Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1355

1 Friday, 17 August 2007

2 [Open session]

3 [Status conference]

4 --- Upon commencing at 4.29 p.m.

5 JUDGE ANTONETTI: [Interpretation] We are Friday and I would like

6 to greet all the people in the courtroom. I should like to greet the

7 Prosecution. Ms. Dahl in particular, Mr. Seselj, as well as all the

8 people who are assisting us today for this Status Conference.

9 First of all, this Status Conference will be held until 7.00 p.m.,

10 but if we are not able to address all the items on the agenda, I have

11 every intention of pursuing the matter on Monday afternoon. I don't know

12 whether Mr. Seselj is -- has any visits on Monday afternoon. I don't know

13 whether Mr. Seselj is available on Monday afternoon.

14 THE ACCUSED: [Interpretation] I am on Monday.

15 JUDGE ANTONETTI: [Interpretation] Very well. So we might not need

16 this time on Monday, but you never know.

17 On the agenda for today I would like to address three main points

18 respectively, A, the contempt procedure; B, the decision I handed down on

19 the funding of the defence of the accused; C, the date of the trial. But

20 before I look into these matters as Mr. Seselj is representing himself, I

21 would like to tell him that the Plenary Assembly of the Tribunal has

22 amended the Rules of Procedure and Evidence last July pertaining to Rules

23 62, 72, has deleted Rule 71 bis, has amended Rule 80 bis and Rule 75. I

24 will give those documents to Mr. Seselj both in English and in French

25 because the Rules of Procedure and Evidence are supplied in both

Page 1356

1 languages, and there is no immediate version in B/C/S.

2 Rule 62 does not concern you directly, Mr. Seselj, because this

3 pertains to the initial appearance of an accused and relates to the issue

4 of Defence counsel.

5 Rule 72 relates to preliminary motions, but Rule 72 has not been

6 amended in detail, with the exception that when the accused has no Defence

7 counsel, the 30-day time limit only starts running once a Defence counsel

8 has appointed -- or once he has indicated to the Registry pursuant to

9 Rule 45 bis that he will represent himself.

10 Rule 80 bis pertains to video-conferencing. This Rule entitles

11 the Chamber ex officio to hold its hearing via video-conference.

12 The next Rule has to do with witness protection when another

13 jurisdiction is seized of the case. A particular procedure is then

14 applied.

15 Normally speaking, Mr. Seselj, you should have the translation of

16 the Rules into B/C/S, but I don't believe that you have received the

17 translation of these articles today. If you have received them, please

18 let me know if you have received them please let me know if you haven't.

19 In that case, I will give you a copy of the amended Rules in English.

20 THE ACCUSED: [Interpretation] I am not sure I remember what Rules

21 exactly, but a week ago I did get the amendments to the Rules, so I assume

22 that these are the ones that you've been referring to.

23 JUDGE ANTONETTI: [Interpretation] I just wanted to check this with

24 you.

25 As far as the contempt procedure is concerned, the complaint you

Page 1357

1 filed against the OTP, as you know the Trial Chamber has -- the Pre-Trial

2 Chamber handed down a decision last July dismissing your application on

3 re-examination of the initial decision issued by the Chamber. In brief

4 what the Pre-Trial Chamber has decided runs as follows: The complaint you

5 filed against Ms. Carla Del Ponte and her associates has not been

6 dismissed because had it been dismissed we would have handed down a

7 decision to that effect. I have decided as well as the two other Judges

8 sitting on this Bench that the trial will rule -- the Trial Chamber will

9 rule on the merits of your complaint once the Chamber has heard the

10 various witnesses in question. The witnesses you mentioned in your

11 complaint in which you stated that these witnesses had been pressured into

12 providing a testimony.

13 The advantage of such a procedure runs as follows: When these

14 witnesses come to testify, whether they be Prosecution witnesses or your

15 own witnesses, you will be able once they have taken the oath, to put

16 questions to them directly on the way in which their statement was taken,

17 because as you know, during cross-examination you are entitled to put

18 questions relating to the credibility of a witness, and in that case, as

19 these witnesses will have taken the oath, they will answer your questions.

20 In addition, if there are any witnesses who are not called by the

21 Prosecution, witnesses which figure on your list of witnesses, because you

22 have provided us with such a witness list in that case as part of your

23 Defence case you will call these witnesses to testify, and during the

24 examination-in-chief you will then ask them under oath what actually

25 happened when their statement -- statements were taken. And it is on the

Page 1358

1 basis of the outcome of this that the Chamber will draw its conclusions.

2 The other solution would have been to dismiss your complaint

3 outright. This has not been adopted by the Trial Chamber. According to

4 Rule 77, the Chamber could have appointed an amicus curiae who would have

5 conducted an investigation, but in that case the witnesses could not have

6 been heard under oath in the courtroom. The procedure that the Chamber

7 has adopted protects your rights entirely and will entitle you, as you are

8 representing yourself, to put questions to the witness. These witnesses

9 will thus have to answer your questions, because if they do not they can

10 be charged with contempt of court. And in addition, they will testify

11 under oath, which is a different thing and is something different from

12 testifying before a solicitor, a lawyer, or any other person. This is of

13 greater value. This is why we feel that in this manner your rights are

14 entirely protected. And if the truth should surface, the truth will

15 surface in the presence of all the Judges who will have heard these

16 witnesses.

17 This is what I had to say on this particular matter, because the

18 Chamber has not granted your application to review the initial decision

19 that was taken.

20 Do you wish to say anything about this, Mr. Seselj?

21 THE ACCUSED: [Interpretation] Judge, I have already submitted a

22 request to -- for certification to appeal that ruling of Chamber III. The

23 question of principle is who are these contempt proceedings against,

24 against me or members of the OTP? The Chief Prosecutor and her associate

25 who acted in this case. As far as I know, not a single one of the 34

Page 1359

1 witnesses who gave depositions to me or, rather, to my associates are not

2 Prosecution witnesses who are supposed to appear in the proceedings

3 against me. Not a single one of these 34 witnesses.

4 Secondly, when I call my own Defence witnesses and expert

5 witnesses, I intend to challenge the positions of the Prosecution, and

6 that is why I need to have equal time and an appropriate number of

7 witnesses.

8 As for my time, the time for the Defence case, I cannot use that

9 to bring in witnesses who would accuse the Prosecution here and who would

10 be quite indifferent as far as my defence is concerned. They would have

11 to make statements as to what they were subjected to in terms of the

12 unlawful behaviour of representatives of the OTP, and I have no questions

13 to put to them within my own Defence case.

14 Out of those 34, perhaps I plan to call one or two of them as

15 Defence witnesses, but most of them I do not intend to call, and I do not

16 have the scope for that kind of thing.

17 Secondly, if this trial indeed begins in November, then roughly

18 the Prosecution will be calling their witnesses by May or June. Among

19 them there probably won't be any of the 34 persons in question because

20 they refused to testify for the Prosecution. That's what they told me,

21 all 34 of them. Then there is the three-month break like in all other

22 trials, and that brings us to the month of September. If the trial really

23 begins now in November or perhaps in August next year, then the Defence

24 case would start. That is too long a period of time. Carla Del Ponte is

25 leaving in September. If by some misfortune they extend her mandate until

Page 1360

1 December, then she leaves in December. Hildegard Uertz-Retzlaff has

2 already run away from The Hague Tribunal.

3 Now what happens to this third person that I brought charges

4 against, I forget name right now, ah yes, Daniel Saxon, I don't know, but

5 I see he's been removed from this case. So what is the point of contempt

6 proceedings then? Contempt proceedings in principle are supposed to have

7 priority over all other proceedings because that is the most serious thing

8 that can happen in the functioning of this court which directly

9 jeopardises the authority of this court and without that this court cannot

10 bring justice, administer justice, even if this court had been founded

11 legally, that is the way things would stand.

12 In principle, until the factual basis is examined in these

13 proceedings there is no point in doing anything else. These are

14 proceedings that are supposed to be quite independent of the proceedings

15 against me. So in two parallel courtrooms for that matter, if an amicus

16 curiae is engaged or a special prosecutor or if the Trial Chamber act on

17 this themselves. Last time and the other time before that you refer to

18 all the options that you had available. So this doesn't hinder these

19 proceedings in any way. There is a new OTP team here. As far as I know,

20 I haven't brought charges yet against any one of the members of this team

21 so that will not hinder their work in these proceedings in any way. As

22 for those for whom I have proof that they committed the crime of contempt

23 of Court they should be held accountable, or my complaint should be

24 dismissed outright as untrue. It is my understanding that you did not

25 dismiss it outright. You looked at the options that were the best for

Page 1361

1 looking into it further.

2 I don't think that this is a good option. I think that this

3 should be treated urgently so that justice would prevail against those who

4 committed contempt of court. Once Carla Del Ponte leaves it will be

5 impossible for you to try her for contempt. Off she will go to

6 Switzerland. As far as I know the UN is -- Switzerland is not a member of

7 the UN - correct me if I'm wrong - and after that I hear she will be going

8 to Argentina as ambassador. So she will be quite inaccessible and her

9 closest associates probably will be too. So nothing doing.

10 That is why I have dealt with it this way, certification to appeal

11 and then I will file an appeal with the Appeals Chamber if you allow me to

12 do so. If you do not allow me to do that, then do not count on me using

13 my defence time to prove that OTP members committed the crime of contempt

14 of Court. I have to use my time to refute the indictment. I'm not here

15 to prosecute world justice. I'm not going to use my time in order to

16 bring Carla Del Ponte behind bars. Hildegard Uertz-Retzlaff and

17 Daniel Saxon too. I came here to vanquish The Hague Tribunal, but how?

18 By tearing apart the indictment brought against me. All the rest is of

19 secondary importance. Even this thing, the complaint I filed, is of

20 second rate importance from the point of view of my case that is, but is

21 very important for this international court and for international justice

22 in general.

23 JUDGE ANTONETTI: [Interpretation] You are telling us that you are

24 going to apply for certification to appeal. The Chamber will rule on the

25 certification of appeal which you will file. I cannot commit you anything

Page 1362

1 here because this decision has to be taken by all the members of the

2 Bench.

3 One point of clarification I would like. The contempt of Court

4 has not been filed against you. Maybe this is a translation problem. You

5 wondered whether this these contempt proceedings concern you. No, you're

6 the plaintiff against members of the OTP. You are not accused in this

7 particular case or charged of contempt proceedings. Rest assured these

8 proceedings do not concern you as an accused.

9 Secondly, you stated that there are 34 witnesses, statements of

10 which you have sent in. If these 34 witnesses come to testify here, you

11 will be losing time. This is not a minor issue, because the witnesses

12 could come to testify on the merits of the case. In purely technical

13 terms, when the questions are put this is a very quick process. How was

14 your statement taken? What were you told? Were promises made? And so on

15 and so forth. This can be over in 15 minutes. Somebody can ask the

16 essential questions which you will put to him or her. So I think there

17 are no concerns about the time factor. I think you are concerned,

18 however, about allocation of time.

19 When the Prosecution, for instance, has 100 hours, the Defence

20 then has 100 hours. You will have exactly the same time as the

21 Prosecution.

22 And secondly, if the Prosecution calls a hundred witnesses to

23 testify, you are entitled to call a hundred witnesses to testify. This is

24 what equality of arms is all about. So your concerns may seem subjective,

25 but in practical terms rest assured, because you will not be prejudiced.

Page 1363

1 You are applying for a certification of appeal. I don't know what

2 my colleagues will think about this. We will hand down a decision on this

3 particular application.

4 Last point, which is an important point. You were saying that if

5 the proceedings do not start now, Ms. Carla Del Ponte and the other people

6 will vanish into thin air. That is not the case, because the Chamber can

7 call a witness, including Ms. Carla Del Ponte, and if the witness does not

8 come to testify the Chamber can issue an arrest warrant. So immunity does

9 not apply here. If one day we feel it is important to hear those people

10 whose names you have mentioned, they will be called whatever their future

11 positions might be. There is no immunity here whatsoever.

12 I shall now move on to the second item, which is an essential

13 issue which pertains to the decision I handed down relating to the funding

14 of your defence.

15 During the summer recess, hour after hour, I kept abreast of the

16 translation issues of a document of 20 pages. At the beginning of the

17 afternoon I have been told that you have not received the translation of

18 the decision I handed down in your language. Is that right?

19 THE ACCUSED: [Interpretation] I have received the decision. I

20 received it yesterday.

21 JUDGE ANTONETTI: [Interpretation] Well, all the better then. So

22 you have now got the decision in your own language. I shall briefly

23 comment this will decision, because I realised that following this

24 decision a number of comments were made in the Belgrade press and a number

25 of legal "experts" who have commented this decision. These comments did

Page 1364

1 not include or consider a number of fundamental rights of the accused.

2 First of all, I would like to remind you that in this decision the

3 right to represent yourself is a right that is enshrined in the Statute, a

4 right which has been confirmed by the Appeals Chamber on two occasions.

5 As far as the fact that you are representing yourself is

6 concerned, these proceedings before this Tribunal is common law

7 proceedings. In other words, the investigation which is conducted by the

8 OTP is conducted by the OTP and the OTP only and is not monitored in any

9 way by a Judge, whereas in the civil law system the Judges may monitor the

10 investigation process. An investigation Judge can, for instance, be

11 working together with a prosecutor or a magistrate. The Defence team then

12 waits patiently for the outcome of the investigation before starting to

13 prepare its case.

14 In this case the Prosecution is solely responsible for the

15 investigation, collects and gathers all evidence. The Defence then on the

16 basis of the equality of arms can then call its own witnesses and own

17 experts, to go and fetch the witnesses, and all this costs money.

18 So given the procedure adopted here, the accused quite clearly has

19 to incur a number of costs. All these costs have to be borne by the

20 Tribunal. In addition, the statute has granted the accused a number of

21 rights, and in the Statute - I think a lot of people have omitted to

22 consider this - is the word "at least." So given the number of rights

23 listed in the Statute, these rights may be supplemented if necessary.

24 I feel that you have the right to defend yourself, and in order to

25 do so you need to be provided with a team of people who will enable you to

Page 1365

1 prepare your trial. The people assisting you need to be paid. This is

2 the only way of guaranteeing a fair trial, because in a fair trial you are

3 entitled to examine and have the Prosecution witnesses examined and call

4 your own witnesses. For this right to be applied, you need to have enough

5 resources available. This is what happens when an accused represents

6 himself and when he needs to incur a number of costs. Some people feel

7 that you should perhaps not those resources which would make it possible

8 for you to adequately prepare your defence.

9 The next point has to do with adducing evidence, and when you are

10 preparing your evidence, and this is in the interest of the Bench, also

11 your defence needs to be prepared in a consistent, efficient, and concise

12 manner, and having to manage hundreds of documents, thousands of pages,

13 statements and various documents calls for a team of people to help you to

14 do this. It is not possible to deal with an avalanche of material on your

15 own. This is why you need people to help you to do this.

16 This decision has borne in mind the measures that need to be taken

17 in this respect. These relate to two essential factors. Insofar as the

18 costs are borne by the Tribunal, you should in that case be able to prove

19 that you are not unable to cover those costs yourself. These costs could

20 amount to tens of thousands of euros. I have reminded you of this in the

21 decision. You should, and this is something you told us at the hearing

22 and I have mentioned it in the decision, you should indicate to the

23 Registry what your position is, and this is something you have mentioned

24 on several occasions by providing documents in support of what you're

25 saying. For instance, a tax return, the status of your wealth is

Page 1366

1 certified by a solicitor or notary. This is something you have to

2 establish with the Registry.

3 I have no doubt about the matter. You should explain how you

4 stand, what your position financially is. As you have described it,

5 you -- your position would justify an application, and you should -- some

6 of your costs should be borne by the Tribunal, but you need to prove this.

7 A number of letters -- there has been a number of exchange of letters, but

8 this is something that you have to see with the Registry.

9 The second measure to be adopted here as I mentioned in the

10 decision, I have said that among the associates you are working with, you

11 do have a number of associates. One of them or several of them need to

12 meet the requirements of Rule 45 of the Rules of Procedure and Evidence

13 pertaining to the required qualifications when Defence counsel are

14 assigned. In other words, a knowledge of humanitarian law, international

15 law, criminal law, a certain amount of experience, and so on and so forth.

16 Given the track record of your associates, I believe you will have

17 no difficulty in stating that at least one of your associates is able to

18 meet the requirements of the Rules.

19 With regard to the amounts concerned, it is not for me to tell

20 whether it should be 10, 20, or 40.000 euros. This is something for the

21 Registry to decide. But empirically and in order to reassure those who

22 may entertain some fears, the costs incurred by your defence will be quite

23 obviously less than the cost that would have arisen if you'd had a lawyer,

24 a co-counsel, possibly an amicus curiae, with the entire teams, support

25 teams. So if you then sum it all up, it would have been bound to be much

Page 1367

1 more expensive than the cost that you will have to bear or that you will

2 cause. But this is a matter for the Registry to see with you, to see how

3 all this is going to be considered.

4 Moreover, I said in the decision that it was for the Registry,

5 under the Practice Direction and the payment scheme to pay the amounts

6 granted as legal aid and to make sure that the money is used properly. So

7 this is again a matter that should be dealt with by the Registry.

8 In this decision which you received yesterday, I said that all

9 this had to be done immediately. Immediately. I believe that the

10 Registry was waiting for you to obtain the decision in your language in

11 order to arrange a meeting with you as early as possible and to see how to

12 implement all these provisions. Indeed, as I explained to you, your trial

13 could not start yet because there were some problems, and in my view there

14 was also another obstacle arising from two fundamental questions, the

15 first questions being the disclosure of material in your own language,

16 Prosecution material, and also exculpatory material. This is being sorted

17 out. Indeed, during the summer recess the Prosecution sent me some

18 binders, and I believe that if I got them, you must have got them too.

19 Second obstacle, it had to do with the way your associates were

20 going to be paid.

21 So since this has been settled, we are now going to be able to

22 deal with the third item, which is the commencement of trial, the date.

23 I'm now going to give you the floor for comments on this issue

24 ever funding.

25 THE ACCUSED: [Interpretation] Judge, I never in any way made any

Page 1368

1 conditions on the beginning of the trial. I never conditioned it upon the

2 beginning of financing of my defence by the Tribunal. I made of course

3 these motions reckoning that I had the right to do so. But I never said

4 that if it did not work, if it wasn't met, I would not defend myself. My

5 only condition was disclosure in Serbian and on paper and the registration

6 of my legal assistants, and of course guarantees of my legal right to

7 represent myself without anyone's imposed interference. I never set out

8 this issue in any other way.

9 Of course I believe the decision you have issued will have great

10 importance for the further development of international law. It is the

11 first specific concrete decision of this kind in international law,

12 although the way to guarantee the defence of an accused already exists,

13 even in this Tribunal.

14 Unfortunately, your decision will not be applicable, because you

15 included a clause whereby one of my legal assistants has to meet the

16 requirements of Rule 45 which regulates the assignment of counsel, and it

17 says that, first of all, requirements set out in Rule 44 have to be met.

18 None of my assistants will ever meet those requirements. My legal

19 assistants do not have to meet the condition of being law professors at a

20 university or having a law practice in another state. I consulted others

21 on this issue. The Registry insisted that my legal assistants have to

22 meet all of the requirements set out for counsel, Defence counsel, and I

23 always claimed that legal assistants are not the same thing as counsel or,

24 rather, vice versa. And legal assistants do not have to meet the same

25 requirements. They just have to have a degree in law, and I have to trust

Page 1369

1 them.

2 In this clash with the Registry, I won in December last year, and

3 on that occasion the Registry registered three of my legal assistants. A

4 while ago, the Registrar wrote in one of the communications, and that set

5 out the position of the Registry on the issue of financing, that under my

6 pressure and because of my hunger strike they made the decision, otherwise

7 they probably wouldn't have made it. Something to that effect.

8 These legal assistants shall remain my legal assistants until the

9 end of this process. There will be no change in that. My legal

10 assistants do not have oral or written knowledge of either English or

11 French, and they will never learn those languages. My legal assistants

12 will never have proper membership in associations of lawyers capable to

13 appear before foreign courts. First of all because they are not counsel,

14 they're not lawyers, and they do not need to be members. And second, I

15 simply prohibit them from becoming members of such associations because

16 various criminal deals are taking place there, especially now that

17 Mr. Karnavas is providing over that association. Mr. Karnavas who was

18 involved in contraband and smuggling of oil and cigarettes in the former

19 Yugoslavia, and he appeared and represented Mr. Blagojevic in

20 Mr. Blagojevic's trial despite the express refusal of Mr. Blagojevic.

21 Therefore I prohibit my assistants from joining that association.

22 That association furthermore never dealt with any violations of

23 the rights of their clients. Their only concern is how much money they're

24 going to make before this court. And there are many lawyers who wrote

25 more motions seeking money from the Registry than any motions concerning

Page 1370

1 the defence of their counsel. My legal assistants will have nothing to do

2 with these people.

3 I have already proved that my legal assistants have no criminal

4 record, have never been convicted, et cetera, and now under para (vi) of

5 Rule 44 there is something where it says that in the conduct of their

6 profession -- in the pursuit of their profession or otherwise, they have

7 done nothing which is dishonest or otherwise discreditable to a counsel."

8 My legal assistants so far have done their utmost on my

9 instructions, my express instructions to disrupt the credibility of this

10 court, of this Tribunal, and they will continue to do so. They will use

11 all the documents they have and all the other evidence to diminish public

12 confidence in the International Tribunal.

13 And now let's move on to Rule 45, which in paragraph (i)

14 accumulatively sets out all the requirements previously set out in

15 Rule 44, adding some more, including under item (iv). They have indicated

16 their availability and willingness to be assigned by the Tribunal to any

17 person detained under the authority of the Tribunal lacking the means to

18 remunerate counsel. My legal assistants will never allow the court or the

19 Registry to assign them to any other person. They work exclusively for

20 me, and they will never be assigned to anyone else.

21 I appreciate your goodwill, Judge, and I believe your decision is

22 of huge importance for the international law. It will be quoted many

23 times before the ICC, before this Tribunal and other international courts.

24 Regrettably, however, it won't be applicable in this trial. Within a

25 certain time I will make a motion to --

Page 1371

1 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, before we move on to

2 certification of appeal, I would like to meet your concerns. I have

3 listened to you, and if you do not mind, we are going to look together at

4 Rule 44.

5 Unlike what you stated -- first of all, let us recall that you had

6 given three names to the Registry, and those names had been accepted by

7 the Registry. So I fail to see why once the Registry has accepted those

8 names, they would no longer do it now because they had been accepted

9 already. So first of all, take that into account. The three names you

10 had mentioned had been taken into consideration by the Registry. So

11 that's one major factor. And I fail to see why the Registry would change

12 their minds.

13 Secondly, as to the requirements of Rule 44, the said Article

14 basically applies to an individual who is a counsel, a fully qualified

15 lawyer. And as to the question of the language, unlike what you said,

16 paragraph (B) allows for a waiver. You can have a situation where you

17 have somebody who speaks neither French nor English and only speaks B/C/S,

18 in which case the Registry can accept such an individual. So there is an

19 exception there provided for under (B). Therefore, the issue of language

20 is not one that might actually negate the decision.

21 Also, as far as I know, your associates have never been punished

22 anywhere, so the (iv) does not apply. They have not been convicted in a

23 criminal trial. There is therefore no reason why they should not be able

24 to assist you. As far as I know, your associates have never behaved

25 improperly; therefore, 6 does not apply. They have not provided any false

Page 1372

1 or misleading information; therefore the 7th provision also not applies --

2 won't apply, and all of the provisions of Rule 44 are no obstacles to the

3 three people you had mentioned.

4 There could be some controversy as to paragraph E because it's

5 about somebody who again be a lawyer or be a professor of law or teach law

6 in a university. We just need to interpret this in broad terms. Thinking

7 that -- of the three names you'd mentioned to the Registry, there could be

8 one who became a lawyer in Belgrade tomorrow, and that would settle the

9 issue. So you're not worrying because you think that the Registry is

10 going to put obstacles in your way while it was not the case when you

11 mentioned those three's names. If there was ever an obstacle, you can

12 always speak to me about this and that obstacle will be lifted, will be

13 removed. So before you think of applying for certification of appeal,

14 take time to think it over, to see with the Registry how this decision is

15 going to be implemented.

16 I remind you that this is the first decision in the history of

17 international or national justice. So this is going to be remembered.

18 Indeed, it is here mentioned for the first time and held for the first

19 time that a self-represented accused has the right to have associates who

20 are not fully-fledged lawyers. So before you apply for certification of

21 appeal, do see the Registrar in order to settle these issues. I am

22 convinced, I repeat that I am convinced that the Registry is really

23 willing to do their utmost so that you may have your own associates to

24 help you.

25 Last time I told you, but we'll come back to this later, I had

Page 1373

1 told you that as far as I was concerned, the way I saw things, but of

2 course you are in no obligation to share my views, but as far as I could

3 see, it is in your own interest. I thought it was useful for you to do so

4 because I as a Judge have to make sure that I keep the right balance

5 between Prosecution and Defence so that you not be put in a situation

6 where you are disadvantaged, and this is where the role of the Judge is

7 most important. Why? And you'll see that very soon, because when you

8 have examination-in-chief by the Prosecution, they have documents,

9 sometimes hundreds of them, that are submitted to a witness. They can be

10 thousands of pages long, and you would be alone.

11 Regardless of your excellent qualities as a lawyer, you will not

12 be able to face all this. The OTP has been preparing for years. Of

13 course you have new faces here so the teams have been renewed, but the

14 basic groundwork has been done, and they will have no trouble in calling

15 their witnesses, in examining them, and in submitting documents. The

16 documents will be in English but also in B/C/S. So don't forget that the

17 examination will be conducted in English, because that's the language used

18 by the Prosecution. Of course everything will be translated, but you need

19 to have then with you associates who can understand French and English and

20 your language. That would be an additional asset for you. On the

21 contrary, if you only have associates who know B/C/S, of course it can be

22 done, but it might be a disadvantage for you, a handicap. That's why I

23 told you last time that among the people who are going to assist you and

24 who will be paid by the Tribunal it would be useful to have at least one

25 who knows English. But of course if you don't want that, you're free to

Page 1374

1 decide, but I thought it was in your interest to have somebody in your

2 team who could use English.

3 This is the reason for this provision in Rule 44, but there is a

4 waiver because that same Rule says that at the request of the accused if

5 it -- where the interests of justice so demand the Registrar may admit --

6 well, here in the text it says a counsel, but here we could have an

7 associate who doesn't speak either of the two working languages of the

8 Tribunal. So it can be done.

9 So before you go into applications for certification of appeal,

10 think it over, meet with the Registrar. All my contacts with the

11 administration of this Tribunal are such that I do believe that there is

12 no intention to harm you whatsoever. If I'd seen anything of the kind, I

13 would certainly have stopped it. So see with the Registry how they plan

14 to implement these provisions, and only if there's a problem, and anyway,

15 you can always talk to me about it by way of a motion in order to sort it

16 out.

17 So this is what I wanted to convey to you, on the one hand to

18 reassure you but also to emphasise that this decision is not fashioned for

19 you alone Mr. Seselj. It was crafted in favour of somebody who represent

20 themselves in the framework of a common law type of proceedings in which

21 the Prosecutor carries out their own independent investigation under no

22 supervision by a Judge and in which the Defence has to carry out its own

23 investigation, its counter-investigation, and has to call their own

24 witnesses and experts. All this costs money, costs that can be borne by

25 an accused if they have the means, but the costs being enormous, in some

Page 1375

1 cases they have to be borne by the Tribunal itself, and that was the very

2 meaning, the very purpose of my decision.

3 I do believe that in this matter you will face no problem at all.

4 You have the floor, Mr. Seselj.

5 THE ACCUSED: [Interpretation] Judge, as you said, you have

6 alleviated my concerns, and I am not going to ask for certification of an

7 appeal, but I want to avail myself of this occasion to tell you that I'm

8 going to appoint Zoran Krasic, one of my legal assistants, to be my chief

9 legal assistant. He is not lawyer by profession, but you know that he has

10 written 90 per cent of all my submissions and he is irreplaceable for my

11 Defence team. There is no way anyone else could occupy that place. I

12 cannot push him aside just because he is not a lawyer and give someone

13 else the first place.

14 I expect after that submission of the Registry that the Registrar

15 will cause problems on this issue. Maybe my concerns are premature and

16 unjustified. You have now persuaded me that they are premature and,

17 therefore, I will abandon my intention to ask for certification of an

18 appeal, but I'm not going to abandon the appointment of Zoran Krasic to be

19 my main legal assistant.

20 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, with regard to

21 Mr. Zoran Krasic, I mean, I don't have the privilege of knowing him, but I

22 have read with great care all the work he has put into the motions. It's

23 excellent work, and it would indeed be inconceivable that he would not

24 assist you. Why the Registry -- I fail to see why the Registry should be

25 opposed to this. If you tell the Registry that this Zoran Krasic is going

Page 1376

1 to be your main legal assistant, I don't think he's been prosecuted or

2 tried or anything, so on the basis of the work he's done already, he seems

3 to have all the necessary skills, quite extensive skills indeed. So in my

4 view there is no obstacle whatsoever to Mr. Zoran Krasic being your main

5 or lead legal assistants. If there is any problem at all, just put it in

6 a motion and I'll hand down a decision.

7 You are absolutely right. He is a major person for you, and from

8 what I've been able to read that he's written, yes, he's important for

9 you. And if you did not have him, it might be a problem, a handicap, in

10 which case the principle of equality of arms could be jeopardised.

11 So this was in relation to this matter of financing. I wanted to

12 take stock with you, because you see the good thing about a Status

13 Conference is that it makes it possible to have an exchange of views and

14 sometimes to put problems out of the way.

15 I did not give you the floor, Ms. Dahl, because this issue of

16 financing was not within the scope of the Prosecution as such. It is

17 indeed a purely financial issue under the jurisdiction of the Registry.

18 We'll be working until 7.00 p.m., therefore, I suggest that we

19 have a short break. It's now 5.30. Let's have a 20-minute break, and we

20 shall resume then to continue until 7.00 in order to deal with the other

21 items.

22 --- Recess taken at 5.28 p.m.

23 --- On resuming at 5.51 p.m.

24 JUDGE ANTONETTI: [Interpretation] The Status Conference is

25 resuming. I would like to address with the Prosecution and Mr. Seselj the

Page 1377

1 date of commencement of trial. I should like to refer to the previous

2 Status Conference.

3 At the previous Status Conference, Mr. Seselj, you told me at the

4 time -- or you submitted a number of arguments stating that the trial

5 could not commence before the month of March. You also made a legal

6 argument which I should like to recall. You stipulated that the Security

7 Council in its Resolution had indicated that the work of this Tribunal and

8 the trials ongoing, the trials should come to an end in 2008, and you told

9 me that this would be a problem because your trial could not finish in

10 2008, and this would have or trigger a number of consequences.

11 I did not say anything at the time to allow myself enough time to

12 think about it, because as you know, I am responsible for seizing the

13 Chamber, saying that the status -- for the pre-trial phase is completed

14 and that the trial can commence. I spent my summer recess thinking about

15 the matter, and the outcome runs as follows: I believe that this trial

16 should commence in November for the following reasons: A trial had

17 started last year in November, then there was a hunger strike which

18 interrupted the trial, and since that time eight months have elapsed, and

19 we are now in the pre-trial phase. As a rule, as far as I know, trials

20 have not been interrupted for any length of time. Usually when such a

21 problem arises the trials resume fairly quickly. I also wondered what

22 kind of -- how you could be prejudiced if the trial started in November in

23 light of swathes of documents. I think it is fairly obvious that you have

24 not read all the hundred or thousands or millions of pages that pertain to

25 your case.

Page 1378

1 I then reviewed the indictment, and I shall get back to this, and

2 the list of witnesses provided by the Prosecution.

3 I must tell you, Ms. Dahl, that I am not at all in agreement with

4 the schedule that you have provided. This is a confidential schedule. I

5 shall not quote any names because the hearing will remain in open session.

6 Now, from what I understand from the submissions of the

7 Prosecution, the Prosecution would like to call witnesses who are going to

8 be talking about the responsibility of Mr. Seselj. The Prosecution would

9 like to call these first. This is a fundamental issue. And then call the

10 fact witnesses.

11 This runs counter to any criminal case. Before addressing the

12 issue of the liability of a particular person, you need to understand what

13 the person is charged with, what the person is held responsible with, and

14 for what reason, what the event, what has happened, in what sense is it a

15 criminal act, and it's only after that that we can understand that the

16 accused might be charged with a crime that was committed.

17 I cannot agree with the order you have suggested. This would be

18 pure heresy to my mind. If you call witnesses who will say, "He's

19 responsible for this and that," when we have no knowledge of what has

20 happened, what destruction has been taken place, devastation, looting, or

21 what might have happened in a number of municipalities, this would be

22 inconsistent. Furthermore, not withstanding this inconsistency the rights

23 of the accused need to be abided by. We need to bear these in mind.

24 Before Mr. Seselj can cross-examine the witnesses who will come to

25 testify on his involvement in the JCE, joint criminal enterprise pursuant

Page 1379

1 to Article 7.1 on the events that unfolded as far as planning was

2 concerned, giving orders, and aiding and abetting. So it is important to

3 understand what has happened on the ground. What has happened on the

4 ground is something which you can highlight by addressing each point one

5 by one. A, the crimes committed in Hrtkovci, then in Vukovar, then in

6 Slavonia, in Western Slavonia, then in Bijeljina, Brko, and Bosanski

7 Samac, and Zvornik, Novi Nevesinje, and Mostar, and the area of Sarajevo.

8 THE INTERPRETER: Interpreter's correction replace "instigated"

9 instead of "aided and abetted."

10 MS. DAHL: This would be an advantage both for the Bench and for

11 you, Mr. Seselj, because the witnesses would come before the Court and

12 talk about what has happened in the area of Vukovar. And that is how we

13 can answer the question what, what happened, and what is the accused

14 charged with.

15 After that, the following witnesses will come to say XYZ is held

16 responsible for this and that, and Mr. Seselj. This would be a major

17 advantage, because Mr. Seselj would then see that the Prosecution would be

18 building a momentum. The -- his team can concentrate on factual issues,

19 witnesses will come to talk about what has happened. "I was in my house.

20 People came along. They burnt the house down," and so on and so forth.

21 This is not going to prejudice the accused, because he can then

22 cross-examine the witnesses. What will need to be highlighted is -- are

23 the facts, the events. Mr. Seselj can then better prepare for what comes

24 after that.

25 As I have said on a number of occasions, your indictment is a

Page 1380

1 rocket with three levels. On the first level is what has happened.

2 Second level, those people who have committed the crimes, identification

3 of the latter. And the third level pertains to the responsibility, the

4 nexus between the perpetrators of the crimes and Mr. Seselj. And this

5 over time will enable him, as he needs to prepare at length his defence,

6 this will enable him to prepare it well.

7 I understand what you are saying. If you start off straight away

8 about witnesses -- with witnesses who are going to talk about his criminal

9 responsibility, you will be putting him in a situation where he will run

10 into difficulties. To my mind, he will not be able to prepare for it,

11 even if he's been preparing it for five years. But during those five

12 years, I have the feeling and the distinct feeling that a lot of time has

13 been spent on the proceedings per se rather than on the merits of the

14 case. For him to be in the best conditions possible, I think this is the

15 way we need to proceed.

16 You are going to respond by saying it is for the Prosecution to --

17 to meet the burden of proof, which is not quite right, because Rule 90(F)

18 of the Rules of Procedure and Evidence entitles the Judges to monitor the

19 way in which the witnesses are being cross-examined, the way in which the

20 evidence is being accused, as well as the order in which the witnesses

21 come to testify.

22 So what the Prosecution is saying, "We do what we feel like

23 doing," I do not agree with this, because it is for the Judges and the

24 Pre-Trial Judge to say how these witnesses will come to testify. And

25 there are two reasons for this and two reasons why this has been clearly

Page 1381

1 mentioned in the Rules of Procedure and Evidence. A, to make sure that

2 the cross-examination and presentation of evidence is efficient to

3 establish the truth; and secondly, to avoid any waste of time.

4 The truth I am after, the truth that my colleagues are after, is

5 the truth with a capital "T", not the truth provided by the Prosecutor,

6 not the truth provided by Mr. Seselj. In short, the truth. And the

7 truth, so that there is no miscarriage of justice, needs to prevail.

8 The order in which the witnesses are called needs to be

9 consistent. It is very important in light of the fact that this is a

10 difficult case, that there have been many ups and downs, that a person has

11 been waiting now for five years to be tried, which is by any standards

12 exceptional. As far as I'm concerned, this case presented no major

13 difficulties. I think the time has come to stop wasting our time, and I

14 put it to you that when the trial is going to start in November, the trial

15 should start with witnesses who are going to come and talk about what has

16 happened. After that, things will be stepped up.

17 Mr. Seselj, I understand what your difficulties are and how

18 difficult for you it is to manage your defence. It hasn't escaped me that

19 a number of documents had not been disclosed to you, that a number of

20 documents have not been translated, or that the translation is pending,

21 and quite rightly so you can turn round and say, "Well, can I prepare my

22 case?" As far as the crimes in question are concerned, yes, because the

23 witnesses will come to talk about what has happened, and more often than

24 not what they will talk about is public knowledge. You will then have the

25 same time as the Prosecution has had with that witness to cross-examine

Page 1382

1 him or her, and this should not pose any difficulty whatsoever.

2 As far as the rest of the trial is concerned, if things start

3 speeding up because a number of witnesses is much shorter or that there

4 are fewer witnesses than expected and experience has shown that the

5 Prosecution has a very long list of witnesses and that at the end of the

6 day there are fewer witnesses, in that case we then need to switch to

7 important witnesses either because we will be addressing the perpetrators

8 of the crimes or because we shall be talking about your responsibility.

9 You can then, if need be, ask the Chamber for a short suspension to enable

10 you to prepare adequately. Suspension for a few weeks, which means that

11 we can protect your rights entirely. But we need to start in November,

12 because this has lasted long enough.

13 At the end of the day, I don't know what the outcome would be,

14 what your fate will be. This will be set according to the material

15 adduced by the Prosecution, challenged by you, and also any material which

16 you will provide. For the time being I have nothing. This will lead

17 either to your acquittal or to a conviction, but as things stand today I

18 don't know. It is only at the end, after assessing the evidence in light

19 of its probative value and relevance, that the Bench will draw its

20 conclusion. But for the time being my idea, contrary to what you think,

21 because sometimes you give us the impression that you feel you have

22 already been convicted, you have in front of you Judges who are wholly

23 impartial and honest, who will assess the weight to be given to the

24 evidence. They will hand down a decision either to acquit or to convict,

25 but it is impossible to say today that you will convicted. Every time you

Page 1383

1 say that as far as you're concerned you're going to be convicted, I will

2 say no, Mr. Seselj, no, because a trial is an account over time. There is

3 evidence and counter-evidence, and there is only -- it is only right at

4 the end that we determine the matter.

5 When I met you for the first time I told you trust this Tribunal,

6 because this Tribunal has already handed down decisions. Some accused

7 have been acquitted. Some accused have been convicted. This is not a

8 Tribunal that convicts automatically.

9 Let me remind all and everyone that the Judges must determine on

10 the guilt or not of an accused beyond any reasonable doubt, which means

11 that everything needs to be proven by the Prosecution on whom rests the

12 burden of proof. The Defence, and that is what a fair trial is all about,

13 and you yourself will be able to contradict the argument put forward by

14 the Prosecution, or you will be entitled to cross-examine, to provide your

15 own evidence, and it is in light of that that the Chamber will rule on the

16 matter.

17 I and my colleagues who are not here today, we have -- don't have

18 any documents yet either from one party or the other. It is once these

19 documents will be adduced, once this will be discussed, once the witnesses

20 will start to testify that we will determine the matter, but for that to

21 happen the trial needs to start.

22 You should be able to defend yourself. You've already done so on

23 a number of occasions. You will be assisted by people who seem to me to

24 be fully competent, and the trial will not be a biased trial but a real

25 trial, but for that to happen the trial must start.

Page 1384

1 I think that if we start on the month -- in the month of November

2 that is a good idea. In the first weeks of November the Prosecution will

3 present its case. You might take the floor to challenge what the

4 Prosecution has said, and the week after that we will start calling the

5 fact witnesses who will come talk about what has happened.

6 Mr. Seselj, you are going to turn round and say, "That's all very

7 well, but what about the indictment, which I challenge?" And you're going

8 say to me how can we start the trial when the indictment is being

9 challenged. On this particular point which is an important point, I will

10 answer by saying the following: You have filed a number of motions on the

11 indictment, on the initial indictment, and on the amended indictment. The

12 Pre-Trial Chamber, the Presiding Judge Robinson, Judge Bonomy, and I will

13 determine the matter, and I hope that we will be able to rule on this

14 before November. Of course after having ruled on the matter, you might

15 not agree with the decision that has been taken, and in that case you may

16 turn to the Appeals Chamber. But when an indictment is challenged, this

17 does not mean that the trial cannot commence.

18 In what way would this prejudice you? It does not prejudice you,

19 because if you challenge the indictment, this does not mean that you will

20 be further incriminated. Therefore, the decisions that will be taken will

21 either be taken in your favour or will uphold the indictment. This, in

22 any event, will not prejudice you further.

23 In addition, and you know this as well as I do because you are a

24 legal expert, you know as well as I do that the Rule provides for an

25 amendment to the indictment at any time, even when the trial has already

Page 1385

1 started. There are a number of examples that could be mentioned that the

2 indictment has been amended after the trial has commenced. The fact that

3 an indictment is not consolidated does not preclude this Tribunal from

4 working and doing its job.

5 Admittedly in civil law countries or systems like your country and

6 mine, the cases start once the indictment has been consolidated and once

7 the indictment is a definitive indictment, but in this case we are in a

8 mixed system, and my predecessors have felt that amendments could be made

9 to the indictment in the course of the trial. We are therefore in a

10 different system.

11 So as you come from a country, a civil law country, I understand

12 your reaction perfectly well, but here the indictment can be amended at

13 any time. And the Chamber will issue its decision before the beginning of

14 the trial. After that, of course, the issue of filing an appeal is

15 something different. The Prosecution or you might wish to seize the

16 Appeals Chamber, but that is a different story.

17 So the indictment is not a real problem, and at this stage I feel

18 it is in your interest to start this trial and that the trial should start

19 in November.

20 You're going to tell me that I am an optimist, but we need

21 optimism always. I know there are problems, obstacles. I know, for

22 instance, that I don't even know the identity of the two Judges who are

23 going to assist me. I don't even know the make-up of the legal officers

24 of the Trial Chamber. As you know, so far I only had the assistance of

25 one legal officer and an intern, and it was a very small team indeed, and

Page 1386

1 still I'll manage to work on the pre-trial stage since the beginning the

2 year. And as you can imagine, this has caused a lot of work for me and my

3 associates.

4 An easy solution would be to say, yes, let's quietly wait until

5 March to start, but that would be a dereliction of duty on my part,

6 because I see no obstacle to the trial being started, because I have

7 removed these obstacles. I'll venture to say that this trial should

8 have -- should have started when you surrendered to the Tribunal, in the

9 six months that followed your arrival. There was no reason in my view why

10 you had to wait all these months, all these years. Later on some may

11 compare the initial indictment with the latest and may wonder why there

12 was such a waste of time.

13 I regret it very humbly at my level. I'm trying to catch up with

14 lost time. This is the reason why I'm turning to the Prosecution. I tell

15 them that they have to work, taking into account the specific

16 circumstances and in trying not to do just whatever crosses their minds.

17 The Prosecution has to adduce evidence pursuant to Rule 90(F) and in

18 keeping with the instructions of the Chamber.

19 Therefore, your document of the 25th of July can be approved by me

20 in the (ii) the (iii) also, but I'm asking you to put the "i" right at the

21 end, and I shall hand down a ruling to the effect.

22 Mr. Seselj.

23 MS. DAHL: Your Honour, before you enter that order, although you

24 mentioned what you considered to be the Prosecution's argument on the

25 matter, I would like an opportunity to address you today on that issue.

Page 1387

1 Regarding the order of witnesses, there are two points I would

2 like to make. First, the gravamen of this case is Mr. Seselj's individual

3 criminal responsibility, and we consider that the evidence from witnesses

4 closest to him should come first. There does not appear to be a

5 reasonable basis on which to contest many of the criminal episodes that

6 form the basis of the indictment, namely, that because of their ethnicity

7 people were killed or expelled from their homes, that men and women were

8 raped and tortured, that places of worship and educational institutions

9 were destroyed. The key evidence will be that linking Mr. Seselj to these

10 events. The testimony --

11 The second point I want to make is that there are significant

12 security risks associated with the testimony of witnesses for whom we have

13 sought delayed disclosure and protective measures. It is incumbent to

14 permit the Prosecution to present the evidence from these protected

15 witnesses as soon as reasonably practical after the lifting of the

16 measures protecting their identity.

17 The more important and pressing question regarding the order of

18 the Prosecution's case is the form of the evidence that the Chamber will

19 hear. Will it be in written form or viva voce? The estimates provided by

20 the Prosecution for the length of their case are based on reception of

21 evidence primarily in written form. If the Chamber rejects those motions

22 and favours the presentation of evidence orally and does not at the same

23 time lengthen the time allowed to the Prosecution to present its case,

24 then adjustments will have to be made.

25 So I would consider that ruling on the motions for reception of

Page 1388

1 evidence in written form should come first before the Chamber seeks to

2 rearrange the order of the presentation of the evidence.

3 JUDGE ANTONETTI: [Interpretation] Ms. Dahl, let me answer straight

4 away. As to the security of witnesses, these witnesses have been waiting

5 for five years and a few months -- or if you add on a few months is not

6 going to change much basically to the issue of security risks. I fail to

7 see how they would be less safe today than they were five years ago.

8 That's my first comment.

9 Second comment, and here you go to the merits of the case, which

10 is of utmost interest to Mr. Seselj. It's bound to be for him. It is

11 whether as a matter of fact or how the trial is going to unfold.

12 I believe is that your starting point was that a large amount of

13 the evidence will be adduced in writing. That's what you said. That's

14 what you explained. And this is the reason why you filed many motions for

15 admission already now of a series of evidence under 92 bis or under other

16 Rules, starting with the testimony of Mr. Seselj in the Milosevic trial.

17 I've already told you that I cannot commit myself on behalf of my

18 colleagues, on behalf of the Trial Chamber. If I did so, that would be

19 putting them before a fait accompli. One Chamber would have sovereignly

20 decided that certain documents to be admitted, and as you know perfectly

21 well, when a document is admitted it has some relevance, it has some

22 probative value, whilst the accused would not be in a position to

23 cross-examine the witnesses concerned, and at this stage of the

24 proceedings could not present his views unless he files motions, and this

25 is something I'm totally against at this stage of the proceedings. This

Page 1389

1 is the reason why no decision has been made.

2 I could issue a decision in the very next minutes or in the very

3 next hours, but I decided not to. I decided not to take any decisions,

4 because I wanted to refer these motions to the Trial Chamber, because the

5 Trial Chamber is made up of three Judges, and I personally cannot replace

6 my colleagues to say that this witness under -- is admitted under Rule 92

7 bis.

8 Moreover, as I've already said to you, a trial is a construct, a

9 piece of architecture. You have foundations, you have walls, and you have

10 a roof.

11 The foundations, what are they? They're going to be the first

12 viva voce witnesses to testify. They will come to testify viva voce to

13 explain what happened with regard to crimes, to perpetrators of the

14 crimes, who's responsible for them, et cetera. These are the viva voce

15 witnesses. Then you have the 92 ter witnesses. That is the situation

16 when the Prosecution calls a witness, asks for the written statement to be

17 admitted, puts a few questions to the witness, and then gives the

18 witnesses to the Defence for cross-examination. Thereafter, you have 92

19 bis witnesses who come to corroborate things that the Judges have already

20 heard.

21 So let's not put the cart before the horses. Sorry for the

22 metaphor, but I think it speaks for itself.

23 Therefore, you have witnesses who come to testify viva voce. Then

24 you complement this with 92 ter. Finally, you file a motion under 92 bis

25 to explain that those witnesses should come in order to complete or to add

Page 1390

1 on to this or that witness came to say to a certain point previously.

2 Therefore, your approach, which is to think that this trial is

3 going to be a trial in writing and that Mr. Seselj will not be able to say

4 anything, well, I'm against it, because I'm not the Prosecution's toy. My

5 mission is to deliver justice impartially by examining and assessing

6 evidence.

7 I hope you understood what I meant to say. And before I give you

8 the floor, I'd like to say a final word.

9 The Milosevic statement in the Milosevic trial, Mr. Seselj is in

10 agreement. He is not opposed to it being admitted, but for Annex A. So

11 you see, I know the file. But of course I could issue a decision straight

12 away to admit it, but I want my colleagues to assess this, to look into

13 this in order to decide whether indeed Mr. Seselj's testimony in the

14 Milosevic trial, which he does claim to be good because in his filings,

15 and I quote him there, he said, "I'm proud of it." And so on the basis of

16 all this, I could easily make a decision, but I want this to be endorsed

17 by my colleagues. This is the reason why I have not ruled, although

18 Mr. Seselj is in agreement except for Annex A. Of course, Annex A is a

19 source of problems, and those problems have to be dealt with by my

20 colleagues too.

21 The way you wish to approach this trial can be shared by me in

22 part but not totally.

23 You have the floor.

24 MS. DAHL: Thank you. I wanted to perhaps point out a translation

25 issue. I don't think it is the Prosecution's approach to have the trial

Page 1391

1 completely in writing and to preclude Mr. Seselj from testing the evidence

2 through cross-examination.

3 Before you indicated that you were not interested in the

4 Prosecution's of the version of the truth or Mr. Seselj's version of the

5 truth but that you sought truth with a capital "T", and I submit that

6 there are no separate experiences or varieties of truth, and what we seek

7 here today is the same truth that the Chamber seeks. We do not consider

8 the Chamber the Prosecution's toy, and I reject that characterisation of

9 the role that we play in this case.

10 I consider also that the order of presentation of witnesses is

11 within the remit of the Prosecution to consider how best to offer its

12 evidence in the most persuasive fashion and that it is of the same nature

13 as the reception of evidence to be determined by the Chamber as a whole.

14 JUDGE ANTONETTI: [Interpretation] Yes, Ms. Dahl, I heard you, and

15 I'm very pleased to know that you as well as I seek the truth with capital

16 "T". Fine. And I'm sure that this goes for Mr. Seselj.

17 Well, there is total consensus in this matter. However, there was

18 one point I don't agree on with you.

19 Rule 90 does not give the Prosecutor the freedom to do whatever

20 they please. It is the responsibility of the Trial Chamber. It may be

21 that this was not the rule generally applied in this Tribunal, but as far

22 as I'm concerned and on the basis of my experience over several trials, I

23 can tell you that it is incumbent on the Judge to say how the order of

24 presentation of witnesses should be so that it shouldn't be confused or

25 for nobody to understand what's happening. Some logics must be applied.

Page 1392

1 Since you have taken over this case, I noted with great pleasure

2 that you have made a very serious effort. I have no criticism to level

3 there. However, with regard to the order of witnesses, it is a very

4 important matter. So much so that, and this is another reminder, when the

5 trial began the previous Trial Chamber said that you were entitled to call

6 102 witnesses, and you had 81 hours and 30 minutes to do so. In other

7 words, other Judges before me held that it was the Trial Chamber who

8 decided on the number of witnesses and on the time allocated for them.

9 That's the general rule. I can refer you to recent case law by the

10 Appeals Chamber, or in the other trial that I'm presiding over the Trial

11 Chamber reduced the Prosecution time, which didn't please the Prosecution.

12 The Prosecution appealed, but I was reaffirmed by the Appeals Chamber.

13 This goes to show that the Judges can have the control of the proceedings.

14 Secondly, following Trial Chamber I's decision of 8th of November,

15 2006, on the 27th of March, 2007, you set up a revised list of 105

16 witnesses. The Pre-Trial Chamber that I'm privileged to preside over,

17 which has two associates, carried out an examination of the time needed

18 for 105 witnesses, and if we total up the number of hours scheduled for

19 these 105 witnesses, we conclude that you would need 269 hours, which is

20 totally different from the 81 hours and 30 minutes imposed by the Trial

21 Chamber, who was then presided over by Judge Orie.

22 Now, 269 hours. You seem to say that out of these hours you have

23 92 bis and 92 ter witnesses. You must clarify this, madam. I need to

24 know who you plan to call as viva voce witnesses, how much time you plan

25 to devote to them in examination-in-chief. If I know that, I can say that

Page 1393

1 if for a certain witness you had planned three hours, Mr. Seselj will also

2 have three hours. Equality of arms is the principle.

3 If for another witness you planned four hours, Mr. Seselj will

4 also have four hours. He can decide not to use them, but he will have the

5 same amount of time as you do.

6 Let's speak about the viva voce witnesses -- or they were the viva

7 voce witnesses. 92 bis witnesses. I need to know there, too, who the 92

8 ter witnesses are going to be. As part of them you may have 15 or 20

9 minutes to put this few ritual questions such as, "Are you the author of

10 this written statement? Can you confirm it?" et cetera, and then you can

11 adduce certain documents thereafter. The Trial Chamber will give

12 Mr. Seselj a certain amount of time to this -- to the cross-examination of

13 the 92 ter witness, but that is a time that is scheduled in the 65 ter

14 list.

15 Once all this has been done, the Trial Chamber will assess the

16 overall amount of hours available to you in order to make your case.

17 You've understood me straight away. This is within a bracket

18 between -- of 81 hours and 269 hours.

19 Yes, Ms. Dahl.

20 MS. DAHL: The witness list we filed in March 2007 has all of the

21 information you just described regarding the estimates of viva voce

22 testimony and the time needed for witnesses who would be offering an

23 abbreviated testimony supported by a written statement. I'm puzzled to

24 come up with the 269 hours, and if we do reconvene on Monday, I'll do some

25 homework to figure out perhaps where that came from, but I had studied the

Page 1394

1 prior transcripts and the prior rulings and had reached the same number

2 that you announced first, the 80 hours to a hundred hours was my

3 recollection, but I don't have my worksheets here with me in court.

4 JUDGE ANTONETTI: [Interpretation] Thank you, Ms. Dahl. Yes,

5 you'll have to look at it again.

6 Personally, I've already carried out a first estimate. Of course

7 just by rule of thumb, because I don't have the documents, but I saw that

8 you had catered for a large number of hours, and I thought this is overly

9 optimistic as an estimate and that can be reduced. But this can be done

10 in the next Status Conference when we'll go through that.

11 But main problem is around the 92 bis issue. Why is it a problem?

12 In his filings, Mr. Seselj is against the admission of 92 bis statements.

13 Let me refer you to the numerous submissions made in this respect in a

14 nutshell. I'll stand corrected by Mr. Seselj if I'm wrong, but he

15 encapsulates in his filings that he is entitled to cross-examination of

16 witnesses and he wants to exert this right by asking witnesses to be

17 called to the hearing and not in writing. This is worth a discussion

18 among fellow Judges, but as far as I can see, we have a solution already

19 in the Rules.

20 Inasmuch as it allows under 92 bis for written statements to be

21 admitted when the latter is or are of a cumulative nature and that other

22 witnesses are about to give or have given oral testimony of similar facts

23 or relate to historical or political or military background or consist of

24 a statistical analysis of the ethnic composition or concern the impact of

25 crimes upon victims or relate to the character of the accused or relate to

Page 1395

1 factors to be taken into account in determining sentence. But we're not

2 there yet.

3 In fact, the only problem for the Chamber is to know which these

4 cumulative facts are, but in its great wisdom, the Rule says that there

5 are factors mitigating against it when there is an overriding public

6 interest in the evidence being presented orally. Because a party in this

7 case, Mr. Seselj, is opposed to this, because he says and demonstrates

8 that this evidence is not trustworthy, but he'll have to point to this, or

9 else that there are other factors which make it appropriate for the

10 witness to attend for cross-examination.

11 In practice, and I'm saying this for Mr. Seselj's sake, in

12 practice how do Judges proceed? They have 92 bis motions. You yourself,

13 when your turn comes you may also file 92 bis motions. They're read by

14 the Judges, and the Judges check that the contents of the statements is of

15 a cumulative nature comes to support what other witnesses have said.

16 Let's take a very simple example. Let us imagine that there is

17 viva voce witness who comes to explain that in his village where he used

18 to live his farm was destroyed, and he adds at that time that the

19 surrounding farms have also been destroyed, viva voce. Now, you have a 92

20 bis witness. A neighbour of his comes to say the same, saying that his

21 farm too was destroyed in that village. That's how 92 bis works.

22 But in order to proceed in this way, you need to have some

23 evidence on facts presented by a viva voce.

24 So, Ms. Dahl, this is the reason why I can't Rule on all the 92

25 bis motions. Firstly, because I don't know what those witnesses would

Page 1396

1 have said because I haven't heard them, and secondly because I don't know

2 how my colleagues feel about this. They might have a different view than

3 mine. They may then decide -- but they make a majority decision if I

4 don't agree but there will be a majority decision, and this cannot be

5 pre-empted by me.

6 I know -- I know that there are Trial Chambers that have already

7 ruled during the pre-stage trial on 92 bis motions. As you can imagine,

8 I'm a specialist, and of course needless to say, I wondered whether this

9 had been done before, and indeed in the Boskoski and Ljubicic case such

10 decisions were made, but in the said case the Trial Chamber referred cases

11 like that to national jurisdictions. In other cases the Judgement

12 Chambers ruled on the matter. That is why the 92 bis Rule cannot be

13 implemented at this stage.

14 As far as Mr. Seselj's commission is concern, i.e., his right to

15 cross-examine, of course you are entitled to this right, Mr. Seselj, but

16 I'm sure you will understand that the Chamber is -- has the saving of time

17 in mind. For instance, a witness comes and talks about a farm that has

18 been destroyed and a 92 bis motion is filed to admit another document

19 that -- or statement that says the same thing. Of course I will admit or

20 grant the motion, because your cross-examination on the second witness

21 will not provide any further information, because when the first witness

22 comes to testify you will be able to cross-examine the person in question,

23 and you can say, "How many farms were destroyed?" "The farm of my

24 neighbour was destroyed," and the neighbour can then come and testify

25 according to our 92 bis Rule.

Page 1397

1 Mr. Seselj, experience has demonstrated that the Judges don't go

2 in all directions. The Prosecution will file this motion, but the Judges

3 will realise that the witness needs to be cross-examined, and then we will

4 deny the motion and stipulate that the witness will be cross-examined.

5 Let me remind you that the Judges are entitled to put questions to

6 the witnesses. We are not in a hundred per cent common law trial where

7 the Judges twiddle their fingers and do not take the floor. According to

8 the Rules, the Judges are entitled to put questions to the witnesses, and

9 as far as I'm concerned I never hesitate to put any questions to a

10 witness. Therefore, in certain cases in 92 bis statements may call for

11 the presence of the witness in the courtroom.

12 Mr. Seselj, to sum up, I have read your various submissions

13 relating to the 92 bis Rule. You have the right to cross-examine the

14 witness, and this lies at the heart of the rights of the Defence and the

15 Statute of this Tribunal. But if you are to cross-examine, yes, of

16 course, when the witness is an important witness. When the witness will

17 discuss the behaviour of one or other person. But as the Rules stipulate,

18 if you are to cross-examine someone who is a 92 bis witness, who provides

19 statistical data on the ethnic composition, you may disagree, of course,

20 and with this kind of procedure you are entitled to say, "I disagree, and

21 therefore I would like this witness to testify. I challenge what he says

22 about the ethnic composition. He is making a mistake," and then you

23 submit your argument, and the Trial Chamber, in light of such a challenge,

24 may call the witness or ask the witness to come to testify. There are --

25 there is a difference of opinion here. Other witnesses will come to

Page 1398

1 testify. The Prosecution will call its own witness to challenge this.

2 Otherwise, we would have hundreds of witnesses every time, and that is not

3 possible.

4 There again I'm turning to Ms. Dahl. Experience has demonstrated,

5 and my experience and this Tribunal has shown that when you choose your

6 witnesses, call the important witnesses. It is for you to choose your

7 witnesses and present them to the Chamber. They're important to you but

8 important to establish the truth. Do not set aside some witnesses to call

9 witnesses who will come to talk about things which are important to the

10 witness himself or herself but to call witnesses who are important to

11 establish the truth.

12 This is -- lies at the heart of the trial. This is what underlies

13 the burden of proof. And this is important because Mr. Seselj can then

14 challenge what is being said.

15 It is for the Chamber to strike the balance, to protect the

16 interests of justice.

17 Tonight at the end week we are not going to settle this issue.

18 Mr. Seselj, next week we shall meet again on Monday afternoon. I will

19 give you the floor so that you can respond to the issues I have addressed,

20 to the issues that Ms. Dahl has addressed, and you will state your

21 position and your feeling on these matters.

22 My associate has just told me that the hearing will be held in

23 this courtroom at a quarter past 2.00.

24 Once we have addressed those matters, I shall then turn to some of

25 the outstanding motions on the issue of disclosure of material, and I

Page 1399

1 shall also address the issue of special defence. We need further

2 clarification on these issues.

3 Over the next few days and weeks I will come up against a very

4 great difficulty, because all the courtrooms are overbooked. There are

5 seven trials ongoing at this stage. I'm going to find it very difficult

6 to find a day to convene a Status Conference. My associates have

7 contacted the people in charge of scheduling. As soon as we have a slot,

8 we shall be able to organise this Status Conference. I may have to issue

9 an order on a Status Conference. If there are no slots available, I have

10 two other possibilities. A, I would hold a Status Conference at 8.00 in

11 the morning. Unfortunately, we will only have half an hour in that case,

12 because we need to have a 30-minute interval between two cases to change

13 over the tapes. So if need be, I could hold a Status Conference on

14 Tuesday at 8.00, on Wednesday at 8.00, and Friday at 8.00. As far as I'm

15 concerned, that is not a problem. I can hold a status conference at 10.00

16 p.m. until 4.00 in the morning if need be. I am accustomed to that.

17 The problem is you need to come to the Tribunal. From what I

18 understand, the Dutch police does not want to carry out the transport at

19 certain times. We have problems with the interpreters timewise which

20 means that we do have time restrictions, which is somewhat of an

21 inconvenience, but for my part I am available. Next Monday I was to hold

22 a hearing with a witness. That has been cancelled, so I seized this

23 opportunity straight away and reconvened another Status Conference.

24 It is now 7.00 p.m. I know that the interpreters are becoming

25 restless.

Page 1400

1 Ms. Dahl, very briefly.

2 MS. DAHL: A brief housekeeping matter for the court reporter. I

3 wish to note a correction needed in the English transcript at page 25,

4 line 7. The speaker is attributed to the Prosecution whereas in fact the

5 Pre-Trial Judge was speaking.

6 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, very briefly.

7 THE ACCUSED: [Interpretation] Judge, this point of the agenda has

8 been going on for an hour and 10 minutes. I would need at least 10

9 minutes to shed some light on the issues because until now I did not take

10 part in the discussion.

11 First of all, I had never any misgivings about the final outcome

12 of this process. Moreover, I said on many occasions that I'm not really

13 interested in it. What is important for me is to win in the eyes of the

14 public.

15 I have no reason to doubt your objectivity and fairness because so

16 far you have not given me any reason to doubt you, but I do doubt the

17 impartiality of this Court. I think it is anti-Serb in nature and too

18 many Serbs have been condemned here for me to trust this court.

19 I am aware that this is a historic process. Such a process has

20 never ever been happening before in international law. That's why it's

21 important for me to win.

22 I have lived long enough. I am no longer interested in the

23 judgement. What I'm interested in is the trace I will leave behind me.

24 To be quite honest with you, I want to come out of this process with

25 glory. That is my only concern.

Page 1401

1 Second, I never asked for a postponement until March, never. I

2 just made an estimate based on the status of this case that it will not be

3 possible to begin before. It's more convenient, actually, for me to begin

4 in November.

5 Let me remind you of some statements of Refik Hodzic, the

6 porte-parole of this Tribunal. In the Belgrade publication Pres [phoen],

7 he said that it was my fault the trial had not begun yet and that I had

8 asked for a postponement to March 2008. This is a blatant lie. He also

9 said I asked for additional time to prepare for the beginning of the time.

10 I never asked for additional time. I only pointed out objective

11 problems caused by the Prosecution with their inactivity for the past five

12 years. He says the trial would have begun in November last year, but it

13 was my fault it didn't because I had begun a hunger strike. Only great

14 suffering and trouble made me start that hunger strike.

15 There are many other things that Refik Hodzic said and that were

16 published on the 6th of August in the daily called Pres [phoen].

17 Therefore, I agreed that the trial starts in November. However, is

18 everything ready for trial? You see, last year the crime base was taken

19 out of the indictment for Western Slavonia, Bijeljina, Brcko, and many

20 other places. It's no longer in the indictment, but it is still in the

21 material. Is it out or not? I now see that it isn't. Maybe it is still

22 in the indictment. Maybe the previous Trial Chamber made the confusion,

23 because they said it should not be in the indictment, but it should in the

24 crime base. Things should be coordinated.

25 This is a problem created by the Prosecution. I believe that as

Page 1402

1 the Pre-Trial Judge you could already decide on this. Either evidence

2 will be presented in the crime base on all these places and then the old

3 indictment should be back in place, or the new indictment should be

4 revised and the evidence should be reviewed. Otherwise, my hands are tied

5 in many ways.

6 Now, with these written statements, in one of their submissions

7 the OTP clearly made it known that they were going to try to present most

8 of the evidence through written statements. The application of 92(F) is

9 no longer possible. That Rule applied -- sorry, 89(F). That Rule applied

10 earlier, because it's sui generis, and cases that fall under it are in

11 species. Nothing can be led any longer under 89(F). Then the application

12 of 92 bis, ter and quater cannot be the prevailing method of presenting

13 evidence. If it is, I am not going to take part in this trial. I don't

14 want to look at Zombie witnesses in this courtroom. Those statements are

15 written by the Prosecution, not by witnesses. Sometimes witnesses don't

16 even read what's in them. In Milosevic 42 witnesses claimed they didn't

17 know what was in the statement that written in English which they don't

18 speak. I think something like that is impermissible.

19 Then in the submission of the OTP which was given me on the 14th

20 of July -- sorry, dated 14th of June and given me later, it's a motion --

21 THE INTERPRETER: Could the speaker please slow down.

22 THE ACCUSED: [Interpretation] In footnote 28 on page 6 it says, I

23 quote: "If the Prosecution is required to print out all the material that

24 the accused has so far rejected, estimated at 400.000 pages, the costs of

25 work and material resources would be higher than 75.000 euros." And in

Page 1403

1 what time will they do this? So far they have presented me in some 50

2 binders around 10.000 documents, maybe more, I haven't been able to count.

3 What about the other 390.000? When will that be served on me? It has to

4 be served me before the beginning of the trial. There is enough documents

5 that the Prosecution accidentally comes across when the trial has already

6 begun. This is material that the OTP already had in 2003. They were just

7 not ready to present them to me.

8 That's the problem. How can you solve it. If you can solve it

9 before November, I'm certainly not going to make a problem. I'm looking

10 forward to it. I'm actually impatient. I have already found myself in

11 this role, and I'm frankly looking forward to the trial.

12 On the 25th of June the OTP gave me 35 witness statements under

13 the decision of the Trial Chamber of the 4th of July and 16th May. Only

14 two of them were in Serbian. The rest was in English, and I returned

15 them. After your decision everything has to be in Serbian and on paper

16 they keep persisting on -- on giving me material in English.

17 Then the material on Vuk Draskovic and his Serbian guard whose

18 crimes were ascribed to me in Herzegovina. Then the statement of a

19 certain Ibrahim Sutar [phoen] is in English. He's not a protected

20 witness, that's why I'm mentioning his name, what am I going to do with

21 his statement in English? Then there is no system in the submission --

22 JUDGE ANTONETTI: [Interpretation] [Previous translation continues]

23 ... You are quoting names. I don't know whether these are protected

24 witnesses or not.

25 THE ACCUSED: [Interpretation] I have checked. He's not protected,

Page 1404

1 otherwise I would not have mentioned him.

2 MS. DAHL: Your Honour in accordance with the suggestion I made at

3 the last Status Conference, if names are mentioned the entire proceedings

4 should be placed into private session so as to avoid inadvertent

5 disclosure.

6 THE ACCUSED: [Interpretation] I will be able to avoid --

7 [overlapping speakers] I'll mention this one in the certainty that he's

8 not a protected witness. Then there is the question of relevance of the

9 documents that are being presented to me. The OTP announced about 4.000

10 pieces of evidence, exhibits. So far 1 through 500 have been presented to

11 me.

12 Now, the question comes up of the relevance of this material. Do

13 you know what they presented to me? Registries of births, deaths in

14 Hrtkovci from 1945 through 2000. They are presenting me with the

15 textbooks of the Command Staff Academy of the army of Yugoslavia, rules of

16 corps, and rules of brigade. They are giving me textbooks of the military

17 academy of ground forces, the strategy of armed conflict, the Statutes of

18 the municipality of Bosanski Samac. They have 4.000 exhibits. Maybe 10

19 per cent are relevant. The rest are not.

20 I'm drawing your attention that I will not allow a single exhibit

21 to be admitted into evidence before the OTP demonstrates here that they

22 are really relevant. It's their obligation under the Rules of Procedure.

23 Many lawyers in many cases fail to pay attention to this. They think it

24 has nothing to do with their witness so let it go into evidence. In this

25 case, in my case, this will not work. They will have to prove that this

Page 1405

1 is relevant for a reason. This textbook from the Command Staff Academy

2 may be relevant in some way or the rule of corps, maybe I was the

3 commander of a corps, I don't know.

4 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, we're going to stop

5 now because one is pulling my ears. It is 7.00 and we have exceeded our

6 time. I shall give you the floor again on Monday.

7 But between now and Monday, Ms. Dahl, I would like you to respond

8 to a number of issues raised by Mr. Seselj at this very moment. So please

9 read the transcript again, and I shall give you the floor so that you can

10 respond to Mr. Seselj.

11 I would have liked to pursue this hearing. It is it of great

12 interest to me, but for a number of reasons we need to adjourn now. We

13 shall meet again on Monday, and I wish you a pleasant weekend.

14 --- Whereupon the Status Conference adjourned

15 at 7.11 p.m., to be reconvened on Monday,

16 the 20th day of August, 2007, at 2.15 p.m.