Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Thursday, 29 April 2010

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.31 p.m.

 5             JUDGE HALL:  Good afternoon.  Could the Registrar please call the

 6     case.

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

 8     is case number IT-03-67-R77.3, the Prosecutor versus Vojislav Seselj.

 9             JUDGE HALL:  Thank you.

10             Mr. Seselj, can you hear the proceedings in a language that you

11     understand?

12             THE ACCUSED: [Interpretation] Yes.  [In English] But I didn't --

13     I didn't receive a translating.

14             JUDGE HALL:  I'm sorry, a translation of -- of what?

15             THE ACCUSED:  Can you repeat it?

16             JUDGE HALL:  Certainly.  My question to you, sir, was whether you

17     can hear -- hear me in a language that you understand.

18             THE ACCUSED: [Interpretation] Well, I heard you before, but I

19     wasn't receiving the interpretation.  I need to receive the

20     interpretation in Serbian, and I'm receiving it now.

21             JUDGE HALL:  Thank you.  So we're on track.

22             May we have the appearances from the -- on behalf of the

23     Prosecution, please.

24             MR. MacFARLANE:  Thank you, Your Honour.  My name is

25     Bruce MacFarlane.  I'm an attorney from Canada appearing as the

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 1     amicus Prosecutor in this matter.

 2             JUDGE HALL:  Thank you.

 3             Mr. Seselj, do I correctly understand that you represent yourself

 4     for these proceedings?

 5             THE ACCUSED: [Interpretation] Yes, and I informed the Registrar

 6     on time that I would be representing myself.

 7             JUDGE HALL:  Thank you, sir.

 8             The -- before we proceed further, the first thing that I would

 9     do, Mr. Seselj, is to remind you that under the Statutes and Rules of the

10     Tribunal you have the right to remain silent at all times during these

11     proceedings.

12             I will first of all outline the background to this case on the

13     charge contained in the Order in Lieu of Indictment against Mr. Seselj.

14             During the trial of Mr. Seselj before another Chamber for crimes

15     allegedly committed between 1991 and 1993 in Croatia, Vojvodina and

16     Bosnia-Herzegovina, the Prosecution filed a confidential and ex parte

17     motion under Rule 77 alleging breaches of protective measures by

18     Mr. Seselj and his Defence associates in three books allegedly authored

19     by him.  On the 13th of March, 2009, the President of the Tribunal

20     directed this Trial Chamber to examine this motion.

21             On the 25th of August, 2009, the Trial Chamber decided that it

22     did not have sufficient grounds to proceed by issuing an Order in Lieu of

23     an Indictment against Mr. Seselj for having reprinted confidential

24     information in the first of the three books, while the second of the

25     three books disclosed information in knowing violation of an order of a

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 1     Chamber and therefore constituted contempt under Rule 77(A)(ii).  The

 2     Chamber was not persuaded that in the present circumstances this

 3     disclosure attained such a level of gravity that it should exercise its

 4     discretion pursuant to Rule 77(D) to instigate proceedings against

 5     Mr. Seselj for having reprinted this information.

 6             While they had sufficient grounds to believe that the third of

 7     three books disclosed confidential information in knowing violation of an

 8     order of a Chamber and therefore may have constituted contempt under

 9     Rule 77(A)(ii), the Chamber was not persuaded that in the present

10     circumstances this disclosure attained such a level of gravity that it

11     should exercise its discretion pursuant to Rule 77(D) to instigate

12     proceedings against Mr. Seselj.  While it had reason to believe that at

13     the time the third of the three books were published Mr. Seselj knew that

14     none of the -- that nine of the 13 of the individuals referred to in this

15     book were protected Prosecution witnesses and that they had been granted

16     protective measures, the Chamber did not have sufficient grounds to

17     believe that he may be in contempt of the Tribunal for having disclosed

18     information in the third book that might identify or lead to the

19     identification of protected Prosecution witnesses as such in

20     contravention of orders issued by the Seselj Trial Chamber.  The Trial

21     Chamber indeed found that the information provided in this book only

22     referred to those individuals as Defence witnesses.

23             THE INTERPRETER:  Could Your Honour kindly slow down for the

24     interpretation.  Thank you.

25             JUDGE HALL:  Thank you.  Not as Prosecution witnesses and did not

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 1     contain any references to the pseudonyms assigned to them.  The same

 2     reasoning applied to Mr. Seselj's associates.

 3             On the 17th of December, 2009, the Appeals Chamber of the

 4     Tribunal, ruling on an appeal by the Prosecution, found that the evidence

 5     before the Trial Chamber gave rise to a prima facie case that Mr. Seselj

 6     had knowingly disclosed the identifying information of 11 witnesses in

 7     violation of the Seselj Trial Chamber's orders.  Therefore, no reasonable

 8     trier of fact could have concluded that insufficient grounds existed to

 9     prosecute Mr. Seselj pursuant to Rule 77(D) of the Rules for having

10     disclosed the said information.  The Appeals Chamber therefore ordered

11     the Trial Chamber to proceed against Mr. Seselj for contempt by issuing

12     an Order in Lieu of Indictment to prosecute him for having disclosed

13     information which may identify the 11 protected witnesses in violation of

14     the Seselj Trial Chamber's orders.

15             On the 3rd of February, 2010, the Trial Chamber issued an Order

16     in Lieu of Indictment, which I will refer to as the indictment, and

17     ordered that an amicus curiae Prosecutor be assigned, and on the 2nd of

18     March, 2010, the Deputy Registrar appointed Mr. MacFarlane as amicus

19     curiae Prosecutor in this case.

20             Mr. Seselj, according to the indictment, you are charged with one

21     count of contempt of the Tribunal, punishable under Rule 77(A)(ii) of the

22     Rules, for having disclosed information which may identify 11 protected

23     witnesses in violation of orders of a Chamber in a book.

24             Before we proceed further, Mr. Seselj, could you confirm for the

25     record that you are the Vojislav Seselj who is named in this indictment.

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 1             THE ACCUSED: [Interpretation] Yes.  I am Dr. Vojislav Seselj,

 2     university professor and the greatest enemy of The Hague Tribunal.

 3             JUDGE HALL:  Thank you, sir.

 4             I have been informed that you have received the indictment in

 5     your own language.  Can you confirm this?

 6             THE ACCUSED: [Interpretation] Yes, I did receive the indictment,

 7     but I did not receive some very important attending documents which

 8     otherwise the Prosecutor did receive.  It's a copy of the request of the

 9     26th of January, a copy of the Decision of the Trial Chamber, the appeal

10     lodged by the Prosecution.  I did not receive the Decision pursuant to

11     that appeal on the part of the Prosecution and all the attached material,

12     and according to a court order of the 3rd of February, 2010, the

13     Prosecutor did receive all those documents.  So at the starting point,

14     we're not equal parties.  And if you had planned to hold my initial

15     appearance today about guilt or not guilt, I can tell you here and now

16     that there will be none of that until I receive those documents.

17             I have understood everything you read out.  I received the order.

18     However, without the attending documents, I refuse to plead at all.

19             JUDGE HALL:  Thank you.  Before we proceed further, I would just

20     wish to consult with the Legal Officer.

21                      [Trial Chamber and Senior Legal Officer confer]

22             JUDGE HALL:  Mr. MacFarlane, are you -- are you able to offer a

23     comment on the point that has been taken by Mr. Seselj?

24             MR. MacFARLANE:  Yes.  Thank you, Your Honour.  I received the

25     materials after they were prepared by staff and spent a fair bit of time

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 1     going through the materials to assess which of them fell within Rule 66

 2     in terms of disclosure, and a package of materials pursuant to Rule 66

 3     was prepared and -- and in fact has been provided to the accused today.

 4     So I believe that his queries have been satisfied, but he has a package

 5     that's probably about two and a half to three inches thick of materials.

 6             JUDGE HALL:  Thank you, sir.  Thank you.  You say it's been

 7     provided to him today.  Do you agree with his implied application that --

 8     although from what he said, I didn't appreciate that he's received them,

 9     but what -- the recency of the receipt by him, do you agree with his

10     implied application that he would need time to familiarise himself with

11     that material before he proceeds further?

12             MR. MacFARLANE:  Well, certainly there is a fair volume of

13     material has been provided.  Under the Rules, the normal rules provide

14     that Rule 66 disclosure must take place within 30 days of the initial

15     appearance.  In contempt matters it's within ten days.  So that speaks to

16     the timing of the disclosure.  It was only recently that we were able to

17     put the package together.  But I certainly agree that there is a fair bit

18     of material for him to go through, and he will, I expect, need some time

19     to take a look at it.  Whether that should precede the plea or precede

20     trial, I suppose, is the arguable point.

21             JUDGE HALL:  Thank you.  Well, the --

22             THE ACCUSED: [Interpretation] May I say something?  May I say

23     something, Mr. Hall?

24             JUDGE HALL:  Yes, please.

25             THE ACCUSED: [Interpretation] What Mr. MacFarlane has just said

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 1     is simply not true, or in fact, it's just half true.  And you, Mr. Hall,

 2     as an experienced Judge, know that half-truths are the worst possible

 3     untruths.

 4             Before coming into the courtroom here, I really did receive a

 5     whole heap of documents and as Mr. MacFarlane described it here.

 6     However, I did manage to leaf through all that material, and in that

 7     material I can assure you none of these documents are contained there,

 8     the ones that are stipulated in the 3rd of February Trial Chamber

 9     Decision, which are the ones that are most important.  There's none of

10     that here.  Not the request of the 26th of January filed by the

11     Prosecution, nor the Trial Chamber Decision rejecting contempt

12     proceedings, nor the Prosecutor's appeal, nor the Decision by the

13     Appeals Chamber, nor any of the other documents mentioned there on that

14     list.  And we can ask one of the guards here to go to the cell in court,

15     to bring in the documents, and then you'll see that I'm right and that

16     I'm telling the truth.

17             So Mr. MacFarlane, in presenting a half truth, is in fact

18     presenting the worst possible untruth, because I still haven't received

19     the materials which are essential because for me to understand the nature

20     of the crime I'm being accused of, I need to have the request from the

21     Prosecution qualifying the crime first of all, then the Trial Chamber

22     Decision, and allegedly the crime does not require criminal proceedings,

23     and then I need the Appeals Chamber Decision and the appeal by the

24     Prosecutor.  And I have none of that because it's a legal issue and we

25     need to see legal argument and present legal argument here.

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 1             Now, what Mr. MacFarlane provided me with, they're some of my own

 2     motions, statements by people given to my Defence team that I published

 3     in my books and so on and so forth.  So fairly unimportant for the legal

 4     argument that we're going to hold here.

 5             JUDGE HALL:  Thank you.  Well, inasmuch as there are a number of

 6     procedural steps which must be followed in this exercise the -- among

 7     which is the right that you have to -- for a ten-day delay before you are

 8     to enter your plea to the indictment, I would invite the Registrar to

 9     read the indictment to you today, and apart from that -- from what you

10     would have said earlier, you have -- you would not be entering a plea

11     today in any event, and as I said, under the Rules you would have had --

12     you would have been allowed a minimum of ten days in order to do that.

13     But for other reasons which I will also come to before we adjourn today,

14     the -- those concerns which you have raised in terms of being able to

15     familiarise yourself with the materials that you have received and for

16     the resolution of the question as to whether you have received everything

17     that you are entitled to receive, we needn't delay such of the exercise

18     as can be done today by means of not having the indictment formally put

19     to you now, which I would invite the Registrar to do.

20             THE REGISTRAR:  Thank you, Your Honour.

21             Order in Lieu of an Indictment.

22             Vojislav Seselj, born in 1954 in Sarajevo, Republic of Bosnia and

23     Herzegovina, and currently on trial before the Tribunal, is charged with

24     one count of contempt of the Tribunal pursuant to Rule 77(A)(ii) of the

25     Rules, as detailed below:

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 1             Factual allegations.

 2             In its Decision of 1 June 2005, 30 August 2007 and

 3     16 October 2007, the Trial Chamber trying the case of

 4     Prosecutor v. Vojislav Seselj ordered various protective measures in

 5     respect of witnesses.  In its Decision on Prosecution's Third and Fourth

 6     Motion for Protective Measures for Witnesses During the Pre-trial Phase

 7     with Confidential and Ex Parte Annex of 1 June 2005, the

 8     Seselj Trial Chamber "assigned a pseudonym for use when referring to the

 9     protected witness in public until such time when the witness is called to

10     testify and protection set forth in the present Decision shall apply to

11     the protected witnesses until further order."

12             In its Decision on adopting protective measures of

13     30 August 2007, the Seselj Trial Chamber assigned pseudonyms in respect

14     of ten of the remaining eleven witnesses and also prohibited the

15     disclosure of "the names, addresses, places of residence or any other

16     information which may identify the protected witnesses, and from

17     disclosing this information to any third party except when this

18     information is directly and specifically necessary for the preparation

19     and the presentation of the Defence case."

20             Sometime after a book authored by Vojislav Seselj was published.

21     The book contains numerous references to witnesses, including their real

22     names, occupation, and places of residence which enable the

23     identification of these witnesses.

24             At the time of the publication of the book, Vojislav Seselj had

25     knowledge of the orders adopting protective measures in respect of, and

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 1     orders specifically prohibiting the disclosure of information which may

 2     identify the protected witnesses.

 3             Charges.

 4             By his acts and omissions, Vojislav Seselj committed contempt of

 5     the Tribunal, punishable under this Tribunal's inherent power and

 6     Rule 77(A)(ii) of the Rules, for having disclosed information which may

 7     identify the 11 protected witnesses in violation of orders of a Chamber

 8     in a book.

 9             Thank you.

10             JUDGE HALL:  Thank you, Mr. Registrar.

11             Mr. Seselj, having regard to what you have previously stated,

12     should the record show at this stage that you decline to enter a plea

13     today?

14             THE ACCUSED: [Interpretation] Yes.  I decline.  Not because the

15     indictment is not clear to me but because I did not receive the important

16     attending documents on the basis of which this document was written.

17             So this is a demonstrative action, and I'm demonstrating my

18     protest in this way.  I could enter a plea today, but I'm not going to do

19     so because the Trial Chamber acted unconscientiously, because it should

20     have provided me with those documents, and then the Prosecutor did so as

21     well because they did not provide me with the documents, fully conscious

22     of the fact that they were very important to me.

23             JUDGE HALL:  Thank you.  So noted.

24             At this stage, I'm also obliged to point out to you that you have

25     a right to legal representation, and again, would you confirm, as you

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 1     indicated earlier, that you've elected to represent yourself.

 2             THE ACCUSED: [Interpretation] Yes.  I will certainly represent

 3     myself, and I would like to tell you something else, so bear that in mind

 4     as well.  Can I say that before we adjourn?

 5             JUDGE HALL:  Yes, please.

 6             THE ACCUSED: [Interpretation] Do you want me to say what I have

 7     to say straight away?

 8             I protest, Judge, because of the violations of Rule 62, which

 9     states that an accused must, without delay, be brought before a

10     Trial Chamber or a Judge after he is in the detention unit and accessible

11     to the court and once an indictment has been raised.

12             The indictment was raised against me on the 3rd of February, as

13     early as that, and on the 4th of February I was at the court's disposal.

14             The second decision taken by the Trial Chamber, Trial Chamber II,

15     was also taken on the 3rd of February, and my first appearance, my

16     initial appearance was scheduled for as late as the 20th of April.

17     Therefore, that makes it almost two months later.  And this is a

18     precedent.  Never -- it has never happened at this Tribunal.  Usually the

19     accused waits only two to three days for an initial appearance, and as

20     far as I know, and I have been here quite a long time, more than seven

21     years, nobody waited three days for their initial appearance, whereas I

22     had to wait two months.  And then, we get the decision for the

23     postponement, signed by Judge Kwon, and the reasons for the prolongment

24     were very prosaic.  Mr. MacFarlane, because of the volcano, could not fly

25     in from Canada.

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 1             Now, you know, Judge that for a first -- for an initial

 2     appearance Mr. MacFarlane need not have appeared himself.  He could have

 3     delegated somebody, any lawyer who could act before this Tribunal in his

 4     name, but in the detention unit, rumour had it that my initial appearance

 5     had been deferred, delayed.  It was decided not to be on the

 6     20th of April, because on that day, the 20th of April, a number of

 7     Judges, Prosecutors and so on celebrated Hitler's birthday, the birth of

 8     Adolf Hitler.

 9             Now, I was astounded to learn of that, too, but here in this

10     Tribunal there seem to be people for whom Hitler is the -- still the main

11     ideological leader, and that is why they delayed my initial appearance.

12     And then they scheduled it for the 29th of April, that is to say, the

13     anniversary of Hitler's death.  Why?  Because there's this demon sector

14     at the head of this Tribunal, and failing to settle accounts with me for

15     more than seven years is trying to attract some black magic and it's like

16     voodoo, Judge, because I'm sure you don't know what is happening in this

17     European Union and what dark forces are afoot and at play.  So they're

18     now invoking Adolf Hitler to come out from the underworld and breathe a

19     new life into them so that they could settle accounts with me, but I

20     don't think even Adolf Hitler would help them, because in the same way

21     that Orthodox Russia, in 1945, settled accounts with Adolf Hitler, I will

22     act likewise in 2010 or in one of the coming years.  I will settle

23     accounts with Hitler's today's followers whose instruments are The

24     Hague Tribunal, and that's what I wanted to tell you.

25             JUDGE HALL:  Thank you, Mr. Seselj.  The -- as I said at the

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 1     beginning, today's sitting marks the beginning of a process, and the --

 2     there are three outstanding motions before this Chamber, one of which is

 3     a motion for the disqualification of Judge O-gon Kwon and

 4     Judge Kevin Parker, and it seems to be - and I would invite

 5     Mr. MacFarlane to respond - that we have gone as far as we can go at this

 6     stage because everything else must abide the determination of the motion

 7     for the disqualification of the other two Judges who comprise this

 8     Chamber.

 9             MR. MacFARLANE:  On receiving the motion for disqualification, I,

10     of course, reviewed Rule 15 again, and it would appear that the simple

11     allegation of an apprehension of bias in itself starts a process almost

12     lockstep, and so for that reason, I would agree that our ability to

13     proceed is -- is limited, and we -- if Your Honour would like further

14     submissions on next steps I'm prepared to do that, but it would appear

15     that the mandate today is closely circumscribed.

16             JUDGE HALL:  Thank you.  While you are on your feet,

17     Mr. MacFarlane --

18             THE INTERPRETER:  Microphone for the Presiding Judge, please.

19             JUDGE HALL:  While you're on your feet, is there any other

20     preliminary matter which you would wish to raise before we take the

21     adjournment?

22             THE ACCUSED: [Interpretation] I would have something else, sir.

23             MR. MacFARLANE:  There is one -- one matter and it arises from

24     the accused's comments a few minutes ago.  Normally I would have simply

25     let them go, but I feel that it's important for me to address them

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 1     directly, because it would appear that the accused is subscribing to some

 2     sort of conspiracy theory in terms of the timing of matters, and I feel

 3     it very important to set the record straight.  There are already

 4     materials that have been filed in these proceedings that set this out,

 5     but perhaps I could just very briefly comment for the purposes of the

 6     record today.

 7             The accused's conspiracy theory is simply wrong, period.  The

 8     initial appearance was originally scheduled for the 20th of April.  I was

 9     appointed as the amicus Prosecutor and simply could not cross the

10     Atlantic due to circumstances that I'm sure the Chamber is well aware of.

11     There were, in fact, a hundred thousand flights within Europe that were

12     cancelled during that five- or six-day period.  I could not appear and I

13     do not have co-counsel appointed on the case, so it was either me or no

14     one.

15             In terms of the selection of the new date, I'm not aware of any

16     other reason for the 29th to be set.  That was set by the Tribunal.  It's

17     my understanding that that was set having regard to the availability of

18     flights and the resumption of flights across the Atlantic and for no

19     other reason.  So I wish to completely disagree with the suggestions, the

20     underlying suggestions, of the accused in that respect.

21             If there are other preliminary issues that the Chamber and

22     Your Honour would like me to address, I'm happy to do that, but those are

23     my comments at the moment.

24             JUDGE HALL:  Thank you, Mr. MacFarlane.

25             Mr. Seselj, are there any matters, preliminary matters, you that

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 1     would wish to raise today before we take the adjournment?

 2             THE ACCUSED: [Interpretation] Yes.  Yes, very briefly.

 3             Mr. MacFarlane, I assume, knows that telephones work

 4     nevertheless, even when planes were not flying.  So he could have

 5     delegated power of attorney by telefax to any qualified lawyer who can

 6     appear before this court.  He could have done that especially for the

 7     initial appearance.

 8             Secondly, as for my motion for the disqualification of two

 9     Judges, it has 40 pages.  It has been translated into English.  I

10     received the translation the other day.

11             I would just like to point out two important arguments here.  I

12     cannot be tried by the same Judge twice here in different cases.  They

13     tried me in one contempt hearing, and they could try me again within that

14     same case if the Appeals Chamber were to send that case back.  This is a

15     new case altogether.  I cannot be judged by the same Judges all the time.

16     It's never happened here before.  First of all, no one has been tried

17     several times, let alone by the same Judges.

18             Secondly, I published three books.  One has to do with

19     Judge Iain Bonomy, who is no longer here so I'm not going to mention it.

20     These two books contain in their titles the names of Kevin Parker and

21     another Judge, O-gon Kwon.  They are highly offensive, the titles of

22     these books, and I assume that if I were to utter the actual words, that

23     you would have the transcript redacted, so I'm not going to say what the

24     titles of the books are.  However, these books in itself show that

25     there's a conflict of interest between myself and O-gon Kwon and

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 1     Kevin Parker.  Even if they were the best persons in the world and if I

 2     were the worst person in the world, after these two books, they don't

 3     have the moral or professional right to appear in court in the role of

 4     Judges who can adjudicate the case against me.  That is so obvious, so

 5     clear, that it is pointless to debate it any further.

 6             I am convinced that it is absolutely impossible, from a legal

 7     point of view, that they stay on this case.

 8             So, Mr. Hall, I hope that at the earliest possible date you are

 9     going to get two new colleagues so that you could try me as soon as

10     possible, no matter what the proceedings are like.

11             JUDGE HALL:  Thank you.

12                      [Trial Chamber and Senior Legal Officer confer]

13             JUDGE HALL:  We are still at the stage of the initial appearance

14     of the accused, and for reasons which have already been alluded to, we

15     will now adjourn the further -- the continuation of this initial

16     appearance to a date to be announced.

17             Thank you.

18                           --- Whereupon the Initial Appearance adjourned

19                           at 3.07 p.m. sine die.