as of

Page 13

 1     the next proceedings, whether it be a status conference, or a pre-trial

 2     conference, or whatever the proceedings accord.

 3             JUDGE PARKER:  You started your comments by saying that you'd be

 4     brief.  You have observed your own requirement.  That's a matter that I

 5     am appreciative of, Mr. Seselj.  What you have said discloses that you

 6     correctly understand your position and your entitlements.  There is

 7     nothing I need to add to those matters.

 8             As to where you sit in the courtroom is a matter according to the

 9     ordinary practice of this Tribunal, and subject to any order that might

10     be made as the matter progresses, the ordinary procedures of the Tribunal

11     will apply.

12             I would like to thank counsel for their attendance and assistance

13     today.  The matters that need to be dealt with on an initial appearance

14     have been concluded, and I will now adjourn.

15                           --- Whereupon the Initial Appearance adjourned

16                           at 3.04 p.m.