Tribunal Criminal Tribunal for the Former Yugoslavia

Page 776

 1                          Wednesday, 22 November 2006

 2                          [Status Conference]

 3                          [Open session]

 4                          [The accused not present]

 5                           --- Upon commencing at 9.08 a.m.

 6            JUDGE ORIE:  Good morning to everyone.  Mr. Registrar, would you

 7    please call the case.

 8            THE REGISTRAR:  Good morning, Your Honours.  This is case number

 9    IT-03-67-PT, the Prosecutor versus Vojislav Seselj.

10            JUDGE ORIE:  Thank you, Mr. Registrar.

11            May I have the appearances?  Prosecution first.

12            MR. SAXON:  Hildegard Uertz-Retzlaff for the Prosecution with our

13    case manager Ana Katalinic.  And my name is Dan Saxon, Your Honours.

14            JUDGE ORIE:  Thank you, Mr. Saxon.  I see that stand-by counsel,

15    Mr. Hooper and Mr. O'Shea as co-stand-by counsel are present.  The Chamber

16    also establishes that Mr. Seselj, who is self-represented, is not present.

17    And the first thing the Chamber would like to do is to inquire into the

18    absence and the reasons for it.  I see that Mr. Vincent -- you're acting

19    Deputy Registrar of this Tribunal.  You're here, I take it, in

20    anticipation of questions by this Chamber on what happened this morning,

21    since Mr. Seselj seems not to appear.

22            Could you tell us what happened this morning when, I take it, as

23    usual, Mr. Seselj was invited to be ready for transportation to the

24    Tribunal and to appear at this Status Conference?

25            MR. VINCENT:  Your Honours, yes, I can confirm he was seen by the

Page 777

 1    commander of the Detention Unit and intimated that he felt too weak to

 2    attend the hearing this morning.

 3            JUDGE ORIE:  And did he express what the reason was for feeling

 4    too weak?

 5            MR. VINCENT:  Well, he said that his voice was not as strong as he

 6    would like and he was not keen on the transportation arrangements.  He

 7    felt that he wouldn't be able to stand up to that.

 8            JUDGE ORIE:  Yes.  Did he ask for any additional facilities, for

 9    example, wheelchair or --

10            MR. VINCENT:  He's asked for nothing, Your Honours, no.

11            JUDGE ORIE:  Yes.

12            JUDGE HOEPFEL:  Can you explain what were the reasons for that

13    weak state?

14            MR. VINCENT:  The reasons for the weak state are that Mr. Seselj

15    has been on hunger strike since the Saturday before last.

16            JUDGE ORIE:  Yes.  Then, Mr. Vincent, can you tell us when you saw

17    Mr. Seselj for the last time.

18            MR. VINCENT:  Your Honour, the last time I saw him was at half

19    past four yesterday afternoon, when I visited the Detention Unit and spent

20    something like 40 minutes in his company.

21            JUDGE ORIE:  Yes.  Did you have a conversation with him at that

22    time?

23            MR. VINCENT:  I did have a conversation with him, yes.

24            JUDGE ORIE:  And I'm not asking about the content of the

25    conversation, but was this a conversation of a type which I would say

Page 778

 1    would normally take place between two persons who understand each other,

 2    who express themselves clearly?  Of course, I'm especially interested in

 3    Mr. Seselj's state of mind.  Did he give you the impression that he was

 4    able to normally communicate, I would say, at an intellectual level as you

 5    would expect normally?

 6            MR. VINCENT:  He most certainly was, Your Honours.  The

 7    conversation I'm aware you and your colleagues would not be wanting to

 8    inquire into details.  The conversation was purely administrative so far

 9    as the registry's approach to assisting Mr. Seselj to take part in the

10    trial process.  I saw him on Monday and had a conversation slightly

11    shorter with him.  Yesterday was a longer conversation.  And during that

12    time, and of course there was an interpreter there, during that time we

13    covered a range of subjects and, yes, he certainly gave the impression

14    that he was more than capable of not only partaking in the conversation

15    but understanding the nature of it.

16            JUDGE ORIE:  Yes.  Could you tell us -- I know that you're not an

17    expert, so I'm asking you just your impression as a lay person, was Mr.

18    Seselj seated in a chair, was he using any additional tools to -- well, to

19    stand or was he lying down?  Could you give us an impression about what a

20    layman would consider to be his physical condition when you spoke to him.

21            MR. VINCENT:  Certainly, it may help Your Honours if I describe,

22    just very briefly, the conditions under which I saw Mr. Seselj.

23            JUDGE ORIE:  Please do so.

24            MR. VINCENT:  They were very much as when I saw him on the

25    previous day.  I was taken to the detention commander's office, a language

Page 779

 1    assistant was provided and I waited for Mr. Seselj to be brought up from

 2    his accommodation.  He walked up under his own steam, as it were, and came

 3    and walked into the detention commander's office and sat down and then

 4    conducted the conversation with me.  After that, he then got up and left

 5    and was then escorted back down to his accommodation.

 6            JUDGE ORIE:  Did he use a walking stick or something of that kind?

 7            MR. VINCENT:  No, he didn't.

 8            JUDGE ORIE:  He didn't.  Were you informed by any official of the

 9    Detention Unit whether Mr. Seselj used the opportunity to be outdoors, to

10    have fresh an air and were you informed on when he used that opportunity,

11    if at all?

12            MR. VINCENT:  The arrangements in place, for Mr. Seselj, Your

13    Honours, is that I receive a report every morning from the Detention Unit

14    as to the whole situation as far as Mr. Seselj and his health and his

15    activities during the previous 24 hours.  Certainly, he has not been

16    taking part in any of the sporting sessions on offer but he has been

17    taking advantage of what is known as the fresh air session, so he is --

18    has been mixing with the other inmates and has been taking that

19    opportunity to get fresh air.  I can go into more detail, should you wish,

20    in terms of his activities throughout the 24 hour period, particularly so

21    far as the night-time is concerned, but I await your questions on that.

22            JUDGE ORIE:  Yes.  Then another matter, Mr. Vincent.  This Chamber

23    indirectly was informed about a hunger strike, not only this morning by

24    you, but also because administrative decisions have been taken to cope

25    with the situation of the hunger strike.  This Chamber has not been

Page 780

 1    informed directly by Mr. Seselj about the reasons for his hunger strike.

 2    Did Mr. Seselj inform the Registry about the reasons for his hunger

 3    strike?

 4            MR. VINCENT:  Well, initially, Your Honour, and I'm sure you'll

 5    stop me if I'm going back too far, but initially we had a communication

 6    from those purporting to represent Mr. Seselj or those who he would want

 7    to represent him.  And, of course, I don't refer to stand-by counsel in

 8    this respect as that was not -- they notified us that, in fact, he was --

 9    he was going on hunger strike.  The Registry responded to that, as a

10    matter of courtesy, because it had no legal standing as far as we were

11    concerned.  It wasn't a filing.  So that was the first official

12    notification that we've had.  Since then, through the Detention Unit, and

13    then face to face with Mr. Seselj, he has confirmed, in fact, that he has

14    been on hunger strike.

15            JUDGE ORIE:  Yes.  Did he also confirm any reasons given for his

16    hunger strike?

17            MR. VINCENT:  Yes.  He's made it very clear that his reasons are

18    attached to those requests that he's made on previous occasions appearing

19    before Your Honours.

20            JUDGE ORIE:  Yes.  Could you specify a specific request because a

21    lot of requests have been made by Mr. Seselj over time.

22            MR. VINCENT:  Well, firstly, Your Honours, was the question of the

23    limitation on the visits by his wife, which was in connection with an

24    order made at the request of the Prosecution.  Secondly, he has made a

25    number of requests so far as the translation of documents to enable him to

Page 781

 1    conduct his defence.  He has also asked for stand-by counsel to be

 2    dismissed.  And in addition to that, he has asked for his own legal

 3    advisers on his nomination to be authorised to appear before Your Honours.

 4            So those -- in summation, those are the four key areas which he

 5    has consistently referred to.  And, of course, as far as the first matter

 6    is concerned, so far as the visitations by his wife are concerned, is that

 7    that order has now lapsed and he is well aware because I gave him a letter

 8    on Monday of this week that that matter now is something which is now not

 9    a matter of concern for him.  So it's the three remaining generic

10    requests, accommodation, representation, and the translation of documents.

11            JUDGE ORIE:  Yes.  So the reasons given by Mr. Seselj are matching

12    the reasons given by those who addressed you although without any legal

13    standing.

14            MR. VINCENT:  Your Honours, yes.

15            JUDGE ORIE:  Yes.  Thank you.

16                          [Trial Chamber confers]

17            JUDGE ORIE:  Mr. Vincent, the information you gave us about the

18    weak state of this morning, how did you receive that information?  Did you

19    get that from --

20            MR. VINCENT:  That was by telephone, Your Honours, from Mr.

21    McFadden, the detention commander.

22            JUDGE ORIE:  Yes.  And Mr. McFadden observed what Mr. Seselj said

23    in this respect himself?

24            MR. VINCENT:  He did, Your Honours, yes.

25            JUDGE ORIE:  Yes.

Page 782

 1                          [Trial Chamber confers]

 2            JUDGE ORIE:  Thank you, Mr. Vincent, for your answers.

 3                          [Trial chamber and legal officer confer]

 4                          [Trial Chamber confers]

 5            JUDGE ORIE:  In the present situation, the Chamber would like to

 6    issue a warning.  The Chamber has been informed that Mr. Seselj is on a

 7    hunger strike.  The Chamber has also been informed that Mr. Seselj felt

 8    too weak to attend the Status Conference.  And on the basis of the

 9    information this Chamber received and in the absence of any direct message

10    from the accused addressed to the Chamber, the Chamber cannot but conclude

11    that the physical condition of Mr. Seselj is related to his hunger strike.

12            The Chamber considers that whether this self-induced physical

13    condition prevents Mr. Seselj from attending today's hearing, or whether

14    Mr. Seselj has wilfully decided not to attend the hearing, Mr. Seselj's

15    absence, not further explained by him, constitutes disruptive conduct.

16    The Chamber hereby warns Mr. Seselj that his behaviour may result in the

17    temporary takeover of the defence by stand-by counsel during today's

18    Status Conference, in accordance with the Chamber's order of the 25th of

19    October, paragraph 5(h).

20            The Chamber hereby instructs the Registrar to immediately deliver

21    this warning to Mr. Seselj at the United Nations Detention Unit.  Should

22    Mr. Seselj wish to appear, he must give immediate notice to the personnel

23    of the United Nations Detention Unit and appear before this Chamber as

24    soon as possible today, before 12.00.  The Registrar is then also

25    instructed to arrange for Mr. Seselj to be brought to court.

Page 783

 1            Since it will take some time to deliver this warning to Mr.

 2    Seselj, we will adjourn.  The parties are requested to stay stand-by and

 3    we will not resume any earlier than 10.00.

 4            We stand adjourned.

 5                           --- Break taken at 9.24 a.m.

 6                           --- On resuming at 11.11 a.m.

 7            JUDGE ORIE:  The hearing is resumed.

 8            The Chamber establishes that Mr. Seselj is not present in the

 9    courtroom.

10            Mr. Vincent, could you report back to the Chamber.  First

11    question, has the warning that was issued this morning by the Trial

12    Chamber, has it been read out to the accused?

13            MR. VINCENT:  Your Honours, yes, it has been read out.  It was

14    read firstly by a language assistant in the Detention Unit and it was then

15    followed by a request by Mr. Seselj for that warning to be handed to him

16    in translated form and that was done as well.

17            JUDGE ORIE:  Yes.  Did Mr. Seselj, in any way respond to the

18    warning?

19            MR. VINCENT:  He did, Your Honours, and it was in the presence of

20    Klaus Hansen, who is one of the deputy commanders at the Detention Unit.

21            JUDGE ORIE:  Yes.  And you were informed by whom?

22            MR. VINCENT:  Mr. Hansen phoned me and gave me the message

23    verbatim.

24            JUDGE ORIE:  Could you tell us how Mr. Seselj responded, what

25    language did he use or what was the message?

Page 784

 1            MR. VINCENT:  The message was translated, but he spoke to Mr.

 2    Hansen and he said -- translation -- and I quote, is, "No, I am not going.

 3    They are all idiots if they think that I am going."  That's all that he

 4    said.

 5            JUDGE ORIE:  Yes.

 6                          [Trial Chamber confers]

 7            JUDGE ORIE:  Mr. Vincent, first of all, thank you for reporting

 8    back to the Chamber.  I would like to invite you to stay in this courtroom

 9    because there might be some other issues on which we would want to seek

10    further information, which perhaps you could provide to us.  But let's

11    first deal with the absence of Mr. Seselj at this moment.

12            The Trial Chamber has now been informed that the warning was read

13    out, the warning that was read out in this courtroom before the break, and

14    has been delivered and read out to the accused in his own language.

15            The Trial Chamber has further been informed by Mr. Vincent that

16    the accused has said that he would not attend today's Status Conference.

17            On the basis of the warning that was issued earlier today, the

18    Trial Chamber hereby decides, in accordance with paragraph 5(h) of the

19    Trial Chamber's order of the 25th of October 2006, that stand-by counsel

20    shall take over the conduct of the defence of the accused for the duration

21    of today's Status Conference.

22            Mr. Hooper, that means that you are activated again and that

23    you're acting counsel at this moment.

24            MR. HOOPER:  Understood.  Thank you.

25            JUDGE ORIE:  Yes.  Then we'll proceed with the agenda.

Page 785

 1            One of the things the Chamber would like to be informed about,

 2    because it was announced earlier that the Registry would present to the

 3    accused what facilities he could use when representing himself.  Mr.

 4    Vincent, could you update the Trial Chamber on whether Mr. Seselj was

 5    informed about facilities and what these facilities are, not necessarily

 6    to be repeated all in this courtroom, but if, for example, they would be

 7    put on paper somewhere, perhaps filing of what was offered to Mr. Seselj

 8    might help us out.  Could you please report to us?

 9            MR. VINCENT:  Your Honours, yes.  And if you'll bear with me just

10    a second, of course, Mr. Seselj, during the course of a number of

11    appearances, has made a number of requests.  And the view taken by the

12    Registry was that perhaps it would help Mr. Seselj, as well as the Trial

13    Chamber and everyone else concerned, if we were able to pull those

14    together into one single response to Mr. Seselj.  And so work having been

15    done on that, on the 17th of November, a memorandum was composed which

16    addressed, to the best of the Registry's ability, the matters that Mr.

17    Seselj had raised and that was translated and it was then delivered to --

18    by me to him on Monday of this week.  So that gave him an opportunity to

19    discuss with me, if he required to do so, those particular facilities.

20            Those facilities which, of course, I'm only too prepared to go

21    into in some detail, but basically covered the requests which we discussed

22    before the adjournment that he'd made, which were the question of

23    accommodation in the Detention Unit to enable him to fulfil his

24    self-representation and a number of matters which I'm sure you wouldn't

25    want me to go into too much detail, but obvious things such as telephone,

Page 786

 1    fax, et cetera.  And thereafter, of course, the authorisation of those

 2    nominated by him to conduct his defence.  So it was those kind of

 3    facilities that we addressed and I have the memorandum here, the 17th of

 4    November, which I'm more than happy to produce to the Court if necessary.

 5            JUDGE ORIE:  Yes.

 6                          [Trial Chamber confers]

 7            JUDGE ORIE:  Mr. Vincent, you're invited to file that document so

 8    that the Chamber is fully aware of what was offered to Mr. Seselj.

 9            And just one additional question.  You mentioned a few items.  Is

10    equipment which gives access to audio CD-ROMs or video DVD, was that

11    included as well?

12            MR. VINCENT:  It's the whole raft of materials, Your Honour, yes.

13            JUDGE ORIE:  Yes.  Thank you for that.  So we would like to see

14    the document.  So if you would please be so kind to file it, so that it's

15    among -- it's part of the record of this case.

16            Then I'd like to be updated and briefly informed, although it's

17    not the primary responsibility of this Chamber, although this Chamber of

18    course has and hereby expresses its concerns about the potential damage to

19    the health of Mr. Seselj, which may be caused by his hunger strike.  But

20    what the Chamber would like to know is, briefly, what kind of action is

21    taken so as to make sure that no damage will occur which could have been

22    prevented.  What action, what measures have been taken in order to look

23    after the condition of Mr. Seselj as good as is possible under the present

24    circumstances?

25            MR. VINCENT:  Your Honours, yes, perhaps firstly, and Your Honour

Page 787

 1    referred to make, with respect, quite correctly as a lay person in these

 2    matters but I will certainly do my best to -- on the advice of the -- of

 3    the doctor at the Unit.  Firstly, the term hunger strike has been used

 4    fairly extensively outside this Trial Chamber.  The line that the Registry

 5    is taken on this and always has done is that, in fact, Mr. Seselj has from

 6    the outset, refused to take the food that's been offered to him by the

 7    Detention Unit.  He continues to take fluids, et cetera.  It may seem just

 8    a, perhaps, a play on words, but certainly that's the approach that we are

 9    adopting there, although hunger strike is normally the phrase which is the

10    populist phrase for this.  So far as the conditions are concerned, the

11    only difficulty I have, Your Honours, so far as one matter is concerned,

12    which is quite crucial, is a matter which is the subject of a confidential

13    filing by the Registry and with the Trial Chamber.

14            JUDGE ORIE:  Yes.  If there is -- the Chamber is aware, so it

15    doesn't seek any additional information on any matter which is covered by

16    confidential submissions.

17            MR. VINCENT:  Grateful.  Then, Your Honour, the -- there has been

18    a very rigorous routine put in place so far as Mr. Seselj's concerned.

19    The Registry receives a daily report, each morning, on Mr. Seselj's

20    activities, et cetera and ranging from the liquids he's taking to

21    confirmation as to whether he's taking the food on offer or not.  In

22    addition to that, I'm also informed as to whether he takes any exercise

23    and indeed in terms of his sleeping habits, et cetera, et cetera.  He, of

24    course, continues to refuse any kind of medication of any sort, major or

25    minor, and he has no contact with the medical doctor and nurse, although

Page 788

 1    he does receive them.

 2            Dr. Falke, the Detention Unit doctor, has provided us with

 3    extensive advice as to how to deal with the situation, because if it does

 4    continue, obviously, concerns grow, and indeed, I have only just come from

 5    the phone from talking to Dr. Falke about those arrangements and he is

 6    more than happy that everything in place meets entirely with the advice

 7    from the World Health Organization so far as matters such as this are

 8    concerned.  We also have and the detention commander has put in place a

 9    very rigorous routine so far as all personnel who are responsible for

10    observing Mr. Seselj throughout the 24-hour period of each day, and there

11    has been a very detailed set of operations put in place to deal with any

12    difficulties that may occur in the coming days.

13                          [Trial Chamber confers]

14            JUDGE ORIE:  Thank you for this report, Mr. Vincent.  The Chamber

15    has no further questions on the matter.

16            That means that there are no other subjects at this moment on

17    which the Chamber would like to seek information from you.  So, please

18    feel free to go, if you want to.

19            MR. VINCENT:  I'm grateful, Your Honours.  Thank you.

20            JUDGE ORIE:  Then the next issue I'd like to deal with is the

21    preparation of the parties for the commencement of trial, and the Chamber

22    would like to note the following developments.  If there is any need to

23    respond to it, the parties are invited to do so.

24            First, the reduced indictment was filed on the 10th of November

25    2006, in both English and a B/C/S translation.  It was provided to the

Page 789

 1    accused on the 13th of November 2006, but not accepted by him until the

 2    14th of November.

 3            The accused's application for certification to appeal the

 4    Chamber's decision on the request to amend the Prosecution's pre-trial

 5    brief was denied on the 14th of November 2006.

 6            A decision on payment of expenses will be issued today or within

 7    the next few days.

 8            The Defence pre-trial brief remains due on the 23rd of November

 9    2006, that is tomorrow.

10            The Chamber will issue a decision setting out its written reasons,

11    or rather, setting out in writing its reasons for its order in relation to

12    the Defence pre-trial brief today.

13            The Pre-Trial Conference will be held on the 27th of November

14    2006.

15            The Prosecution's opening statement and the accused's unsworn

16    statement remains due on the 27th and the 28th of November 2006

17    respectively.

18            And the date of testimony of the first Prosecution witness remains

19    the 6th of December 2006.

20            There is an item which I'd like to deal with, but we have to go

21    into private session for a while to deal with it.

22      [Private session] [Confidentiality partially lifted by order of Trial Chamber]

23            THE REGISTRAR:  Your Honours, we are now in private session.

24            JUDGE ORIE:  Thank you, Mr. Registrar.

25            All screens are switched off?  Yes.

Page 790

 1            On the 13th of October 2006, the Prosecution filed a motion for

 2    testimony of Witness VS-053 to be heard via video conference link

 3    according to Rule 71 bis.  The motion was translated and received by the

 4    accused on the 10th of November 2006.

 5  (redacted)

 6  (redacted)

 7  (redacted)

 8  (redacted)

 9  (redacted)

10  (redacted)

11  (redacted)

12  (redacted)

13  (redacted)

14  (redacted)

15            The accused has filed a response to the Prosecution's motion of

16    the 13th of October.  The accused's response did not specify the total

17    amount of words but, nevertheless, the Trial Chamber exceptionally

18    accepted the accused's response, since it obviously did not exceed the

19    word limit of 800 words.  In his response, the accused opposed the

20    Prosecution's motion and argued that the Prosecution had not shown that

21    the witness was incapable or unprepared to appear before the Tribunal,

22    that the certificate accompanying the motion was unsigned and that the

23    doctor who allegedly had issued the certificate was not identified.

24            The Chamber would like to invite the Prosecution to reply to this

25    response by the accused, specifically in terms of signature, whether the

Page 791

 1    doctor was identified, these matters.  Mr. Saxon?

 2            MR. SAXON:  Your Honour, the reference is that the accused appears

 3    to make to unsigned and unidentified, merely relates to the fact that the

 4    Prosecution redacted the name of the physician who signed the statement,

 5    redacted the signature, and redacted the place of that physician's

 6    practice.  That was so as not to divulge the identity of the witness or

 7    the physician or his place of residence to the accused.

 8            JUDGE ORIE:  Was this just -- help me remind.  Was this in any way

 9    indicated?  Did you ask any permission to redact that and was the

10    redaction also meant to be redaction to the Chamber?

11            MR. SAXON:  Your Honour, to the best of my knowledge, there was no

12    specific permission sought to make such a redaction.  No, Your Honour.

13    And I believe the -- if I have -- can I have one moment, Your Honour,

14    please?

15                          [Prosecution counsel confer]

16            MR. SAXON:  The Chamber also received --

17                          [Trial Chamber confers]

18            JUDGE ORIE:  Mr. Saxon?

19            MR. SAXON:  Your Honour, the Prosecution filed this motion and the

20    certificate confidentially, so the certificate was not filed in an

21    unredacted form on an ex parte basis with the Trial Chamber.  If the Trial

22    Chamber would like to see an unredacted version of this certificate, we

23    can certainly provide that to the Chamber.

24            JUDGE ORIE:  Yes.  It's a bit surprising, Mr. Saxon, that we first

25    have to read the response of the accused and then find out that we were

Page 792

 1    presented with a redacted version of something.  We were not aware of it

 2    being redacted, and that not one word had been said about this.  The

 3    Chamber will consider whether it is an appropriate solution, as you

 4    suggested, but not after having heard from Mr. Hooper, acting Defence

 5    counsel, what his position in this respect would be.

 6            MR. HOOPER:  I think at present, you, the Judges, should see the

 7    unredacted document.

 8            JUDGE ORIE:  Yes.  And would you be satisfied if it would be filed

 9    ex parte so that you couldn't see it?

10            MR. HOOPER:  Yes.  And the matters we would invite the Chamber to

11    consider is the degree of identification that's potential from the

12    document.

13            JUDGE ORIE:  Yes.  We'll consider that, whether we'll follow the

14    suggestion given by Mr. Saxon and commented upon by Mr. Hooper.

15            Then I'd like to move to another request - we are still in private

16    session - to another request for a video conference link.

17  (redacted)

18  (redacted)

19  (redacted)

20  (redacted)

21  (redacted)

22  (redacted)

23  (redacted)

24  (redacted)

25  (redacted)

Page 793











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Page 794

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20            MS. UERTZ-RETZLAFF:  Your Honour, actually my colleague, Mr.

21    Saxon, had looked into this matter and we thought, when we filed our

22    motion, that medical documentation may not be necessary for the reasons

23    that I think Mr. Saxon can better discuss because he has looked into the

24    legal issues related to such a motion that we filed.

25            JUDGE ORIE:  Please, Mr. Saxon.

Page 795

 1            MR. SAXON:  Your Honours, if you will indulge me briefly for a

 2    minute or two.  The practice of this Tribunal, although not uniform, and

 3    the jurisprudence, generally takes a broad and rather liberal view to

 4    requests that a witness be permitted to testify via videolink and please

 5    permit me to give you just a few examples in the recent history of this

 6    Tribunal.

 7            If you go back to April of 2004, in the Strugar case, IT-01-42,

 8    the Trial Chamber in that case had arranged to hold a hearing with some

 9    expert witnesses to determine if one of the accused was competent to stand

10    trial.  At a Status Conference on the 1st of April 2004, pages 4324 to

11    4325 of the transcript, the Presiding Judge ruled that both the

12    Prosecution and the Defence should call an expert witness to provide

13    expertise at the competency hearing.  And the Presiding Judge then said

14    this and I quote, "Expert authors may give evidence by videolink if that

15    is more practical."  No higher standard was set, no additional criteria

16    were requested.  And, indeed, on the 16th of April in that case,

17    Prosecution made an oral application that its expert witness, Dr. Bennett

18    Bloom be granted permission to testify via videolink from the United

19    States because he was unable to travel to The Hague due to, "A family

20    illness."  Strugar Trial Chamber, on that same day, issued a written order

21    finding that it was in the interests of justice, pursuant to Rule 71 bis,

22    to hear the witness via videolink.

23            More recently, Your Honours, in the Milutinovic et al case, on the

24    25th of October of this year, the Trial Chamber rejected a Prosecution

25    motion seeking permission for a witness to testify via videolink on the

Page 796

 1    grounds that the Prosecution had failed to provide a medical certificate

 2    substantiating a witness's claim that he had a heart condition which

 3    prevented him from travelling to The Hague.

 4            However, Your Honours, that same Trial Chamber, in the same trial,

 5    just six days later, on the 1st of November 2006, granted a Prosecution

 6    motion for permission for a witness to testify via videolink.  And the

 7    basis of the Prosecution's motion was that the particular witness had no

 8    alternative caretaker for her children, and therefore was unable or

 9    unwilling to travel to the Netherlands.  No independent evidence of the

10    witness's circumstances were submitted in support of that motion.

11            Even more recently, Your Honours, in the ongoing trial of Milan

12    Martic, the Defence, on the 7th of November, submitted a motion for

13    testimony via videolink for an expert witness, Professor Smilja Avramov.

14    The basis of the motion was simply that the witness's age and ill health

15    prevented her from travelling to The Hague.  No independent evidence of

16    the witness's condition was provided.  And just 10 days ago, the Trial

17    Chamber granted that motion on the 10th of November, again, finding that

18    it was in the interests of justice that Professor Avramov testify via

19    videolink.

20            So although the jurisprudence and practice is not uniform,

21    Prosecution submits that clearly there is a trend for Trial Chambers to

22    take a rather low threshold when determining when the interests of justice

23    would support the use of videolink testimony.  We simply wanted to bring

24    that to Your Honour's attention, Your Honour.

25            JUDGE ORIE:  Yes.  Thank you.

Page 797

 1            Mr. Hooper, would you like to respond to submissions made by Mr.

 2    Saxon?

 3            MR. HOOPER:  Merely that our understanding is that one of criteria

 4    for videolink is that the witness is, for example, unable to attend the

 5    trial and there has not been a sufficiency of evidence in our submission

 6    in respect of this witness to support that.  There seems to have been a

 7    considerable amount of effort that's gone into not getting him a doctor

 8    and thinking of arguments not to get him a doctor, but it's a

 9    straightforward, in our submission, probably straightforward act, to get a

10    doctor to him to see if he is in fact capable of coming to give evidence.

11       And on behalf of the accused, we would ask that that, in fact, be the

12    policy adopted in this case.

13            JUDGE ORIE:  Mr. Saxon, since you're on your feet, I take it that

14    you want to reply.

15            MR. SAXON:  I hope that my learned colleague was not implying that

16    the Prosecution was in any way trying to dissuade or impede this

17    particular witness's ability or possibility of seeing a doctor.  If that

18    was the intention of my learned colleague, certainly I can assure the

19    Chamber that nothing is further from the truth.  Second of all, the --

20            JUDGE ORIE:  I'd like to have a response to that immediately.  Was

21    that your suggestion, Mr. Hooper?

22            MR. HOOPER:  No.

23            JUDGE ORIE:  No.  Please proceed, Mr. Saxon.

24            MR. SAXON:  Second of all, based on the jurisprudence beginning

25    from the Tadic case, this is a disjunctive test, not a conjunctive test.

Page 798

 1    The jurisprudence says a witness that is unable or unwilling to come to

 2    The Hague may qualify to testify under videolink.  That is my only

 3    comment, Your Honour.

 4            JUDGE ORIE:  Thank you.  The Chamber will consider the matter and

 5    decide either to seek more information or to decide on the motion based on

 6    the submissions made by the parties until now.

 7            I'd like to move now back into public session.

 8                          [Open session]

 9            THE REGISTRAR:  Your Honours, we are now in open session.

10            JUDGE ORIE:  I'd like to first give a clarification on behalf of

11    the Chamber in relation to a decision on protective measures.

12            I first would like to recall the history of the matter.

13            At the last Status Conference that was on the 8th of November, the

14    Chamber issued additional protective measures for Witness VS-054.

15    Protective measures were first issued in relation to VS-054 in the

16    decision of the Chamber on the 6th of July 2005.  The relevant paragraph

17    from the decision reads, "The Prosecution shall disclose to the accused

18    and to the stand-by counsel the identifying information regarding VS-054

19    no later than 30 days before the commencement of trial or unless otherwise

20    ordered by the Chamber."

21            At the last Status Conference, the Chamber was called upon to

22    consider a deadline for the Defence to submit a pre-trial brief.  In

23    setting the deadline for the brief, the issue of a start date for the

24    trial was also considered and was set for the 27th of November.  Hence, a

25    firm start date for the commencement of trial, subsequent to the Appeals

Page 799

 1    Chamber decision of the 20th of October, was only confirmed on the 8th of

 2    November.  At this point, the date for disclosure, 30 days prior to the

 3    commencement of trial, became due, and the Chamber therefore ordered the

 4    immediate disclosure of material relating to Witness VS-054 to the

 5    accused.

 6            The Chamber is aware that disclosure of material in relation to

 7    VS-054, which was completed on the 8th of November, is less than 30 days

 8    before the commencement of trial.  Commencement of trial set for the 27th

 9    of November.  In scheduling the start of the date of trial, the Chamber

10    weighed the possibility of a further delay to the commencement of the

11    trial against a previous order to disclose material to the accused on a

12    protected witness not later than 30 days before trial.

13            In reaching its decision, the Chamber considered the necessity of

14    avoiding any further delays to the start of trial as more important than

15    allowing the full 30 days to review disclosed material.  Moreover, the

16    Chamber considered the issue of whether a start date of the 27th of

17    November allowed adequate time for the accused to prepare for Witness

18    VS-054.  In this regard, the fact that the first witness is not scheduled

19    to appear until the 6th of December also influenced the Chamber's

20    decision, as did the fact that the trial is beginning in a staggered

21    manner, sitting only two days a week in the first week of the trial and

22    three days in the second week.

23            For these reasons, the Chamber considers that the need for a

24    timely commencement of trial and consideration of the fact that the

25    accused would have a sufficient period of time to prepare for the witness

Page 800

 1    before the witness is heard, justifies the disclosure in relation to

 2    VS-054 less than 30 days prior to the commencement of trial.

 3                          [Trial Chamber confers]

 4            JUDGE ORIE:  The Chamber adds that, if necessary, the Chamber will

 5    revisit the issue of whether the Defence has had adequate time to prepare

 6    for the cross-examination of this witness once that witness has appeared

 7    to testify.

 8            Yes, Mr. Saxon?

 9            MR. SAXON:  Your Honour, in the interests of transparency, I must

10    inform the Chamber of one matter.  That is simply that today the

11    Prosecution will attempt to provide some hard copy disclosure to the

12    accused Seselj, and in that disclosure, there are several documents that

13    also pertain to VS-054.  It is not a lot of material, but it is material

14    that the accused would be getting for the first time and I must inform the

15    Chamber of that now.

16            JUDGE ORIE:  That was not included in the 8th of November

17    disclosure?

18            MR. SAXON:  Correct, Your Honour.  It was mentioned on our exhibit

19    list, but it was not disclosed on the 8th of November, and it is something

20    that we have realised by reviewing our disclosure work over the past few

21    days.

22            JUDGE ORIE:  And that was just by mistake?

23            MR. SAXON:  Correct, Your Honour.  And it is also by mistake and

24    also because exhibits have come to the attention of the Prosecution during

25    witness proofing more recently.

Page 801

 1            JUDGE ORIE:  Yes.  Well, Mr. Hooper?

 2            MR. HOOPER:  Yes.  Can I also draw to your attention that there

 3    was another oversight and that was that none of the material relating to

 4    VS-54 was served on stand-by counsel, on us.  And we drew the attention of

 5    the Prosecution to this, as a result of which, I think we received a CD of

 6    disclosure on the 17th of November, on Friday, and we further discussed

 7    the position this morning.  I've indicated that, as best as we are able,

 8    that is as stand-by counsel, and you'll appreciate the implication of

 9    that, that we would try and accommodate the Prosecution, but that from our

10    standpoint, we might invite the Chamber to hold the Prosecution to their

11    duty to give us better notice than the 17th of November for this witness

12    and that we couldn't guarantee that the accused would necessarily go along

13    in any event with any accommodation that we might propose.

14            JUDGE ORIE:  Yes.  You reserve your position, Mr. Hooper?

15            MR. HOOPER:  Yes.

16            JUDGE ORIE:  That's clear.  Mr. Saxon, was that by mistake as

17    well, assuming that what Mr. Hooper just told us reflects what happened?

18            MR. SAXON:  Yes, Your Honour, simply an oversight.

19            JUDGE ORIE:  Yes.  Mr. Saxon, there is a theatre play which is

20    called, "A comedy of errors."  The OTP should take care that this trial

21    will not become a tragedy of errors.

22            The Chamber would like to be informed specifically on what

23    material was disclosed only later to the accused, to have full information

24    on what he missed in first instance and what he received only later.  Yes?

25    Not necessarily now.  You can put it down on paper and that the Chamber at

Page 802

 1    least is informed about it.  Yes?  Any other matter on this 30-day

 2    disclosure issue?

 3            If not, I'd like to move to another item, which may appear not to

 4    be very relevant in the absence of the accused, but the Chamber would like

 5    to have the accused provided with a video recording of this Status

 6    Conference so that he's fully informed on whatever happened here and for

 7    that reason, I'll go into that matter anyhow.

 8            On the 10th of November of this year, the Registry returned four

 9    submissions to the accused that had been submitted on the 6th of November

10    2006.  The submissions numbering 209 to 212 were returned because they

11    exceeded the word limit or because they did not state the word count in

12    compliance with the Chamber's decision of the 19th of June of this year.

13    That decision set a word limit of 800 words for filings by the accused,

14    unless prior authorisation had been granted to exceed the word limit on

15    the basis of good cause, and that each filing contains a word count at the

16    end of the submission before the signature line.  Three of the accused's

17    submissions ranged from 30.000 to 72.000 words.

18            Two of these submissions were responses to the reports of

19    Prosecution expert witnesses Anthony Oberschall and Ives Tomic and one was

20    a response to the Prosecution's motion on adjudicated facts.

21            In relation to the expert reports, Mr. Seselj, in the past, at a

22    Status Conference on the 4th of July of this year, indicated that he

23    intended to cross-examine these two expert witnesses, found on transcript

24    page 546.  Also, on the 24th of March 2006, Mr. Seselj filed a submission

25    on the expert report of Mr. Oberschall, indicating that he objected to the

Page 803

 1    report and intended to cross-examine the expert witness.  The Trial

 2    Chamber hereby decides that the two expert witnesses I just mentioned

 3    shall be called for cross-examination.

 4            Another one of the filings made by the accused on the 6th of

 5    November 2006, I'm referring to submission number 201 -- 210, was a

 6    response to the Prosecution's motion on adjudicated facts.  On the 12th of

 7    July of this year, the Trial Chamber had issued a decision granting the

 8    accused a specific exception to file a response to the Prosecution's

 9    motion on adjudicated facts of up to 5.000 words.  The filing that was

10    returned to the accused was 47.193 words.

11            At the Status Conference on the 4th of July, the accused was

12    instructed how to proceed when responding to a motion on adjudicated

13    facts.  I informed Mr. Seselj that he should focus on the criteria which

14    are accepted in the case law of the Tribunal for the admission of

15    adjudicated facts and mentioned, for example, that it should be facts

16    rather than legal findings and that it should not be facts established on

17    the basis of a plea agreement.  I also informed the accused that facts

18    established in first instance cannot be taken judicial notice of unless

19    the Appeals Chamber has confirmed them or if they are not challenged on

20    appeal.  Furthermore, I informed Mr. Seselj on the 4th of July, that even

21    if an adjudicated fact has been taken judicial notice of, that there still

22    is an opportunity, although within certain limits, to challenge that fact

23    during trial.

24            The filing of Mr. Seselj on the 6th of November was more than

25    47.000 words instead of the exceptional 5.000 words limit that was set by

Page 804

 1    the Chamber.  The other two filings on expert witnesses were also tens of

 2    thousands of words over the usual 800-word limit.

 3            In this respect, the Chamber also recalls the response by the

 4    accused to the Prosecution's motion for the testimony of Witness VS-053 to

 5    be heard via video conference.  That submission was without a word count

 6    and also in violation of the Chamber's decision on the 19th of June 2006.

 7    The Chamber anyway accepted that response for reasons given before, and

 8    the Chamber does not consider the violation in itself serious enough for a

 9    warning.  However, here, the Chamber considers the violation, together

10    with other violations of the decision of the 19th of June 2006.

11            The Chamber therefore warns the accused, which will be able to

12    hear this warning by watching the video that will be provided to him,

13    warns the accused, that a persistent non-compliance with the Chamber's

14    decision on word limits is a form of obstructionist conduct.  In our

15    decision on assignment of counsel, a decision that has been reversed, the

16    Chamber identified the ongoing filing of oversized motions as persistently

17    abusive.  If the accused would continue to submit oversized filings, the

18    Chamber may consider imposing counsel upon the accused, of course, after

19    having given an opportunity for him to be heard.

20            I move to the next item.

21                          [Trial Chamber confers]

22            JUDGE ORIE:  To the extent that there may have been any confusion

23    when I just referred to the decision to assign counsel, where I said that

24    the decision was reversed, that the Appeals Chamber did not reverse the

25    decision on incorrectness of the findings of the Chamber in this respect.

Page 805

 1    That's the reason why the Chamber, at this moment, refers to that

 2    decision, although for other reasons, the decision finally due to the

 3    decision of the Appeals Chamber became ineffective.

 4            The Chamber has considered to provide an opportunity to the

 5    accused, although the situation of course at this moment is a bit unclear,

 6    we have considered the possibility to allow the accused to again submit a

 7    response to the Prosecution motion for adjudicated facts, but then to stay

 8    within the 5.000 word limit.  In the absence of the accused, we'll not

 9    finally decide this matter.  But the Chamber seriously has considered it,

10    and the accused is informed about it by this.

11            The next issue is about the application for a certification to

12    appeal the Chamber's decision on the form of disclosure.

13            At the 4th of July Status Conference, Mr. Seselj expressed his

14    intention to apply for certification to appeal the Chamber's decision on

15    the form of disclosure of the same date.  No reasoned request was

16    received, so the Chamber issued no decision.

17            In a submission dated the 31st of July 2006, the accused purported

18    to appeal the Chamber's decision on the form of disclosure directly to the

19    Appeals Chamber.  The submission was returned to the accused because no

20    certificate had been granted.

21            In view of the importance of the decision on the form of

22    disclosure, the Chamber has reconsidered the request by the accused.  The

23    Chamber notes that no reasons have been given by the accused for granting

24    his request for certification.  But the Chamber anyway decides to grant

25    such a certification as the decision concerns the adequate time and

Page 806

 1    facilities for the preparation of the Defence and an immediate resolution

 2    by the Appeals Chamber would prevent that the Trial Chamber proceeds on a

 3    wrong procedural basis.

 4            The Chamber has considered that the rule allows to grant a

 5    certificate and does not prevent from granting a certificate even if an

 6    accused has not given proper reasons for a certificate.

 7            The next item on the agenda would be the status of responses to

 8    motions and new time limits for the accused.  Since at this moment the

 9    accused is not self-represented, I will not deal with most of the pending

10    issues in this respect, but I'd like to pay attention to two motions that

11    have to be declared moot.

12            There are two motions which were filed in early October during the

13    period where the accused was represented by assigned counsel which remain

14    pending.  First, assigned counsel filed a motion on the 10th of October

15    2006 requesting a medical report on Dr. Seselj.  The Prosecution responded

16    on the 13th of October 2006.

17            Secondly, a motion was filed by the Prosecution on the 6th of

18    October 2006, concerning possible threats and intimidation of witnesses

19    and an order for non-disclosure.  The motion requests the Chamber to order

20    assigned counsel not to disclose to the accused the order of forthcoming

21    witnesses, and assigned counsel responded on the 9th of October.  The

22    Prosecution replied on the 12th of October.

23            In light of the Appeals Chamber decision of the 20th of October

24    2006, reversing the Trial Chamber's decision on assignment of counsel, and

25    keeping in mind that the activation of stand-by counsel at this moment

Page 807

 1    lasts for this Status Conference only for the time being, these two

 2    motions can provisionally be declared moot, depending on what will happen

 3    in the near future, as assigned counsel is no longer representing the

 4    accused and the accused, although suspended temporarily, is representing

 5    himself.

 6            The Chamber will further consider this matter, whether it needs

 7    any further follow-up.

 8            I am now moving to --

 9                          [Trial Chamber confers]

10            JUDGE ORIE:  We will move to our next subject, which is the

11    disclosure of the witness order.

12            The Trial Chamber requests the Prosecution to file a list of the

13    names or codes of the witnesses, included on the list of the 9th of May

14    2006, that they no longer intend to call due to the reduction of the

15    indictment or for any other reason.

16            The Trial Chamber, the accused and stand-by counsel have been

17    informed about the names and the order of the nine witnesses who will

18    testify in December through a letter of the Prosecution to the registrar

19    dated the 17th of November 2006.  The Trial Chamber is hereby requesting

20    the Prosecution to provide the Trial Chamber, the accused, and stand-by

21    counsel with such regular updates.  These updates should be dated and

22    contain the following information:  1, the name of the witness; 2, the

23    pseudonym of the witness; 3, any protective measures granted; 4, the

24    expected date of testimony; 5, the expected time needed for the

25    examination-in-chief.  The update should be provided no later than two

Page 808

 1    weeks before the commencement of the testimony.  If the Prosecution

 2    intends to change the witness order within this two week period, it should

 3    ask for the Trial Chamber's permission to do so.

 4            I move to the next item, and I'm wondering whether we have to go

 5    into private session.  Perhaps out of an abundance of caution, we would go

 6    into private session, and if it would not be needed, we'll later decide

 7    that this part of the record will become public again.  Mr. Registrar.

 8        [Private session] [Confidentiality lifted by order of Trial Chamber] 

 9            THE REGISTRAR:  We are now in private session, Your Honour.

10            JUDGE ORIE:  Thank you.

11            The item is about the Prosecution's notice regarding protective

12    measures for Witness VS-017 with an ex parte annex.

13            On the 16th of December 2004, the Trial Chamber granted the use of

14    a pseudonym for Witness 17 as well as the late disclosure of the witness

15    information until 30 days before the start of the trial.  On the 8th of

16    November of this year, the Trial Chamber also granted the use of face and

17    voice distortion for the witness.  On the 14th of November 2006, however,

18    the Prosecution filed a notice regarding these protective measures,

19    informing the Trial Chamber that Witness 17 has since indicated that he

20    wants to testify in public without any protective measures, but he

21    requested that all protective measures ordered by the Trial Chamber remain

22    in effect until the commencement of his testimony.

23            The Chamber would like to receive a response to this request from

24    the Defence.  Mr. Hooper?

25            MR. HOOPER:  Well, it seems that these are matters to be decided

Page 809

 1    when the witness is here and before the Court.

 2            JUDGE ORIE:  Well, there are two items.  The first is that the

 3    witness has indicated that he doesn't need any protective measures

 4    anymore.  At the same time, the Prosecution asks the protective measures

 5    to remain in place until the beginning of the testimony.  One could think

 6    that if there is no -- it's at least --

 7            MR. HOOPER:  I'm sorry, I misunderstood.  I thought they were both

 8    coming from the witness, that they were contradictory, but coming from the

 9    same witness.  I hadn't appreciated it was the Prosecution who was asking

10    that matters stay in place.

11            JUDGE ORIE:  I think, as a matter of fact, that's what the witness

12    invited the Prosecution to ask the Chamber to do.  That is to now already

13    decide that the testimony would be given in public, so therefore, that the

14    reasons for protective measures do not exist any longer, but only on from

15    the moment that he appears to testify, which is at least a new situation

16    asking for different -- for different reasons, protective measures only to

17    be in place temporarily and not during the testimony.  And the Chamber

18    just wanted to know what position the Defence takes in this respect.  And

19    if you would like to take more time to think about it and then inform the

20    Chamber, then no decision has yet been taken.  All protective measures are

21    still in place.

22            MR. HOOPER:  Yes.  The status quo can remain.  I have no objection

23    to that, bearing in mind what the witness has said he'll do once he's

24    here.

25            JUDGE ORIE:  Yes.

Page 810

 1            MR. HOOPER:  I won't stand in the way of that at all.

 2            JUDGE ORIE:  So you do not oppose the --

 3            MR. HOOPER:  No.

 4            JUDGE ORIE:  -- request by the Prosecution that protective

 5    measures should be lifted but only on from the moment that the testimony

 6    of the witness begins?

 7            MR. HOOPER:  Yes.

 8            JUDGE ORIE:  Then the Trial Chamber hereby orders that the

 9    protective measures ordered on the 16th of December 2004, and the 8th of

10    November 2006, shall remain in place until the moment Witness 17 will

11    commence his testimony, at which moment, they will be lifted.

12                          [Trial Chamber confers]

13            JUDGE ORIE:  We will need a break anyhow.  We are still in private

14    session.  We can return to open session.

15                          [Open session]

16            THE REGISTRAR:  We are back in open session, Your Honours.

17            JUDGE ORIE:  We will need a break anyhow.  Therefore, we will

18    adjourn until ten minutes to 1.00.

19                           --- Recess taken at 12.24 p.m.

20                           --- On resuming at 1.04 p.m.

21            JUDGE ORIE:  Unfortunately, the Chamber could not be ready earlier

22    than 15 minutes after the time announced to resume.

23            I'd now like to move to the next subject, that's the issue of

24    special defences.

25            The Chamber renders hereby its decision on the question whether

Page 811

 1    the accused has notified the Prosecution of an alibi defence or any

 2    special defence, in accordance with Rule 67(A)(i) of the Rules of

 3    Procedure and Evidence.  Rule 67 of the Rules creates an obligation for

 4    the Defence to notify the Prosecution of an intention to offer a defence

 5    of alibi or any special defence and to disclose additional information

 6    relating to such defences.  In turn, the Prosecution is under the

 7    obligation, if it intends to rebut the alibi defence or the special

 8    defence invoked, to notify the Defence of its rebuttal evidence.

 9            According to the Prosecution, since September 2003, the accused

10    has served on it 15 submissions containing over 5.500 pages and which,

11    according to the accused, constitute notifications of a special defence

12    under the aforementioned Rule.  At the Status Conferences held on the 3rd

13    and the 8th of November 2006, the parties submitted their views in

14    relation to those submissions.  On the 7th of November 2006, the

15    Prosecution filed an additional submission further clarifying its position

16    on this matter.

17            The accused informed us that the material he submitted contains

18    references to various documents and books that will be used mostly in the

19    cross-examination of the Prosecution expert witnesses.  The accused's

20    submissions do not contain any references to witnesses that could testify

21    in support of the material.

22            The accused submits further that his special defence includes the

23    following topics:  1, historical context and circumstances; 2, analysis of

24    alleged hate speeches in the western press and by western Muslim and Croat

25    politicians; 3, joint criminal enterprise and; 4, the accused's public

Page 812

 1    speeches about the war and the obligations to abide by the laws of war.

 2            According to the accused, his defence is special as it is a

 3    defence which has never been presented at the Tribunal before.

 4            The Prosecution does not consider the accused's submissions to be

 5    a special defence within the meaning of Rule 67 of the Rules.  According

 6    to the Prosecution, they consist of hundreds of pages of quotations from

 7    the accused's books, copies of prior speeches, et cetera.  Also, according

 8    to the Prosecution, the material contains repeated allegations against the

 9    Pope and the Roman Catholic church.  The Prosecution argues further that

10    the accused's submissions, and I quote, "address issues raised in the

11    indictment and in the Prosecution's pre-trial brief," and are more

12    analogous to a defence pre-trial brief than any kind of notice pertaining

13    to a special defence.

14            At the Status Conferences on the 3rd and the 8th of November 2006

15    the Chamber gave the accused ample opportunities to identify and clarify

16    what, according to him, is his special defence.  The accused appears to be

17    confusing the concept of a special defence with that of a unique defence.

18    A defence cannot be considered to be a special defence within the meaning

19    of Rule 67 of the Rules merely because it is a defence that is being

20    argued for the first time before the Tribunal.

21            The Chamber has reviewed the translated submissions of the

22    accused.  Submissions 103 and 104 challenge the credibility of potential

23    Prosecution witnesses.  Submissions 147 deals with the, and I quote, "Role

24    of the Vatican and Pope John-Paul II in the crimes committed in the

25    territory of the former Yugoslavia in 1991."  None of the four topics

Page 813

 1    mentioned earlier, which represent the accused's oral submissions,

 2    constitute special defences.  Rather, as the Prosecution has submitted,

 3    they are more analogous to submissions made in a defence pre-trial brief.

 4            Therefore, no prior notice to the Prosecution was necessary.  The

 5    Chamber concludes that the accused has failed to identify any special

 6    defence.  And this concludes the Chamber's decision on this matter.

 7            Next item I'd like to deal with is the translation of

 8    jurisprudence.  During the last Status Conference on the 8th of November

 9    2006, the accused asked for the Trial Chamber judgement in the Limaj case.

10    The Trial Chamber reminds the accused that the matter of him being

11    provided with translations of the case law of the Tribunal has been

12    decided on in decisions on the 9th of November 2005 and the 12th of July

13    2006.  The matter has also been addressed by the Registrar.

14            These were the items I had on my mind to deal with, but I'd like

15    to invite the parties to raise any other issue.

16            Yes, there is one issue that I'd forgotten to raise.  When I

17    earlier instructed the Prosecution to give updates on the witness lists,

18    which witness to come to testify when, I'd like to add that the

19    Prosecution is also required to indicate what documents it intends to

20    present through that witness, in those witness updates, so that the

21    Chamber is always fully aware of what to expect.

22            Is that clear?  It's in addition to what I said before.

23            MR. SAXON:  That's clear, Your Honour.

24            JUDGE ORIE:  Yes.  Thank you.  Then, for the parties, Mr. Saxon or

25    Madam Uertz-Retzlaff, is there anything you would like to raise at this

Page 814

 1    moment?

 2            MR. SAXON:  No, Your Honour.

 3            JUDGE ORIE:  Thank you.  Mr. Hooper?

 4            MR. HOOPER:  Yes, there is one matter, Your Honour, and that

 5    relates to the special defences that you've referred to already just a

 6    moment ago.  And also to the overlong motions or responses to motions by

 7    the accused that were received by the Registry but were returned to him.

 8            In respect of the first matters, a number of those, I understand,

 9    have been translated.  I don't have the precise details to mind at the

10    moment, but I know -- I believe on our last Status Conference, there was

11    reference made to that, but there were some that were not.  And I'd ask

12    that those matters be provided in a translated form, i.e., in English, to

13    stand-by counsel.

14            In respect of the overlong motions or responses, those were

15    returned, as I understand it, to the accused, and if that word is used

16    appropriately, then the Registry will not be in possession of them, but --

17            JUDGE ORIE:  I think that the procedure is that if submissions are

18    not filed and returned to a party, that a copy is kept for administrative

19    purposes by the Registry, because if there would ever be any dispute about

20    whether it was correct or not correct to send something back, that at

21    least, the Registrar should know what we are talking about.  So unless Mr.

22    Registrar or the representative of the Registry would contradict me now,

23    that's what I understand procedure to be.

24            THE REGISTRAR:  Your Honour is absolutely correct.  We do --

25            THE INTERPRETER:  Please remove the headphones away.

Page 815

 1            THE REGISTRAR:  Documents have been returned to Mr. Seselj and we

 2    will have it provided to stand-by counsel at the end of the hearing today.

 3            JUDGE ORIE:  Perhaps, I interfere for one more moment.  If a

 4    lengthy submission is sent back, then it doesn't mean that it has been

 5    translated into English.  Yes.  Please proceed, Mr. Hooper.

 6            MR. HOOPER:  No, but somewhere we hope, that in the archives,

 7    there will be a photocopy or copy of the original document, presumably in

 8    Serbian, and we would ask that that be made available to stand-by counsel

 9    and translated for stand-by counsel into English.

10            JUDGE ORIE:  Yes.  Of course, one of the reasons why there are

11    limits on -- I'm not saying all the reasons, but one of the reasons

12    certainly is that it would exhaust the resources of this Tribunal if 5.000

13    pages or 7.000 pages first have to be translated and only then for us to

14    find out that they may be irrelevant or that would -- that would drain the

15    resources of the Tribunal.  So, therefore, of course, I understand that

16    you'd like to know what's in these submissions, whether that should be

17    achieved by having them in full translated is not self-explanatory.

18            MR. HOOPER:  Well the reason is, of course, as stand-by counsel,

19    that may have a limited effect, but looking at the trial as a whole, and

20    the possible avenues that it may take, then overall, we would submit, that

21    it's in the interests of the accused that those matters be translated and

22    provided to stand-by counsel.

23            JUDGE ORIE:  Yes.  Another option would be that the accused

24    informs, in summary form, stand-by counsel, if he considers that it would

25    be of any use for his defence that stand-by counsel is aware of the

Page 816

 1    content of these materials.  But it's -- this Chamber is not the master

 2    over the CLSS, which is responsible for preparing translations, and there

 3    are policies in which I would like not to dive in at this moment, but it's

 4    on the record that you take the position that it would serve the way you

 5    perform your task in being provided with a translation of those

 6    submissions.

 7            MR. HOOPER:  Yes.  And I appreciate there are difficulties here,

 8    particularly with the translation service and the demands made upon it.

 9    And perhaps, therefore, I can restrict my application this morning to

10    service of those documents, those categories of documents, special

11    defences and the rejected documents relating to the accused, that they be

12    provided to stand-by counsel.  We do have someone who can read sufficient

13    or can read Serbian and will be in a position, on reflection at least, to

14    identify perhaps further and better those matters that perhaps in due

15    course become particularly pertinent and relevant and necessary to

16    translate.  So I withdraw the application to have the matters translated

17    at this stage and merely seek to preserve the serving of the documents as

18    a matter of course on stand-by counsel.

19            JUDGE ORIE:  From what I understand, some of the submissions were

20    filed and therefore these are translated, and the Chamber could read them,

21    but some of these are just sent to the Prosecution, have not been filed,

22    so I take it that the registrar will consider to provide you the copies of

23    the originals that were sent back.  Of course, the ones that have been

24    filed and are referred to by the accused as containing special defences,

25    of course, are already available, to the extent that they are only sent to

Page 817

 1    the Prosecution, I think it would be Mr. Saxon or Madam Uertz-Retzlaff who

 2    would have the response.

 3            MR. SAXON:  Your Honour, in regard to 15 submissions that were

 4    provided to the Prosecution, if it would facilitate matters, we can

 5    provide these to stand-by counsel on a CD-ROM or a DVD.  So that might

 6    make their life easier.

 7            JUDGE ORIE:  Yes.  So they will be provided but in electronic

 8    format.

 9            Any other issue, Mr. Hooper, you would like to raise?

10            MR. HOOPER:  No, thank you.

11            JUDGE ORIE:  Then, there being nothing else on the agenda, the

12    Chamber would like to inform Prosecution and Defence that the accused will

13    be invited to make submissions in writing or orally under paragraph 5(i)

14    of the Chamber's order of the 25th of October 2006.  An invitation, a

15    written invitation to this effect will be issued later today, and it

16    contains an invitation to make submissions by next Friday in writing

17    and/or to add anything orally -- when I said next Friday, I meant this

18    Friday -- so to make submissions by this Friday in writing or, if the

19    accused would prefer to add oral submissions, to do that at the Pre-Trial

20    Conference or, if he doesn't make any written submissions to make oral

21    submissions Monday at the Pre-Trial Conference.

22            We stand adjourned until next Monday at the Pre-Trial Conference.

23                           --- Whereupon the Status Conference

24                          adjourned at 1.23 p.m.