1 Thursday, 27 September 2007
2 [Status Conference]
3 [Open session]
4 --- Upon commencing at 9.01 a.m.
5 [The accused entered court]
6 JUDGE ANTONETTI: [Interpretation] Good morning, Mr. Registrar.
7 Please call the case, please.
8 THE REGISTRAR: Good morning, thank you, Your Honour. This is
9 case number IT-03-67-PT, the Prosecutor versus Vojislav Seselj.
10 JUDGE ANTONETTI: [Interpretation] Thank you, registrar. I just
11 want to check whether the translation into is --
12 This Thursday, 27th September. I welcome the representatives of
13 the Prosecution. I also welcome Mr. Seselj and all the persons who are
14 present in this courtroom.
15 So today we have all morning. We have four hours, during which I
16 will tell you about a certain number of questions, and Mr. Seselj and
17 Ms. Dahl may intervene if they have also some concerns or topics which
18 they wish to talk about.
19 First of all, there is the delicate, Mr. Seselj, which concerns
20 you directly. Principally, you will have noted, and I will be very candid
21 with you, that there is a procedure which has been put in place for the
22 hearings, which is the following: I am the first one to enter, and then
23 you come in the room second. Why? The reason why is to avoid a problem,
24 the problem which you had talked about when you don't rise when the Judge
25 or the Judges enter the courtroom. Therefore, I have given a 50 per cent
1 solution to the problem. There is anther a 50 per cent problem which I
2 did not solve, because when I leave, or when the members of the Chamber
3 leave the courtroom, you are not going to rise. Therefore, I have
4 pondered about the reasons which are your -- which motivate your attitude.
5 I suppose you are doing this because you said that you contest the
6 existence of the Tribunal, and, therefore, it is your way of showing that
7 you are opposed to the Tribunal. So this, of course, is your choice. And
8 I may understand your position myself, but I'm not alone. Why am I not
9 alone? Well, because, we are in a court which follows certain rituals,
10 ceremonials, and there are also people in the public gallery as you know
11 it. It's also broadcast and put on the internet. There are some people
12 who are watching. There will be witnesses who will come who may have been
13 victims in certain cases or because of certain facts; and for these
14 victims, for these persons, for the people who are watching and all
15 persons who are watching, the fact of not rising might be interpreted by
16 these people as a refusal of everything, as being discourteous or as a
17 behaviour, which would be a form of contempt, of course.
18 For the moment I am alone, sitting alone. Soon, I will have two
19 other colleagues for the trial itself. I do not know what my colleagues
20 will think. As far as I'm concerned, I do not wish your attitude to be in
21 any way prejudicial to you. As I told you, to my mind, you are presumed
22 innocent. Therefore, you are a person, a citizen, a human person worthy
23 of respect, my respect, with rights, and who therefore within this court
24 will have a role to play in the coming weeks.
25 If you remain seated, in order to show your opposition or
1 disapproval of the Tribunal and to the person of the Judges themselves, I
2 don't know, maybe the way it is perceived by the Judges themselves or
3 others may be negative. So this is what I wanted to tell you first.
4 For the moment, I try and avoid the problem, but I can only avoid
5 50 per cent of the consequences, and I will not be able to avoid the
6 problem when there will be a witness and when the Chamber will be
7 complete; and, then, the usher will ask everybody to rise, all rise, and
8 you will not rise. You will remain seated. So this will be seen. It
9 will be commented in the press, and the witness will also notice.
10 This is the problem, and you certainly have your own reasons.
11 Perhaps you could let me know. You now have the floor, Mr. Seselj.
12 THE ACCUSED SESELJ: [Interpretation] Judge, you are quite right on
13 one issue. I really do not recognise and never will recognise the
14 legality and legitimacy of this Tribunal. I told you this several months
15 ago. That is my right. However, I do admit that this Tribunal is a
16 material force which is capable of imprisoning me, holding me here
17 illegally for five years, and organising for to me put up trial. That's
18 my starting point.
19 I, therefore, felt it was better and more in my interests for me
20 to respond to the summons by this illegal court and to oppose the illegal
21 charges against me, the false charges against me here. That's why I have
22 decided to participate in this process.
23 Secondly, in the Serbian legal system, this custom does not exist.
24 Nobody rises when a Judge enters the courtroom. Nobody rises when a
25 Chamber leaves the courtroom. There's only one instance when people rise
1 and that's when the judgement is being handed down, but then everybody
2 stands up, including the Judges and everybody else present, not just the
4 This is not the practice here, but I am adhering to the Serbian
5 legal system, and I will not desist from this.
6 Thirdly, there is no rule, no regulation, law or by law binding
7 anyone to conduct or engage in any kind of gymnastics or to rise when a
8 Chamber comes in and goes out. This is just a custom that nobody has
9 opposed. You know what the laws here are like. All they care about is
10 keeping their good salaries. So nobody has raised this issue apart from
12 Something happened when I was a witness in the case against
13 Mr. Milosevic. For three or four days, as a witness, I did not wish to
14 rise, and then Judge Robinson threatened that he might interrupt my
15 testimony. Under threat of having my testimony interrupted, and I cared a
16 lot about testifying, I said, "I agree. I will rise here, but I will
17 never rise in my own case."
18 This may represent a problem to you and your colleagues, and you
19 have to solve it. How you will solve me if I will not submit to your
20 will, how can you solve it? You can impose sanctions; for example, you
21 can characterise my behaviour as an aggravating circumstance. You can
22 increase my sentence by 10 years and that will be quite in order. I will
23 understand it, but I will not rise because I have no reason to rise for
24 anyone. I can rise or kneel only before God; but to another human being,
1 Of course, there are certain conventions governing this custom,
2 when one rises, in order to show one's respect to a friend or somebody
3 else. But to throw somebody under your feet just because he has been
4 falsely accused, that is something I will not stand for. I will not bear
5 it. It is your prerogative to impose a sanction on me, and I will accept
6 it. Determine a certain number of years of imprisonment more and
7 everything will be all right.
8 In this case, you know, there's another point to be raised. By
9 your leave, just let me say this.
10 When I first appeared before this Court, I raised the issue of the
11 clothes worn by the Judges, the Registry, and the Prosecution. That also
12 is a problem for me. You once attempted to answer that question of mine,
13 but I was not satisfied with your answer. However, I did not have time to
14 express my disagreement because we had more serious things to deal with.
15 You said that, in every court, there are special ways for Judges
16 and other personnel to dress, but this has never existed in the Serbian
17 court. There are no Judges' robes in Serbian courts, no special clothes
18 for the Prosecution, no special clothes for members of the Registry. In
19 Serb courts, everybody's only duty-bound to appear in decent, normal
20 clothes; nothing more than that.
21 I'm adhering to the principles that apply in the Serbian legal
22 system, especially bearing in mind that no regulations or rules exist here
23 regulating that. The Rules of Procedure and Evidence might be changed or
24 the Statute might be changed to introduce this, or the president of the
25 Tribunal can issue binding instructions, but that then will not apply to
1 me but to future trials. It cannot apply to me retroactively. No legal
2 norms that are prejudicial to me can be applied to me retroactively, and
3 such a rule or norm would certainly be prejudicial to me because it would
4 force me to engage in gymnastics in the courtroom, which I do not wish to
5 engage in.
6 JUDGE ANTONETTI: [Interpretation] You had already explained this,
7 talking about the robes or gowns of the Judges, and your main argument is
8 that, in Serbian law, the Judges do not have gowns, and that, in the
9 courtroom, nobody rises when the Judges enter the courtroom or when they
10 leave the courtroom. Therefore, you consider that there is no reason to
11 act any differently, all the more so as in the Rules it has not been
12 provided for. This is your argument.
13 As for myself, the important point was to understand your
14 position. You have now explained it. I am not going to comment upon it,
15 and I needed to let you know.
16 Last point about the gowns of the Judges. This Tribunal uses
17 them. It could have been in plain clothes. Colours may have been
18 different. I am not the one who decided about this, these rules, and I
19 just apply these regulations, follow them. So that's what I have to say
20 on this specific point.
21 Now we are going to pass to other topics such as the opening date
22 of the trial. First of all, I have to give you some information which are
23 the following: It is agreed that there will be a pre-trial Status
24 Conference on Tuesday, 6 November. If I'm not mistaken, it will be
25 Tuesday, 6 November. I think the legal officer can check. Yes. And at
1 this Status Conference, there will be the two Judges constituting the
2 Bench; and, during this conference for the opening of the trial, this
3 Pre-Trial Conference will be a hearing during which the members of the
4 Chamber will be in a position to determine officially how many hours will
5 be given to the Prosecution and also how many witnesses will come to
6 testify. Also, this conference may be the place and the moment where
7 there will be some debate on residual matters which will not have been
8 completely settled beforehand. So this would be on that Tuesday.
9 On the Wednesday, next day, Ms. Dahl, I suppose, unless it is
10 Ms. Carla Del Ponte herself, will express following the Rules the
11 arguments of the Prosecution in its first statement, in its opening
12 statement. So I have provided for four hours for a complete statement.
13 So that will last for four hours.
14 The next day, that is to say, the Thursday, yourself, Mr. Seselj,
15 if you so wish, because the Rules enables you, allows you not to do so,
16 you will then have the floor for the same time, four hours, in order to
17 make your own opening statement and present your own position, state your
18 own position, on the merits of the indictment.
19 So we have, therefore, these three days which have been scheduled.
20 In the meantime, I have also asked the President of the Tribunal to let
21 him know that the order has scheduled these three days, and the Registrar
22 also is notified, because it is the Registrar, according to the Rules, who
23 must see to it that we will have the necessary courtrooms.
24 The problem we have just now is the following: As you know,
25 because I know you're very well-informed, the Tribunal for the moment is
1 running seven trials and we only have three courtrooms. Therefore, one
2 needs from time to time to have one of the Chambers, which normally sit,
3 would not be sitting, so that the seventh trial can also go forward.
4 Up to now, I have had some information from other Chambers
5 according to which they do not wish to free any courtroom because of their
6 schedule for their own hearings, for their own trial. Therefore, the
7 Registrar and the President of the Tribunal, possibly the coordination
8 committee which has foreseen to agree on these matters. As far as I'm
9 concerned, able be quite firm on this matter, one has waited too much for
10 the opening of your trial and we must begin this trial. In order to do
11 so, one must start the procedure which is foreseen in the Rules, which is
12 to be added another problem, which is the courtroom availability.
13 As you know, there are three courtrooms. I know you will have had
14 an opportunity to go to courtroom I, courtroom II, and courtroom III here.
15 We are in courtroom III. So I suppose, I presume that, once the
16 Prosecutor's opening statement and you were answer will have been made,
17 there will be some public attending in the public gallery, and the members
18 of the press want to be present for these opening statements. Therefore,
19 those hearings will be held only -- they're only possible in courtroom I
20 or courtroom III, because in courtroom II there is -- there are only two
21 seats for the public. Therefore, it has to be either here or in courtroom
22 number I.
23 Courtroom number I, as you know as well as I do, was once reserved
24 for the Milosevic trial. Courtrooms I and III are presently used for
25 multiple-accused trials, and number II is usually a courtroom where you
1 can have three accused, but it's a very small courtroom and the attendance
2 of the public is extremely limited.
3 Therefore, for your own trial, one might use courtroom II when
4 there will be some closed hearings. Because you're in closed hearings,
5 there is no attendance, no public, so there would be no problem. But
6 public hearings with witnesses, public witnesses, or witnesses with
7 protection for their voice or their features or their pseudonym, that will
8 be courtroom I or III.
9 Now, for the moment, I have no answer from the Registry on this
10 matter of available courtrooms, but there is also another question. Once
11 these proceedings will have started, we will have the question of hearing
12 the first witnesses. In theory, normally, following on that, one should
13 start next week with the first witnesses, and there Prosecution will also
14 need to know what is on schedule in order to get these witnesses in The
15 Hague and preparing some proofing.
16 So it is for the Registry to let us know as quickly as possible
17 when this will be possible, because if we meet with an impossibility at a
18 given moment because of the other trials and because the other Judges do
19 not want to leave a courtroom, the best solution then would be to begin
20 the first phase of the trial -- well, first of all, the Pre-Trial
21 Conference and the two hearings with the opening statements, then wait a
22 few days, perhaps one or two weeks even, so that we may then have the
23 possibility to have some courtrooms available.
24 Because with seven trials that are ongoing, we will encounter this
25 sort of problem. So some will have to make sacrifices in order to enable
1 the good running of the seven trials and three courtrooms. If it weren't
2 the case, there would be no possibility to actually manage in a serene way
3 those seven trials in question, and perhaps one day eight trials. But I
4 am not talking about the Status Conferences or the decisions made by the
5 Chambers when trials have finished. So there's a series of problems which
6 add up to all this.
7 Now, having seen these administrative or housekeeping matters,
8 this is not, of course, within your province, but I want to be as
9 transparent as possible, and, therefore, I wish to inform you of all these
10 aspects, because a Status Conferences is the proper place to say
11 everything. My policy is to always tell the truth and let it be known
12 where problems may arise.
13 So, Mr. Seselj, you have the floor.
14 THE ACCUSED SESELJ: [Interpretation] I have no intention of making
15 an opening statement straight away. I decided to make the Defence opening
16 statement at the beginning of the Defence case, but I would like to ask
17 you to enable me on the 8th of November to make a statement by the accused
18 according to Rule 84 bis.
19 Last time, when the proceedings were scheduled, it was planned
20 allow me to do this; and, as far as I remember, whether the time limit was
21 three hours or two and a half hours, I can't quite remember now, for this
22 statement by the accused. But, anyway, I now ask as the Prosecution is
23 going to have four hours for their opening statement to allow me four
24 hours on the following day for a statement of the accused, and there was a
25 precedent in the Milosevic case. He was given two days to make the
1 statement of the accused, and then two days later he presented an opening
2 statement with respect to Kosovo and Croatia, Bosnia and Herzegovina
3 subsequently. So a precedent exists, already existed. So that then would
4 be the statement of the accused that I would like to deliver.
5 JUDGE ANTONETTI: [Interpretation] As far as I'm concerned, there
6 is no problem at all. As far as I'm concerned, there is no problem at
7 all. The equality of arms, one has to be equitable. The Prosecutor will
8 make its opening statement before that, and it's perfectly normal that you
9 should have a day in order to make your own statement. There will be no
10 problem about that, no question. I assure you that you will have your
11 four hours without any problem.
12 Yes, Mr. Seselj.
13 THE ACCUSED SESELJ: [Interpretation] With respect to the second
14 question you raised, this is what I would like to say: I think that the
15 problem of courtroom facilities is not as important because we have
16 videotapes on the internet sites of the Tribunal that can be used, but
17 there are very serious problems there and I expect them to become evermore
18 serious in the future.
19 During the last two Status Conferences, the video sites did not
20 transmit the proceedings. The one but last not at all and the last one
21 just partially. Something was broadcast in English but nothing in
23 As these problems do not occur and crop up in the other trials,
24 then my conclusion is that somebody intentionally obstructed this for my
25 proceedings. So it would be a good idea if the Registry were to place on
1 the Tribunal's site the entire process, and then that meets the
2 requirements of the public character of the trial and it doesn't matter
3 whether you will be able to fit in two just journalists in the public
4 gallery or 200. But, as an accused, it is in my interest to see that this
5 problem is resolved, to ensure the public character of the trial and that
6 is why I insist upon this.
7 JUDGE ANTONETTI: [Interpretation] I will look into that
9 As you were speaking, I was looking on the internet to see whether
10 images are being broadcast, and it is indeed the case. I will also check
11 to see whether images are also broadcast on the internet. But if ever
12 what you say is true, in other words, that someone is trying to sabotage
13 the broadcast, that would be extremely serious. So I will look into this
14 point. There is no reason why your trial should not, like all others, be
15 broadcast to the world.
16 Now, the other problem is -- or has to do with sound. You seem to
17 suggest that your language was not broadcast; and, therefore, everything
18 that is interpreted into your language or when you speak yourself, you say
19 this is not broadcast. But that's a bit surprising, because technically
20 the -- there should be no problem with the audio sound. But I will also
21 look into that, and I've taken good note of what you've said.
22 You have already raised the issue once, and I had already looked
23 into it myself and noted at the time that there was a broadcast on the
24 internet, but you've just said that the two previous -- for the two
25 previous conferences that was not the case. So I will look into it and
1 find an explanation, because I wouldn't want anyone to try to do such a
3 As I also read the Belgrade press, I discovered, and perhaps you
4 can give me an explanation on this topic, that you had some problems with
5 the broadcast of the trial. You would like the trial to be broadcast on
6 either public or private channels, I don't know, and it would seem that
7 currently an initiative is being taken so that your trial can be broadcast
8 in your country.
9 From my point of view, there should be no problem with regard to
10 broadcasting the images. Everything that goes on in this courtroom can be
11 broadcast on a television station, be it a private or public channel. So
12 from my point of view, there is absolutely no problem.
13 Would you like to say something on this issue?
14 THE ACCUSED SESELJ: [Interpretation] Yes. In Serbia, at present,
15 a petition is being signed for the state television, the Public Service of
16 the Television Service of Serbia is what it's called, to televise this
17 process directly, these proceedings directly, and several thousand
18 signatures have been collected thus far. The outcome is uncertain because
19 this doesn't suit, quite obviously, the regime in Serbia today. They
20 don't want to have televised proceedings. They had an unfortunate
21 experience with Slobodan Milosevic, and their expectations were quite
22 contrary to the effect the legal proceedings had in public, but that's a
23 matter of internal Serbian affairs.
24 But there are private television channels which are prepared to
25 televise the proceedings directly, but this would require cooperation from
1 the Registry, which means that the Registry should allow the use of
2 satellite links under the same conditions provided at some -- by the B92
3 television station, which is a pro-Western television station financed by
4 Soros, the Western Intelligence Services, and so on; in other words, it is
5 anti-Serb television station. Now, they have no idea and no intention of
6 doing that. I would like the patriotic private television channel, who
7 would like to organise televised broadcasting, be allowed to have the same
8 conditions as the B92 television station did formerly.
9 JUDGE ANTONETTI: [Interpretation] Very well. While you were
10 speaking, I was looking into it. I would like this to be reflected in the
12 As you were speaking, I noted on the screen that all we see in
13 terms of broadcasting of trials are images of courtrooms I, II, and III,
14 but, in fact, there was no image, and just a few seconds ago it appeared.
15 So is there a relation of cause and effect that suddenly the images have
17 Currently, all three courtrooms can be seen. They are broadcast,
18 but it was not the case just a little while ago. So I would like to
19 ask -- well, later I will ask the Registry to explain to me why no images
20 were being broadcast.
21 That's all I have to say with regard to that matter.
22 Now I will raise another important issue. We have quite a number
23 of topics on our agenda.
24 I don't know if you have the Rules before you, but I would like to
25 draw your attention, and also the attention of Ms. Dahl, to the provisions
1 of Rule 65 ter (H), and I will read it out slowly.
2 65 ter (H). I will now read it out: "The Pre-Trial Judge shall
3 record the points of agreement and disagreement on matters of law and
4 fact. In this connection, he or she may order the parties to file, either
5 with the Pre-Trial Judge or the Trial Chamber, written submissions."
6 And the points of agreement or disagreement can be explained in
7 brief that has already been submitted, but that can always be amended
8 since this brief is defined in 65 ter (E), (E)(i).
9 Now, why am I telling you this Mr. Seselj and Ms. Dahl? For the
10 following reasons, please listen carefully because I am going to go
11 through this slowly. I have studied the indictment and the pre-trial
12 brief and noted that, in this pre-trial brief, there are crimes that are
13 listed according to municipalities. There are a number of crimes listed
14 in the municipalities of Vukovar, Zvornik, and so on and so forth.
15 And in the indictment, as well as the pre-trial brief, now, I will
16 be very specific. For example, with regard to Bosnia-Herzegovina, there's
17 Mostar, Vocin, Bosanski Samac, Nevesinje, Zvornik; then two other
18 municipalities are mentioned: Jasko [as interpreted] and Vasinje [as
19 interpreted]. And in those municipalities, according to the indictment,
20 crimes were committed. And for the region of Sarajevo, there are several
21 places within the region. I will mention a few of them: Grbavica,
22 Ilijas, Vogosca, and others, where crimes are said to have been committed.
23 In the Republic of Croatia there is the SAO of Slavonia, Vukovar. In
24 the Republic of Serbia, there's Vojvodin with Hrtkovci.
25 Hence, the Prosecution, in order to prove that these crimes were
1 committed, will have to call witnesses and this will take time. And on
2 the basis of my experience within this Tribunal, I believe that I am a
3 Judge within the Tribunal who has the most experience in presiding or
4 taking part in hearings, and I have learned from my experience that 80 per
5 cent of the time is taken by the Prosecution and also during
6 cross-examination to call victims and witnesses who can testify as to the
7 crimes. The remaining 20 per cent that are crucial moments of the trial
8 are used for witnesses relating to the direct personal responsibility of
9 the accused. So 80 per cent crime base, 20 to 30 per cent relating to the
10 responsibility of the accused.
11 And, during the stage of the trial, when the accused calls his own
12 witnesses, he will be obliged - or he's not obliged to do so, but
13 generally the accused do so - he will cite his own witnesses, crime base
14 witnesses, and that takes time. Therefore, if, pursuant to the Rules, an
15 accused recognises that crimes have been committed in a certain
16 municipality, the fact that he says, "Yes," for example, "in Vukovar,
17 crimes were committed," that does not mean that the accused is responsible
18 for those crimes. These are two different things. Responsibility must be
20 In our current mechanism, we will have to bring in witnesses who
21 will testify about Vukovar. That will take time, and, in fact, that time
22 could be used by the Prosecution and the accused to took into the issues
23 relating to responsibility.
24 So this is what I am submitting to you. I do not have authority
25 in this regard; but if the Prosecutor and the accused reach an agreement,
1 in which they agree that in such-and-such a place there were destructions
2 and other things, that does not mean that it does not imply recognition of
3 guilt. There are certain facts that respond to reality.
4 Take an example. If a car is stopped for speeding, one notes that
5 there was a crime of speeding. That's a fact. Who was driving the car,
6 that's another issue.
7 So, perhaps, this image can demonstrate to you that quite a bit of
8 time can be gained if an agreement is reached between the Prosecution and
9 the accused on factual or legal matters. And should such agreement be
10 reached, there is no longer any reason for the Prosecutor to call
11 witnesses to prove certain facts that are recognised by the accused. And
12 again, "recognised" does not mean that he recognises that he is
13 responsible for those incidents, but simply that he recognises that in
14 such-and-such a village there was a destruction, a certain person was
15 mistreated, which does not amount to saying that it was the fault of the
17 So I am raising this issue based on my experience, where I've
18 noted that we spend a great deal of time calling witnesses and victims to
19 describe to us what was inflicted on certain victims, sometimes without
20 being able to say who did what, and so on and so forth.
21 So, against this backdrop, the time allotted to the trial is
22 mainly -- or could mainly be dedicated to assessing responsibility, which
23 is really of the essence as to the merits of the case.
24 Now, the Rules provide for this, a provision that is rarely
25 applied. Perhaps it is not well-understood, or perhaps the Pre-Trial
1 Judges just don't think of it or don't realise the impact it might have in
2 terms of saving time, but I find it of great interest.
3 Again, it will not have any real consequences with regard to
4 responsibility, which is a totally different issue.
5 Moreover, if Mr. Seselj feels that in the indictment there are
6 passages relating to or there are passages relating to the municipalities
7 and you feel it's not necessary to call witnesses because you don't
8 challenge the fact that such-and-such a witness was arrested and detained,
9 there, again, the Prosecutor doesn't need to call those witnesses.
10 And, then, there's yet another problem, the fact that you have
11 challenged the testimony of certain witnesses in your motion based on Rule
12 77. Perhaps, there are some witnesses that would fall within the scope of
13 your motion; and as the Chamber had decided you will be allowed to ask
14 them questions in this regard when they appear before us, and perhaps
15 there will be witnesses who you will find useful and that is not a
16 problem, but there may be others who have nothing to do with your motion,
17 and then you could perhaps say, Well, it's not actually necessary to call
18 those witnesses.
19 So I would indicate to you that it is my duty to bring your
20 attention to these issues. These are things foreseen by the Rules.
21 Mr. Seselj, I would like to know your opinion.
22 THE ACCUSED SESELJ: [Interpretation] I completely agree with that,
23 Your Honour, Judge. I showed a constructiveness in 2003 with respect to
24 that. We're now facing two problems.
25 First of all, we're entering the proceedings in a chaotic state.
1 The indictment was shortened last year, but the Prosecution did not reduce
2 the number of either witnesses or exhibits. The crime base for Vocin was
3 thrown out, the whole the western Slavonia, Samac, Brcko, Bijeljina, and
4 several other places in Herzegovina, and that was thrown out of the
5 indictment. However, on the list, we have all the witnesses that were
6 planned to testify about the crime base in those same places, in those
7 same locations, and all the exhibits remain as well.
8 What does that mean then? Why was the indictment reduced and
9 shortened? On the one hand, the Prosecution intends to prove the crime
10 base. On the other hand, there are no specific counts about those places
11 in the indictment. So this is the situation that hasn't been resolved,
12 and I've been pointing to that for a -- for a long time now. And the
13 pre-trial brief of the Prosecution has not been aligned with the
14 indictment either. Now, why is that still the case?
15 I appeal, Judge, that you don't allow a trial -- the trial to
16 begin without clearly up these procedural issues. And since you have
17 another month and a half before you or a little longer than one month,
18 then I expect you to do that.
19 Secondly, I was trial -- I was ready to discuss matters with the
20 Prosecution in 2003 as offered by the main Prosecutor, by Carla Del Ponte.
21 The only reason -- the own condition I laid down was my legal advisors be
22 present. We could have gone through the indictment, the text of the
23 indictment at that time, to determine what things were not challenged or
24 what were challenge. I'm ready to do that today as well, on the condition
25 that my legal advisors be present and one investigator per each of the
1 crime base places; one for Vukovar, one for Vojvodina and Hrtkovci, one
2 for Zvornik and one for Sarajevo, so the locations in Sarajevo, and one
3 for Herzegovina and all the locations there.
4 I am ready to have that detailed discussion to see what can be
5 agreed and what can not be agreed, and that would save a lot of resources
6 to the Tribunal and the OTP and would probably reduce the intensity of
7 your intentions to bring in most of the witnesses with pre-written
8 testimonies which enter into the documents. This is quite unlawful and
9 will lead to an imbalance of justice in these proceedings, so I am now
10 going to show my good well to prevent this from happening, witnesses to be
11 brought in viva voce and my personal responsibility or lack of
12 responsibility, without losing our way in immaterial issues.
13 Now, if they continue to insist, then I will hear witnesses with
14 the same intensity that testified to crime bases where I'm intimately
15 quite conscious of the fact that a crime existed and those witnesses who
16 falsely accuse me and where I have nothing to do with the crimes
17 committed. So there is still goodwill on my part but under those
18 conditions. The Prosecution in 2003, in principle, accepted this
19 discussion but did not accept having my legal advisor present and
20 attending those discussions.
21 So, once again, I'd like to reiterate and offer up my offer
22 again. We could have this discussion two or three days' time, which would
23 save me a lot of work, and it would save the Tribunal and the Prosecution
24 a lot of work, too.
25 JUDGE ANTONETTI: [Interpretation] Well, now, I've listened to you
1 with great attention, Mr. Seselj. It is true that some time ago you had
2 already said the same thing. I don't know if Mrs. Dahl had quite
3 understood the thrust of what you were saying. You had suggested to meet
4 with the Prosecutor, and I note that this never took place.
5 So what I'm going to do, I'm going to give you the floor, Mrs.
6 Dahl, and I will also render an order, quite expeditiously, not an oral
7 order given the importance of the issue, and I will refer in this order to
8 Rule 65 ter (H). I will refer to the transcript and the suggestion made
9 by Mr. Seselj and will order or invite you, urge you, to meet with the
10 accused, who, of course, will be assisted by his advisors, in order to
11 implement the relevant provisions of the Rules relating to admissions by
12 the parties regarding factual and legal matters.
13 If you could reach an agreement making it possible to avoid
14 calling a number of witnesses, as Mr. Seselj says, but I had already said
15 it beforehand, this would save time and resources for the Tribunal.
16 I must say that since we've been convening Status Conferences over
17 nine months now, Mr. Seselj has always demonstrated his willingness to
18 cooperate, and I would like to see this same willingness on the part of
19 the Prosecution.
20 On this topic, which may surprise, you - myself, I did not think
21 that Seselj would be willing to do this - so what do you have to say.
22 MS. DAHL: Well, the first response I want to make is that
23 Mr. Seselj is simply mistaken with regard to the steps taken by the
24 Prosecution in response to the decision under Rule 73 bis. The
25 Prosecution, in fact, made significant reductions in both the number of
1 exhibits and witnesses that relate to the crime bases that were removed
2 from the indictment. Consistent with the terms of the decision, there
3 remain evidence and witnesses we will tender to prove the pattern of
4 conduct related to the charges, and we are also considering further
5 reductions in the evidence related to this pattern evidence, in order to
6 wisely and efficiently use the time that has been allocated to the
7 Prosecution for the presentation of the case.
8 Mr. Seselj's objection to receiving notice in the pre-trial brief
9 of the contours of the evidence has been recently addressed by a decision
10 from the Chamber, and I trust that that settles the matter. The point is
11 to give him fair notice of the case, not to lard up the Prosecution's
12 evidence with material that has been placed outside the indictment.
13 With respect to a meeting with Mr. Seselj, as I said the last
14 time, this was brought up at a Status Conference. We welcome that
15 opportunity under appropriate conditions. I invited Mr. Seselj to submit
16 a letter to me indicating what he desired. I received no further
17 correspondence from him on that matter and considered it settled.
18 We would be prepared, of course, to meet to see if there are areas
19 of agreement. I would note, however, that there are several motions
20 concerning adjudicated facts that he has opposed. Those are long lists of
21 specific factual points that are ripe for discussion. He failed to
22 respond to a letter putting four questions to him. As required by the
23 pre-trial brief rules, we did include that correspondence to indicate our
24 attempt to seek agreement.
25 If Mr. Seselj is willing to propose what he is prepared to discuss
1 and what he is prepared to admit and who we want -- he wants to attend
2 with him, we will consider his request very carefully and determine what
3 the appropriate steps are.
4 JUDGE ANTONETTI: [Interpretation] I take good note of your
5 willingness to reach an agreement. I think it is undoubtedly necessary
6 that you meet. It is really indispensable, which does not mean that
7 Mr. Seselj or you will agree, but it's always a possibility. An agreement
8 may be reached. You might as well try. It may or may not be productive,
9 but at least everyone will have done his or her utmost.
10 It is true that Mr. Seselj has expressed opposition to certain
11 points; but, perhaps, if this kind of discussion had taken place viva
12 voce, perhaps some agreement might have been reached. So I'm hopeful that
13 a solution can be found.
14 Now with regard to a detail, I will give the floor again to Mr.
15 Seselj. Regarding 73 bis, Mr. Seselj, and concerning the municipalities
16 of Brcko, Bijeljina, Bosanski Samac, the Chamber handed down a ruling on
17 the 20th of September, 2007. I'm not sure that you've already received a
18 translation in your language, but I will read to you some of the points.
19 I don't think had you have the translation yet.
20 It was said that the Pre-Trial Judge considers that the
21 disposition of the decision was clearly formulated and there is nothing
22 equivocal and resumes a decision of the Chamber, in particular paragraph
23 28, ordering that the Prosecution would not present any crime base motives
24 in Bosanski Samac, in oriental Slavonia, in Eastern Slavonia. The
25 Prosecution may put some elements which should not concern Western
1 Slavonia for crimes in Western Slavonia, and it doesn't have a bearing on
2 the indicted facts.
3 This means, in fact, that the Prosecution will not call its
4 witnesses; but if the Prosecution wants to establish the scale which is
5 connected with the notion of joint criminal enterprise, then the Chamber,
6 one, allows Prosecution to bring in evidence even if the municipality is
7 not directly concerned. So that's what it meant.
8 So the best is for you to read the decision, which will be
9 translated for you in your own language, where all this is explained, but
10 this particular aspect is minimal as compared to what I have said a while
11 ago on the principle fact; that if crimes have been committed in a
12 municipality, and that if there is who issue take been the existence of
13 these crimes without drawing any responsibility of the accused on these
14 matters, then there may be some facts which are admitted and recognised by
15 both parties, then this would then avoid the bringing of witnesses on
16 these matters.
17 But you have to discuss these matters between yourselves. If you
18 reach an agreement, all the better; and if you have no agreement, I will
19 have done my utmost to find a solution.
20 This is what I wanted to tell you. I'm therefore going to make an
21 order, very quickly, inviting you to get together and to find common
23 Yes, Mr. Seselj?
24 THE ACCUSED SESELJ: [Interpretation] Judge, I still have not
25 received your decision of the 20th of September, but there are some
1 indisputable facts here, and Mrs. Dahl has not put forward the true
2 information concerning these facts. Not a single exhibit or piece of
3 evidence, according to the list I was given, has been removed, except for
4 exhibits removed which were duplicates. Up to now, I have received
5 exhibits up to number 2.500. Only duplicates have been removed, and I
6 have found some more myself. This is the fifth time I have received
7 Borislav Jovic's book, the fifth time.
8 Secondly, last year, there were 105 witnesses on the list. Now
9 there are 106. So which crime base witness has been removed from the
10 list? Not a single one concerning these places. They are all still on
11 the list. They will tell the story of what happened to them personally,
12 but they never saw me in their lives, nor can they bring me into any kind
13 of connection with what happened to them. They cannot establish any kind
14 of link.
15 You can do whatever you like in this respect. I have not asked
16 the Prosecution for anything.
17 As regards a discussion concerning agreed facts, I have expressed
18 my goodwill, and I will not take any further steps. The initiative came
19 from Carla Del Ponte some time ago, but at the time the conditions did not
20 suit her, the conditions of meeting with my legal collaborators for the
21 five locations in question.
22 I am being tried here for crimes committed in three different
23 states, and I have reduced this to five investigators.
24 An additional condition I put is that everything be recorded on
25 video camera and that the recording be handed to me at the end of the
1 talks, and this is something that usually happens when accused are being
3 I am expressing my goodwill and my readiness to meet; but if this
4 means nothing to them, then there will be no meeting. But now Ms. Dahl
5 says that I am challenging adjudicated facts. Well, of course, I'm
6 challenging them because they have not been adjudicate correctly. They
7 are untrue. Even something that has been adjudicated in other cases may
8 go challenged, both in the court and in legal theory, and in publications
9 in general. Nobody can prevent me from doing this.
10 But mark this: I am willing to go through the entire indictment
11 even to correct the incorrect biographical data in the preamble. Even
12 there, there are errors and things that are incorrect. I can tell you
13 what they are, let alone the rest of the indictment. But I am not going
14 to move that this be done.
15 My investigators and legal advisors are arriving in ten days and
16 we can have this finished by mid-October, and then you can have a clearer
17 situation. If they want me to file a written motion, that will never
19 JUDGE ANTONETTI: [Interpretation] Very well. So, as I just said,
20 I will make an order very soon on this matter.
21 I would now like to talk about another problem with the
22 Prosecution. I would like to discuss this matter.
23 Following this 65 ter (H) Rule, now I'm asking the Prosecutor.
24 Mrs. Dahl, in the indictment, the joint criminal enterprise is mentioned;
25 and, in this joint criminal enterprise, people are mentioned who were part
1 of this criminal enterprise: Mr. Seselj, Mr. Milosevic, Mr. Karadzic, and
2 so on and so forth. This is in the indictment.
3 I have perused the pre-trial brief, and I have read in there that
4 you expound the goal of the joint criminal enterprise, which was to expel
5 the -- by all means and certain crimes this population, and you indicate
6 in your pre-trial brief the role of Mr. Seselj in three segments: The
7 propaganda role, the recruitment role, and so on. This pre-trial is
8 drafted in that way.
9 But I'm wondering, and I think my colleagues would also wonder,
10 this joint criminal enterprise which is alleged in the indictment and
11 which concerns persons, individuals, one of whom is present now, this
12 enterprise, it has an origin? Did they meet? What is the connection
13 between these people? And I don't find that in the indictment, and I
14 don't find it in the [indiscernible]. There is a creation of an entity by
15 individuals who have a goal, who meet, who discuss, who make plans, and
16 who implement a strategy, after which people implement them.
17 It seems that in the indictment and into the pre-trial brief
18 everything which is done before does not appear. What took place before
19 is not mentioned. One gets the impression that one takes stock of the
20 fact that there is an enterprise and one examines what it has done, while
21 even before reaching this stage one should wonder whether the enterprise
22 in question exists and what are its ties between those which are mentioned
23 in the indictment: Mr. Babic, Mr. Karadzic, Mr. Seselj, Mr. Milosevic,
24 and so on.
25 So, Mrs. Dahl, do you think that within the framework, when you
1 will present your witnesses, are you going to answer this question, or was
2 this never envisaged starting from the idea that for you this enterprise
3 is a reality and there is no reason to discuss it?
4 MS. DAHL: We will lead evidence to establish the entity. I would
5 not presume it's existence. And if the Chamber is desiring a more full
6 explication of the existence and actions -- existence of the JCE and
7 actions of members, that can be prepared, of course; but it's fully within
8 the evidence and the witness summaries that we've presented so far.
9 JUDGE ANTONETTI: [Interpretation] Yes. On this topic, Mr. Seselj,
10 do you have a point of your comments to make?
11 THE ACCUSED SESELJ: [Interpretation] Yes, I do, Judge. Evidently
12 there is a prejudice here coming in from other cases. Before, this
13 Tribunal only Serbs have been accused of participating in a joint criminal
14 enterprise. There are also attempts to introduce this into the indictment
15 against Limaj and others and it has been rejected, and now there is an
16 attempt to introduce this into the indictment against Gotovina and others.
17 Nowhere else did it exist.
18 I am going to challenge the very concept of a joint criminal
19 enterprise, then I will challenge its existence on the Serb side, and,
20 finally, I will challenge any participation by me in a joint criminal
21 enterprise. I have never seen a shred of evidence that I participated in
22 a joint criminal enterprise, especially with people with whom throughout
23 the war I was in a fierce conflict: Veljko Kadijevic, Blagoje Adzic,
24 Aleksandar Vasiljevic, to mention but a few.
25 Another thing that's happening is the following: The structure of
1 this so-called joint criminal enterprise changes from case to case. In my
2 indictment, a certain number of people have been listed in the Milosevic
3 indictment, a second set of persons in a third indictment, a third set of
4 persons. Some names reappear, but new names also appear in one case which
5 did not appear in another. This is also a very chaotic situation created
6 on purpose, because joint criminal enterprise is something applied
7 whenever there is no concrete evidence against an accused.
8 There is no evidence that members of the Serb Radical Party
9 committed certain crimes in certain locations, so then the Prosecution
10 says, Well, the Serbian forces permitted these crimes; and, among them,
11 there were members of the Serb Radical Party. So this makes me allegedly
12 responsible for the crimes because allegedly I was in a joint criminal
13 enterprise. This cannot hold water.
14 The Prosecution has to establish a nexus, a link, between me and a
15 particular crime that took place. Here, hate speech and joint criminal
16 enterprise are being seen as a form of commission. However, this is not
17 provided for in the Statute. By the Prosecution, these are characterised
18 as separate crimes. Just simply participating in a JCE, according to the
19 Prosecution, is a crime subject to sanctions, regardless of whether there
20 is a responsibility for any of the individual crimes.
21 In my case, a new crime has been invented, the crime of hate
22 speech. This has never existed in international common law, and now
23 suddenly it's a form of commission. I am using hate speech, and this is
24 motivating other people to commit crimes.
25 If I say some things now and this motivates someone to murder his
1 wife, for example, oh, that's just ridiculous. That's why in a
2 professional and legal since I find this indictment very -- it's a treat
3 to me.
4 Where does this crime of hate speech come from? The Prosecution
5 relies on the precedent of the International Tribunal for Rwanda.
6 However, those crimes took place after the events covered by my
7 indictment, so they could cannot be used -- these precedents cannot be
8 used in my case. In Rwanda, people have been accused and punished for
9 genocide because they publicly called for genocide. It wasn't just hate
10 speech, but they had "dolus specialis" proved against them, because they
11 explicitly called for genocide.
12 And "dolus specialis" is required is only in the case of genocide.
13 They say that it has been proved that they premeditated genocide and had
14 the intention to commit genocide, but "dolus specialis" cannot be ascribed
15 to me by my means. All I can be accused of is either in committing a
16 crime or inciting others to commit crimes. You cannot say that just
17 because somebody listened to a speech I made on the -- on behalf of my
18 party, in the name of my party, was motivated to commit a crime, or you
19 cannot say that I ordered crimes.
20 We are meeting here or coming across very interesting legal
21 issues. The Prosecution cannot prove the existence of a joint criminal
22 enterprise because it did not exist; but even if it had existed by any
23 chance, they cannot prove that I participated in it. However, they feel
24 they are not duty-bound to produce evidence, to prove it. They say it
25 existed, and we are two conclude that everything that happened, happened
1 as part of a joint criminal enterprise.
2 In the four hours you put at my disposal, I intend to speak for at
3 least an hour about joint criminal enterprise, because I feel this is the
4 most important issue. If this is not proved, nothing else will be proved.
5 Nothing else will remain, but the Prosecution is not exerting any effort
6 to prove this. They haven't even succeeded in convincing you that such a
7 thing existed and that I took part in it. They cannot convince me and how
8 can they convince the professional public?
9 You have raised a very serious issue which should be resolved
10 before the Status Conference, so I propose that you order the Prosecution
11 to explain in writing their understanding of the essence of a joint
12 criminal enterprise, its existence on the Serb example, and my possible
13 participation in it.
14 Some three years ago, I submitted to the Prosecution, as part of
15 the project of my special defence, a treaties, a study on my opposition to
16 the concept of a joint criminal enterprise. I assume this still has not
17 been translated into English. It is about 150 pages. This study exists
18 in the Prosecution. I don't know if you have seen it. But in accordance
19 with the Rules of Procedure and Evidence, I submitted it only to them.
20 They have received it, but they don't want to translate it. They stick
21 labels on me. The say it is irrelevant, it's vague, and so on and so
22 forth, but it will come back to them like a boomerang.
23 So the same applies to hate speech. I think I have submitted
24 three studies. These have not been translated either. All right. They
25 will be translated very patiently here in the courtroom when I am
1 questioning the Prosecution witnesses.
2 JUDGE ANTONETTI: [Interpretation] Yes, Mr. Seselj, what you've
3 just said now enables me to link with Rule 67. Now you've just said
4 something which is quite important, and this is line 16 of page 31. You
5 say that you sent to the Prosecution 150 pages on the joint criminal
6 enterprise, and that the Prosecution did not have them translated. You're
7 asking whether the Chamber was informed. No, the Chamber was not informed
8 or served. This is a procedure between the parties. The Chamber is not
9 involved in this procedure of Rule 67.
10 What I can say is this: As from September 2003 to the 7th of
11 June, 2006, you filed 15 documents under 67(A)(i). On the 7th of
12 November, 2006, Prosecution made observations or comments, and this is
13 somewhat the Prosecution said:
14 "The documents 67(A) do not contain any indication concerning
15 witnesses which the accused intends to call according to Rule 67(A)(i)(b).
16 "Secondly, documents under 67(A) are not specific Defence notices,
17 but they constitute quasi-judicial or factual things, and, essentially,
18 are speeches against the Prosecution, a considerable wealth of
19 conversations during the years."
20 Documents 67(A) are more characteristic of a pre-trial brief which
21 are submitted. And for all these reasons the Prosecution did not consider
22 it necessary to have all the documents 67(A) translated and to notify the
23 witness [as interpreted] which witnesses it intends to call to refute any
24 specific means.
25 On the 12th of June, 2006, you replied to this yourself,
1 Mr. Seselj, and you said this, I summarise: It is for you to decide on
2 the type and the specifications of your special exhibits, special
3 defences, and the Prosecution will have to see what it intends to do. It
4 does not intend to file specific evidence to refute the arguments of the
5 accused. And you wrote that the fact that the Prosecution refused to have
6 their documents translated under 67(A) blocked the special -- special
7 defences. You asked the question how the -- how the Trial Chamber will be
8 able to rule on your responsibility if this special defence is not
9 translated, and you ask that either the Registry or the Prosecution would
10 have these documents translated.
11 This is the chronology, and I see that there is something which
12 blocks, there is a blockage. You have indicated to the Prosecution,
13 "Those are my defences," and so on, and the Prosecution answers by saying
14 that it will not translate them because they do not seem in its views to
15 correspond to special defences. Therefore the Prosecution does not tell
16 you which witnesses it intends to refute. So that is the point we
18 All right. I could read to you Rule 67, which you know as well as
19 I do. All I can say, and then I will now give you the floor, is that at
20 this specific stage of the procedure the Chamber is not competent to rule
21 on the special defences, but the Rules enables, allows the accused to let
22 the Prosecution know what are his defences. The accused may state, say,
23 "I haven't seen what has been translated. There is a problem." A while
24 ago, Mr. Seselj showed there was a question of the dolus specialis
25 concerning the joint criminal enterprise, and, therefore, he took issue
1 with this argument. He may have wanted to know what were the witnesses
2 you intended to call to contradict this document. Since you did not
3 answer, he cannot do anything.
4 So all this leads me to say that getting together, which will soon
5 take place, will perhaps enable both parties to get rid of some
6 ambiguities or misunderstandings.
7 Mr. Seselj, you wanted the floor again?
8 THE ACCUSED SESELJ: [Interpretation] Judge, should a lot of work
9 on my part and the efforts made by my associates in preparing this report
10 for special defence be just thrown aside with a few sentences without
11 having read the actual text. Rule 67(A)(i)(b) is clear: "Any special
12 defence," it says. And I am notifying the Prosecutor presenting this. A
13 special defence is special in relation to all the other general forms of
14 defence, and here we provide for the possibility of the existence of
15 witnesses and addresses of witnesses, but that is not the sole evidence in
16 these proceedings.
17 You have material evidence, for instance. There are theoretical
18 evidence. There is theoretical evidence, theoretical arguments in favour
19 of something. I can bring in a thousand witnesses who are going to show
20 that the Roman Popes Benedict XVI, John Paul II are the main culprits for
21 the difficulties in the Balkans, and all the live authors of books that I
22 quoted in the list that I attach. So that is the thesis of my defence.
23 A joint criminal enterprise did exist but on the opposite side, on
24 the side of the Vatican, on the side of America, Germany, the NATO Pact,
25 and the European Union. That is where the joint criminal enterprise lies,
1 with its intention to break up Yugoslavia, to cause a war, to station NATO
2 Pact troops in the territory, to cause a civil war, and to maim Serbia.
3 Why to maim Serbia? Because we Serbs are Russians in small. We are close
4 to them ethnically, culturally. We are Russia's advisors. And when
5 Russia is weak, they can destroy Serbia, because everybody knew that
6 Russia can't stay weak forever.
7 So that's my thesis. So they defined a Serb joint criminal
8 enterprise in my place therein. I present a concrete thesis according to
9 which the Pope is the leader of the Western joint criminal enterprise
10 against the Serb people, and that he is responsible for all the crimes.
11 And I set out my views in 4.000 pages. I written and published four books
12 about this subject, because I do nothing without a purpose. Everything I
13 do will be published one day.
14 Next, there are three reports on hate speech, where I prove that
15 the western statesmen, the statesmen of the west, the Croatian and Muslim
16 politicians, have many worse examples of anti-Serb hatreds that they
17 uttered in public than anything ascribed to me. So is that a form of
18 special defence? Of course, it is. It is truly a form of special defence
19 by concrete quotations, which I can support by documents, and I will
20 present thousands of documents to support my thesis, if necessary. They
21 haven't asked me to do so; but, as soon as they do, I'll supply them with
22 those documents.
23 Then we have a report and treatise on joint criminal enterprise,
24 by which an analysis -- by analysing my speeches, when I sent the Serb
25 radical volunteers to war, I drew attention to a respect for international
1 war law, humane treatment for prisoners of war, the civilians of the
2 opposite side. I prohibited theft. I prohibited destruction, as far as
3 my political authority could allow me to do so. I did not have any legal
4 authority or the authority embedded in power.
5 So all this is contained in those treaties, and I think I have
6 three of them there by which I prove that certain witnesses from the
7 Prosecution; that is to say, people that are on the list of Prosecution
8 witnesses are those whom I was sure would be brought in because they were
9 paid witnesses in other trials, let alone the fact that they were one time
10 spies of Serb intelligence services, spies of international intelligence
12 I can prove this by bringing documents in from the Serb security
13 service. I don't want to name any names, otherwise Mrs. Dahl is going to
14 jump on her feet, but all this exists in all those reports.
15 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, as the Pre-Trial
16 Judge, I see that there's a problem under Rule 67. You have disclosed to
17 the Defence a number of documents. Now Mr. Seselj has described his
18 position. I see that the Prosecution hasn't made any progress in this
20 So what I am announcing now is that I shall also issue an order
21 inviting you within the next 30 days, so I'm giving you one month, asking
22 you to address to the Prosecution a new version, a consolidated version of
23 your special defence, please. And you will also submit a copy to the
24 Trial Chamber. I would ask you to comply with the practical directive on
25 number of pages and number of words, in order to avoid that you would be
1 in the classical case where the Prosecution will say, No, it doesn't
2 comply with the directive; therefore, we don't have to take it into
4 So please be concise. And if there are elements that you can't
5 fit into those 3.000 words, then put them as an annex to your notification
6 so that the notification that you address to the Prosecution, with a copy
7 to the Chamber, will be easily translated into English because, of course,
8 it will be written in your language, and this document really should be
10 And I would also urge you, before submitting this document, I
11 would invite you to read Article 31 of the Statute of the International
12 Criminal Court. Article 31 of the Statute of the ICC foresees a number of
13 special defence pleas, and, perhaps, your notification could draw
14 inspiration from that Article. You could look at the grounds that are
15 cited in that Article. This could be a way of moving forward since we are
16 stuck right now, and we need to find ways to overcome this obstacle,
17 either by meeting or, as I said, I will render an order requesting that
18 within the next 30 days you file a consolidated notification.
19 I would ask you to do this in light of Article 31 of the Statute
20 of the ICC, because this Tribunal doesn't have any case law with regard to
21 the special defence, please.
22 Now, we need to take a break for 20 minutes for technical
23 reasons,, and so we will meet again in 20 minutes.
24 Thank you.
25 --- Recess taken at 10.36 a.m.
1 --- On resuming at 10.56 a.m.
2 JUDGE ANTONETTI: [Interpretation] Very well. We shall now resume,
3 and I will raise another important topic now, Mr. Seselj, the topic of
4 your advisors and your assistants and also the funding of your defence.
5 As you know, a ruling was already handed down on the 30th of July,
6 2007, but I think there are still some residual problems to be addressed.
7 The ruling handed down on the 30th of July, 2007 foresees two
8 prior conditions that must be met for the decision to be implemented.
9 First of all, the burden of proof of his indigence, his lack of means,
10 rests with the accused; and, secondly, one or several assistants must
11 fulfil some requirements provided for by the Rules.
12 Now, as to proving his indigence or lack of means, Mr. Seselj, I
13 have already said this, but I will repeat it. You need to have
14 discussions with the Registry and provide the Registry with the necessary
15 statements that will allow the Registry to determine whether or not you
16 do, in fact, lack the necessary means. I am recalling this. It has
17 already been said.
18 Since these are contacts you must have with the Registry, I will
19 not be involved in that.
20 As to the qualifications of an assistant, I know recently you met
21 with the Registry, and I'd like to reassure you with regard to some fears
22 that you might have. The very fact that you are being granted legal aid,
23 well, as you know, the funds -- well, I don't print the money. These are
24 funds that come from the United Nations and are, therefore, public funds,
25 and the way in which expenditures are made has to comply with certain
1 administrative procedures, budgeting procedures. And in the context of
2 such procedures, to avoid embezzlement, misappropriation of funds, graft,
3 and so on, it is necessary for those who take part in this mechanism
4 dealing with these funds to provide certain assurances, certain guarantees
5 with regard to the fact that these funds will not be misappropriated to
6 illegal ends.
7 The assistant mentioned in the ruling, what exactly would this
8 assistant do? Well, we could see things in the following way: You have a
9 principal assistant, Mr. Zoran Krasic, who would help you in various
10 briefs and motions; And, on the other hand, you have other assistants who
11 are not your principal or main assistant but secondary assistants.
12 I seem to understand from what you said last time that Mr. Slavko
13 Jerkovic, is a lawyer, a member of the Bar Association of Belgrade.
14 Jerkovic is speed J-E-R-K-O-V-I-C.
15 So I seem to have understood that this Mr. Jerkovic is a lawyer;
16 hence, it would be sufficient to appoint Mr. Jerkovic as an assistant,
17 under Rule 45 of the rules, who would be the person fulfilling the
18 requirements of Rule 45.
19 So that's the current situation. To date, Mr. Seselj, no progress
20 has been made in this realm, and I would like you to give me your opinion
21 and tell me what difficulties you're encountering in this regard.
22 THE ACCUSED SESELJ: [Interpretation] Judge, first of all, I'd like
23 to tell you something about what you said at the end of the last session.
24 I will accept your ruling and 3.000 words within 30 days will be the
25 length of my consolidated special defence, but I'd like to draw your
1 attention to the fact that neither the instructions as to the length of
2 the submission or anything else treats this subject of special defence,
3 and that isn't regulated by the guidelines and instructions.
4 You know what I think of -- I think it is a recommendation, not a
5 legally binding act. But I will abide by the 3.000 words set strictly;
6 although, the instructions don't have anything to do with my
7 communications with the Prosecution, and I never overstepped the scope of
8 and range of time that the Prosecution has supplied me with documents;
9 although, I'll try and keep to their maximum number of pages with respect
10 to documents.
11 Now, as regards financing, the financing of the defence, I had a
12 meeting with Boris Petrov, the Chief of OLAD, and Boris Petrov confirmed
13 all my fears, in actual fact. Boris Petrov, in a way, on behalf of the
14 Registry is trying to induce discord among the members of my team, and
15 chaos. He even tried to influence me to appeal your ruling and decision,
16 which I refused to do, because I said I promised I would not appeal and I
17 would stick by that. The Registry is trying to avoid payment.
18 The question of payment is my permanent request, but it's not a
19 condition. I'm not going to say that I won't defend myself unless you
20 pay. I will defend myself alone and I will very literally stand alone
21 here, because I don't intend to spend too much time or nerves on resolving
22 this issue. My main legal advisor is Zoran Krasic; and, if my defence is,
23 indeed, financed by the International Tribunal, it has to go by Zoran
24 Krasic, because he alone knows what work the others did, and then we'll be
25 able to distribute the money on a fair basis, and he worked most.
1 And I have understood the ruse that the Registry is bent upon.
2 They would like to have Slavko Jerkovic promoted as a co-counsel in order
3 to be able to place him in disagreeable circumstances during the legal
4 proceedings; that is to say, that he doesn't know whether -- what position
5 he holds. There be no co-counsel in my trial. I am the sole Defence
6 counsel, and I cannot risk having the Trial Chamber when it's a sensitive
7 witness to say that we've decided that the accused cannot examine the
8 witness but Slavko Jerkovic his co-counsel. If that happens, I will tell
9 Slavko Jerkovic to leave the courtroom; and if that happens, then --
10 JUDGE ANTONETTI: [Interpretation] [Previous translation
11 continues]... immediately. I think there are a number of
12 misunderstandings. Fortunately, you've mentioned this, because we can
13 therefore overcome these misunderstandings.
14 First of all, your assistants will not take your place during
15 cross-examination or questions that you wish to ask. You will be the only
16 one to do so. So I have never, even for a single second, contemplated
17 that Mr. Slavko Jerkovic would take your place and ask questions in your
18 stead. So you really have nothing to fear in that regard. You will be in
19 charge of your defence.
20 And I must say that I'm not happy at all with the fact that you
21 were urged to appeal my ruling, and I will demand an explanation. That is
22 not at all how things should occur.
23 Mr. Jerkovic is one of your assistants. This team that you have
24 depends entirely on you. You will decide who is your main assistant, who
25 is secondary. That's up to you. No one is entitled to interfere. You
1 are the only one to decide on the role of each assistant. This is your
3 The only problem at that does remain, and I would ask you to think
4 about this carefully, is that the Registry wishes to be sure that the
5 funds transferred will be used appropriately. Well, the Registry wants to
6 have the name of a person who is one of your assistants in Belgrade or
7 elsewhere who, in Belgrade or elsewhere, is an accredited lawyer.
8 Now, why is this a requirement? As you know yourself, you are a
9 lawyer, a professor of law, you know this is a requirement to make sure
10 that your assistant is honourable and fulfils all necessary requirements
11 in terms of honesty.
12 Mr. Jerkovic, I believe, is a lawyer or has been a lawyer, so you
13 simply need to inform the Registry of that. Well, within your team, you
14 are the one who decides who plays what role; but, secondly, the person who
15 fulfils the requirements of Rule 45 is Mr. Jerkovic. That's really all
16 you need to do, and then there would be no more problem.
17 If Mr. Krasic were a lawyer, you could say, Well, it's Mr. Krasic.
18 Unfortunately, he does not fulfil that will requirement, so Mr. Jerkovic
19 remains. This should not be the small grain of sand that would prevent
20 you from being able to rely on people to assist you.
21 You said, "If all of this is not possible, I will assure my own
22 defence. I will defend myself alone." You've said that from the outset,
23 and I wish you to be in charge of your defence, but I also want you to
24 have assistants because there are so many documents, so much research to
25 be done, and this is required by the need for a fair trial and equal arms.
1 So what still needs to be done is to appoint Mr. Jerkovic or
2 simply tell the Registry that Mr. Jerkovic is a lawyer. That's really all
3 they want; and, once that is done, they will not be able to impede the
4 payments that I have already ruled on. It would be very unfortunate if,
5 just because of this detail, everything came to a halt, especially because
6 your fears are not founded.
7 I don't know what the Registry has told you, but what I'm saying
8 is extremely important. I say this publicly. I am a Judge. I have a
9 certain mission. And when I say to you that you will be the only one to
10 ensure your defence and ask questions, it is not at all possible in my
11 mind for anyone else to take your place.
12 And to be completely frank, Mr. Seselj, other Judges shall be
13 appointed. Once this is done, I will meet with them, and I will say to
14 them, as I have said to you, that the Status Conferences set up a
15 procedure that made it probable to settle a great many problems. And even
16 though you challenge the legality of the Tribunal, you are ensuring your
17 defence or doing your work. No insults have been exchanged. Everything
18 has been going very smoothly.
19 I will say to them that, if one considers appointing a standby
20 lawyer or an amicus curiae, well, then I will withdraw from the meetings,
21 because, in my mind, when I accepted to be the Pre-Trial Judge and agreed
22 to provide the trial, I believe you are quite able to ensure your own
23 defence and that there is no need to impose a lawyer, unless you were to
24 request it, of course.
25 So you may have certain fears, but I can reassure you that you
1 will be in charge of your own defence. The only minor problems that still
2 needs to be resolved is that you need to inform the Registry, unless they
3 know it. I really don't know why they are demanding this. It's almost as
4 if you're deliberately trying to obstruct this trial. They know that
5 Mr. Jerkovic is a lawyer, but they want you to specify it. I think it's
6 excessive, it's unnecessary, but why not do it?
7 So that's what I wanted to say on that topic.
8 Now, I also have another concern. Since we will be beginning
9 around early November, when do you plan to have your assistants come to
10 The Hague so that the Registry can make a plan?
11 THE ACCUSED SESELJ: [Interpretation] Judge, I never had any
12 intention to insult you, but I have to say, quite frankly now, when you
13 said, and perhaps the translation wasn't correct, perhaps I misunderstood
14 you, that lawyers can be the embodiment of honour then a smile came to my
15 face, because that isn't the case in my country and it isn't the case in
16 this International Tribunal.
17 I happen to have two lawyers on my team and one who is an
18 associate. They're not there because they're lawyers in the first place,
19 because there are very few lawyers in this big wide world that I could
20 trust and believe in. That's the kind of profession it is, and you could
21 have seen at this court that they were ready for a sum of money to work to
22 their client's detriment.
23 Now, as I say, I have two lawyers and one trainee, not because
24 they are lawyers, but they are experts and can help me significantly. But
25 my principal legal advisor is Zoran Krasic, and he is the be-all and
1 end-all of my professional team, the alpha and omega. He has to decide on
2 all matters and his integrity cannot be infringe upon.
3 I know of your standard principle, Mr. Antonetti, and his
4 integrity cannot infringed upon. I know your standard principle,
5 Mr. Antonetti, as a Judge of this Tribunal. Of course, I question and
6 challenge the legality of this Tribunal, but I never question or challenge
7 your honour and decency.
8 And at a reception the Registry, Hans Holthuis or Hans Holthuis,
9 or however his name is pronounced, said to a Serb diplomat that he was not
10 satisfied with the way you were presiding over these proceedings. I can
11 give you the name of that diplomat. He's from a Serbian Embassy. Then,
12 in an Appeals Chamber decision in the Krajisnik case, it is said that
13 apparently through your decision you solved the problem of financing.
14 This word "apparently" was used, and I don't know if you've seen that
16 I know that games are being played, and I'm quite sure that you
17 will withdraw if this trial and these proceedings are not conducted in a
18 proper manner. I'm quite sure of that. How does that help me afterwards?
19 What good does that do me? I have gained experience here over many of
20 years with quite a different manner of Judge, and I must have a firm
21 position of principle if the Trial Chamber changes, the composition of the
22 Trial Chamber changes and if you happen to leave. I have to take that
23 possibility into account as well, because anything can happen here,
24 especially when it's very important for this Tribunal to get through my
25 trial posthaste, as quickly as possible.
1 And I'll give you another piece of information. Last year, the
2 Trial Chamber had planned out of a total of 105 witnesses to have 92 viva
3 voce witnesses, last year, that is; whereas, this year the Prosecution, in
4 a submission sent in the beginning of July or August this year, says that
5 for all the witnesses it's going to ask for written statements to be
6 included as exhibits in the list and filed. So it depends on how -- what
7 you're going to expect. So anything can happen here, but I must prevent
8 myself from falling into any of those traps.
9 JUDGE ANTONETTI: [Interpretation] [Previous translation
10 continues] ... on this last point, which you have expressed. There also I
11 have to reassure you. I see that you are very worried by the filing of
12 written statements, so I will recap. I'm obliged to recap.
13 When there is a viva voce witness who comes, the written statement
14 is not admitted because there will be cross-examination. I speak under
15 the control of Mrs. Dahl who will confirm what I have you've just been
16 saying. So there, there is no statement.
17 Secondly, those witnesses under 92 ter Rule, such a witness, there
18 are two different moments: First of all, the written statement which may
19 be admitted at the end of the evidence; and, then, there is the
20 cross-examination of the witness. So when you have a 92 ter procedure,
21 you may cross-examine the witness, and it is possible that the Chamber may
22 decide to admit or not to admit the written statement.
23 Third category of written statement, the 92 bis statements. 92
24 bis statements is within a certain specific framework, as is said in this
25 Rule. And in any case, 92 bis statements have to corroborate elements
1 which have -- evidence elements which have already been collected.
2 Therefore, there shall not be a 92 bis with a witness who would give
3 evidence on your direct liability.
4 This is not envisaged at all, except in the case where there would
5 already be a viva voce witness who would come and say something about
6 elements concerning your direct liability, then a second witness, and then
7 a third witness would say the same things, in which case the Prosecution
8 would request the admittance of these documents in the file. It's
9 corroborating evidence. It's not adding to the evidence.
10 So those statements which for you constitute a problem are those
11 statements which exist by the situation in which the persons concerned
12 are -- have died, are deceased. And, in that case, it is 92 quater which
13 applies. The person is deceased. The Prosecution considers that in the
14 interests of justice the statement has to be admitted or filed; and, in
15 that case, a motion may be filed. Defence states its own comments. The
16 Chamber makes a decision.
17 But I would like you to notice paragraph (B) of 92 ter. I will
18 read it slowly: "If the evidence goes to proof of acts and conduct of an
19 accused as charged in the indictment, this may be an a factor against the
20 admission of such evidence or that part of it."
21 This means that in the case when Prosecution would only have a
22 written statement from a deceased person who could question what the
23 accused says, in that case the Rules indicates to the Judge that if it has
24 to do with the acts and behaviour of the accused, the request may be
25 rejected because this could be a reason against admitting the statement.
1 This is, of course, following the logic of Article 92 bis.
2 Now, I know that you have some concerns, some fears that many
3 times you discussed this matter, and I'm trying at my own level to tell
4 you what is the applicable law, what is the case law which applies, how
5 the Judges appreciate and consider the application of this Rule, and how
6 the Prosecution uses it. There are rules. The Prosecution also abides by
8 Remember that I told you last time that from my own point of view
9 we have a triangle relationship. We have the viva voce witness, high
10 priority; secondly, a 92 ter witness; and, in the end, a 92 bis, if it is
11 corroborating the evidence, or 92 quater in the case where it doesn't go
12 to the acts and behaviour of the accused. Because if it has to do with
13 the acts and behaviour of the accused, the Chamber then has to see whether
14 it accepts wholly or partly or whether it rejects the evidence in
16 Therefore, all this for the moment is quite theoretical since I
17 endeavour very specially to take no admission document -- decision. I'm
18 waiting for the Chamber to be constituted, or the Bench to be formulated.
19 I will ask my colleagues before 92 bis evidence is admitted to first hear
20 viva voce witnesses, so that we may see how things develop and not put the
21 cart in front of the horse.
22 First of all, viva voce witnesses; secondly, the Prosecution can
23 file a motion or can request the admission of 92 bis corroborating what
24 viva voce witnesses have said and who have been heard in the courtroom.
25 That's was we stand.
1 You have fears. I understand them. I am endeavouring to indicate
2 to you how the Chambers function.
3 I'm going to give you the floor, but there's just one point. On
4 line 8 of page 47, it was not 92 ter (B), but it was 92 ter quater (B).
5 THE ACCUSED SESELJ: [Interpretation] Judge, I am facing a real
6 danger. You have given the Prosecution only a hundred hours for the
7 presentation of their evidence; whereas, they have announced 105 or 106
8 witnesses. This rings alarm bells as far as I'm concerned, because there
9 is an enormous danger that the vast majority of these witnesses will be
10 presented with statements written by the Prosecution for them, admitted
11 directly into the record, and this is contrary to both continental and
12 Anglo-Saxon law. I have not found a single state in this entire world
13 where such a procedure is permissible. It cannot be done in France, in
14 Serbia, in England, or anywhere else.
15 Furthermore --
16 JUDGE ANTONETTI: [Interpretation] Wait a second, Mr. Seselj. You
17 are a professor of law, and I know that you are perfectly qualified in
18 procedural matters. You've just said something; and listening to you and
19 looking the transcript in English, I have to correct one point. It is
20 true that I said, last Status Conference, that the Prosecution, but I had
21 use the conditionable tense, might have, may have a hundred hours, basing
22 myself on the fact that the Chamber who had started the trial had decided,
23 if I remember, 80 hours. But I have to say that it is the Chamber or
24 Judge who will fix the date -- on the Pre-Trial Conference will fix the
1 I have taken the possibility of a hundred hours, but I don't what
2 my colleagues will consider. Maybe they will want to shorten, or maybe
3 they will want to add more time. I don't know. But as Pre-Trial Judge, I
4 think a hundred hours should be a satisfactory figure for everybody. I
5 had even requested Prosecution, and Prosecution did not answer my
6 request. I had requested Prosecution to give me its general planification
7 for all witnesses it intended to call.
8 Because in my case, Mrs. Dahl, you shouldn't play cat and mouse.
9 I know that the Prosecution that has within the 65 ter framework a list of
10 witnesses, but experience, and I'm speaking according to my experience,
11 shows that in this list some witnesses will not come for several reasons,
12 possible reasons. I will not enter in the debate, but I know some
13 witnesses will not come. And when I requested the Prosecution to give me
14 the scheduling of these witnesses, I wanted to have a plan, a schedule
15 which was realistic and not virtual.
16 So I wanted the Prosecution to tell me, Well, this is what is
17 going to take place. There will be 80 or 90 or a hundred witnesses, I
18 don't know, but 100 per cent sure witnesses which it would surely call or
19 92 ter or 92 bis witnesses, in such a way that I would be in a position
20 before the Pre-Trial Conference discuss the subject with my colleagues of
21 the Bench, to tell them, Well, this is what the Prosecution intends to do.
22 This general picture, I haven't got it. I requested the legal
23 officer to remind the Prosecution about my request, and I still don't have
24 the answers.
25 Therefore, Mr. Seselj, you're talking about 108 or 109 witnesses,
1 and I'm not in a position to answer anything to that because today I do
2 not know exactly how many witnesses, viva voce witnesses, will be heard,
3 how many 92 witnesses, or how many 92 bis with viva voce and the 92 ter
4 witnesses will be called. What is the -- how many witnesses of 92 quater.
5 So what is the general picture for the Prosecution's argument
6 which it wants to show with these witnesses? Because when I do have the
7 whole picture, then it will be very easy for me to say that this is a
8 witness who is coming to give evidence on Seselj's men, and I will say
9 then the Prosecution is providing four hours, five hours, six hours, I
10 don't know. And there with the general plan I may say and propose to my
11 colleagues that six hours may be too much. It should only be four hours
12 because other witnesses will come.
13 And in order to evaluate all this, I need to have a picture, a
14 global picture, a sincere and true picture. And Mrs. Dahl, today, on the
15 27th of September, I'm still waiting for it. I'm still waiting, which
16 means I mentioned a hundred hours like that without knowing exactly what
17 the real figure would be.
18 So I may understand -- I do understand that if there is an
19 agreement between two parties on certain questions, maybe some witnesses
20 won't come. Well, all the better. All the better. Maybe. I don't know.
21 But at least what was really necessary, what I wished was to have a
22 general picture from the Prosecution communicated to Mr. Seselj, and
23 everybody would know what to do.
24 So, Mrs. Dahl, do you wish to take the floor on this matter,
25 because I have spoken on this matter many times.
1 MS. DAHL: Yes, Your Honour. We have both spoken on this matter
2 many times, and what I have said previously and will reiterate today is
3 that our witness list and our estimate for time is realistic, not
5 I'm sure that the Pre-Trial Judge is not intending to impugn the
6 integrity of the Prosecution's filings in any way. I reiterated in
7 response the request from Chambers for a line-up, an estimate of the order
8 of proof that, without a firm trial date, we were not able to give
9 reasonably accurate information upon which such important and critical
10 decisions as to the amount of time for the presentation of the
11 Prosecution's case.
12 The Trial Chamber must ensure adequate time to see that justice is
13 done in the presentation of the Prosecution case, and we will endeavour
14 with this new trial date issued to give the information requested to allow
15 for a proper preliminary assessment of the duration of the case.
16 I would like to address the question of qualification of Defence
17 associates. It is not possible to waive the requirement that accredited
18 Defence associates be licensed and qualified. Defence lawyers play a
19 vital and integral role in ensuring the integrity of the proceedings.
20 That role should not be denigrated by accrediting unqualified individuals.
21 It is unwise to allow such an assault on the dignity of this
22 Tribunal. There cannot be the payment of funds from the international
23 taxpayer to unqualified persons who are not licensed to give legal advice
24 and carry with them no ethical obligations to either the accused or this
25 Tribunal. Those ethical obligations are fundamental to safeguard fair
1 play and the pursuit of justice.
2 The Appeals Chamber decision of 11 September of this year in the
3 Krajisnik case reached a contrary result on the question of payment to
4 Defence associates for individuals who choose to represent themselves.
5 Addressing the same legal question and reaching a contrary result, this
6 Chamber's decision cannot be reconciled and must be reconsidered in light
7 of the Appeals Chamber's decision in Krajisnik.
8 I also want to address the question of standby counsel. It
9 remains --
10 JUDGE ANTONETTI: [Interpretation] Yes. I stop you just now,
11 Mrs. Dahl. The decision of the Appeals Chamber, I know it just as well as
12 you do, and certainly better than you do.
13 Secondly, I have been extremely clear. Never, ever will I
14 reconsider the decision which I have made. Never. So there's no need
15 even to talk about this, discuss this.
16 Thirdly, you are for the moment stating untruths. You are talking
17 about the integrity of the assistants of Mr. Seselj, but this problem has
18 already been settled. Don't you know? Mr. Seselj had given three names
19 of three individuals to the Registrar, and among these three names were
20 the three names I mentioned to you. There was never any problem
21 therefore, so don't come back by the back door to question this.
22 For the Registry, there is no problem left. The only residual
23 problem consists of knowing among the three which is the one who would be
24 in charge of the question of the financial assistance. It has to be a
25 barrister. Among the three, Mr. Jerkovic is a barrister. Therefore, on
1 this matter, no problem.
2 You are very able, but you did not answer the question I asked,
3 and you know the Rules enable me also to sanction the Prosecution. I had
4 told you this several times. I request the Prosecution to give me its own
5 schedule for the witnesses in the trial, a sincere, candid, and truthful
6 picture. And you're telling me that you can't because you don't know the
7 date of the trial, but this has absolutely nothing to do with this.
8 First of all, the date of the opening of the trial has already
9 been fixed. It will start on the 6th of November, so there already we
10 have a date. I may understand that the following dates for the beginning
11 of the hearing of witnesses are not finally accepted or determined; but
12 despite this, what prevents you from starting with a case, a date, an
13 assumption, 1st December, 1st January, 1st February? Do tell me, "Here
14 is the number of witnesses and the time I need." What prevents you from
15 doing this? What prevents you?
16 Now, you tell me that you think Judges are ridiculous and they
17 don't understand. Tell me that you can't give this picture, the schedule,
18 because you don't know the date of the beginning of the trial. This is
19 totally impossible to understand. What I'm asking you is for a plan, a
20 schedule in which you tell me how many witnesses you intend to call and
21 for each witness how many hours will the evidence last, and that's all,
22 but for the whole of the case, because the Chamber is going to determine
23 the number of hours attributed.
24 I am not a Judge who is in the hands of the Prosecution. I am
25 strictly applying the Rules. The Rule says it is for the Chamber to
1 determine the number of witnesses and the duration of their evidence. But
2 in order to determine that, you have to supply elements. Months have gone
3 by, and I have been requesting for months to get those, this information,
4 these elements.
5 If you don't supply it, well, so bad for you. The Chamber will be
6 in a position to say that we requested and that they did not supply the
7 information, and we will decide on a certain number of hours which will be
8 fixed according to criteria which the Chamber will consider as pertinent,
9 useful. While if you were giving the whole picture as requested and the
10 time needed, Chamber would fix a duration and would be enlightened, would
11 be apprised of these matters. And I see up to now you refuse to do so.
12 MS. DAHL: Your Honour, if I may respond, please, briefly, because
13 I reject the insinuation that we are not cooperating or providing the
14 information that you request. We have provided a detailed estimate in our
15 March 2000 filing concerning our witness list. It indicates the crime
16 base, the nature of the testimony, the estimates --
17 JUDGE ANTONETTI: [Interpretation] We are not in March 2000. We
18 are in September. We are the 27th of September, 2007. We are on the 27th
19 September 2007. I need this list now because in a few days, in a few
20 weeks, the Chamber is going to decide on the duration of each evidence,
21 and I need this now.
22 MS. DAHL: I understand. The only thing that has changed is the
23 calendar. We've given you our good faith estimates. We are reviewing
24 them. I can tell you if we are going to drop witnesses, but you have
25 already had the information in front of you and which you have computed a
1 hundred hours. I am looking at how to fit the evidence into that, whether
2 to cause aspects of the case to advance or recede.
3 I am cognisant of Mr. Seselj's wish to cross-examine witnesses.
4 We have the order from the Pre-Trial Judge to recapitulate our motions
5 under 89(F), 92 bis, 92 ter, and 92 quater. As a part of that exercise,
6 we will refine the information that we have already given to Chambers, and
7 I do not, frankly, see the point of recapitulating information that is
8 already in front of the Chamber simply to place it in a different format.
9 I wanted to give the Chamber a realistic estimate of witnesses'
10 availability based on a calendar date, because I am concerned that if I
11 say someone can come on December 14th and they can't, then I will be
12 accused and sanctioned for giving you false information, and that would be
13 an absurd result. I do not think that that is the direction that this
14 Chamber is heading in.
15 I want to do my very best to give you the best estimates. And
16 when the inquiry was made to me regarding our line-up of witnesses, no
17 order had been issued to set the case for trial.
18 JUDGE ANTONETTI: [Interpretation] I know you're doing your best,
19 but perhaps there is a misunderstanding. You have a list of witnesses
20 which should have given evidence at the beginning of the trial a year ago,
21 and the President of that Chamber at the time had fixed a duration which,
22 of course, had consequences for the number of witnesses, indeed.
23 Since then new elements have cropped up which you have yourself
24 been apprised of, and the fundamental element here is that the Tribunal is
25 going to start to open, whatever happens. Willy-nilly, it will begin, and
1 it will open on the 6th of November.
2 Now, who are the witnesses who are going to give evidence? Last
3 time, the matter was discussed. I had told you that you have communicated
4 some -- you had filed some motions. I thank you for those. You did very
5 considerable work since your arrival, and I recognise that. I appreciate
6 that. You furnished a list not with the name of the witnesses but of the
7 categories of witnesses who would come, and you had started by indicating
8 that you wanted first to have the witnesses who would speak on the
9 reliability of the witnesses and according to the order of
11 I had told you that what I wanted was a change in the order of
12 witnesses. I wanted to start first by the municipalities and then passing
13 to the witnesses who would give evidence on Seselj's men, Arkan's men, and
14 so on, and Arkan we would go to the gist of the subject, the heart of the
15 subject, which is the liability of the accused so that things would be
16 clear and not at all confused. I thought we were on the same wavelength.
17 And starting from that point, since you already have your list,
18 what prevents you from telling me now that for the first municipality,
19 which you had intention to describe, I'm taking just at random now.
20 Supposing you want to speak about Bosnia-Herzegovina and crimes committed
21 in Mostar. I have witnesses, 89, 90, 91, 97, 98, 99. I'm giving figures.
22 I don't know whether these witnesses are protected or not; but even if
23 they are protected. I can mention figures which will cause no risk for
25 Normally, according to what I have perused, because you do imagine
1 that I'm working on all this, about Mostar I would therefore have seven
2 witnesses, 97, 98, 99. I see that 94 is missing on the transcript now.
3 What prevents you to tell me now that in Mostar you are going to
4 call these witnesses. Maybe that in the lot 89 or 90 will be viva voce
5 and the other 92 -- will be 92 ter. I don't know. I didn't go into these
6 details. But then after, you were to tell me Vocin, 1, 2, 29, 33, and so
7 on. And you present all this.
8 So to come back to Mostar, on the seven witnesses, maybe two will
9 give evidence viva voce or maybe three. I don't know. It's for you to
10 tell me now and not to wait the beginning of the trial, and this is what I
11 just fail to understand. I don't understand why today you are not in a
12 position to give me this programme. Because if you tell me, "We are going
13 to start with the Mostar municipality, 89, 90, 91," if you do your
14 homework, and I think you are doing it well, you have probably made
15 contact with 89, 91 witnesses to tell them, "Are you going to available,"
16 for instance, if we start with them in November." Maybe one of them may
17 way, "I can't because I'm in hospital." Another one will say, "I'm
18 travelling in South Africa." I understand such problems.
19 But, again, one has to see matters in such a way that you can
20 prepare matters, because if you don't, I don't see how you can -- I'm sure
21 you've thought about all this. And all I am asking for, personally in the
22 case of Mostar, among the seven witnesses, who will be giving evidence
23 viva voce? Who will be 92 ter? Who will be quater? Who is 92 bis? And
24 if three will be viva voce, you may tell me for 89, two hours; for 90
25 three hours; and for 91, thirty minutes, and you would do that for each
1 and every one so we would have a sum.
2 In fact, I have already made my sums by going by the list of the
3 Orie Chamber. Therefore, I can tell you how much time is needed; but
4 between the Orie Chamber and mine, many things have happened. So I don't
5 have all these elements any more, and that's why I'm asking you to give me
6 this general picture.
7 Perhaps you misunderstood me, but this is what I was trying to
8 explain to you.
9 MS. DAHL: With the entry setting the order for the case of trial,
10 I have more information available to me; yet, we still do not have a
11 date -- a firm date for the commencement of evidence. I think it is
12 realistic that we are taking the Chamber's request for information into
13 our work plan to prepare for the presentation of evidence, and I am
14 labouring to provide the information that you have requested to look at
15 how to fit a great quantity of compelling evidence into an abbreviated
16 trial schedule, particularly with a short week and a half day for
17 presentation of evidence.
18 I will continue to try to refine the information that was provided
19 to the Chamber in March 2007. That list reflects a revision and a pruning
20 of the prior witness list. We dropped more than two dozen witnesses. We
21 will continue to look at how we can present the most compelling case with
22 due regard to Mr. Seselj's desire to conduct an effective
23 cross-examination and to prepare his defence against the case.
24 JUDGE ANTONETTI: [Interpretation] Please read the transcript and
25 endeavour to understand that within a few days the Trial Chamber will have
1 to set the duration; and in order to do so, well, we need to know who the
2 witnesses of the Prosecution are, how long it is foreseen that they will
3 testify. With regard to knowing exactly how and when you can bring X, Y,
4 Z to The Hague, it's up to you. That's your realm.
5 What I have to do is determine the time allotted, and you know
6 this as well as I do. If the Trial Chamber determines a duration that you
7 do not find adequate, you will request certification for appeal. The
8 Appeals Chamber will have to hand down a ruling the Appeals Chamber will
9 examine the issue and - I say this from experience - will look to see
10 whether the Trial Chamber took into account all of the aspects, all the
11 specific aspects, and did not -- whether there was any mistake in
12 assessing all of the material.
13 But in order to avoid such mistakes, I need to have really all the
14 elements of information; otherwise, I can only take a decision has random.
15 If you're not satisfied, it will be submitted to the Appeals Chamber, and
16 the Appeals Chamber will sanction me for having made a mistake. And, of
17 course, as any Judge, I don't wish to make a mistake, and so I'm concerned
18 about these issues as of now.
19 Ms. Dahl, you haven't been here so long. You don't know how
20 Status Conferences took place in the past. They would last a couple of
21 minutes. But as far as I'm concerned, some changes have been made.
22 Reports were written on the topic, urging the Judges to play a more active
23 role in the Status Conferences, and that's what I'm trying to do. I'm
24 trying to deal with problems upstream, so that they don't arise during the
1 I'm trying to ask the Prosecution to submit to me all useful
2 information that will make it possible for the Trial Chamber to be as
3 effective as possible. I'm also trying to ensure a fair trial, the
4 equality of arms.
5 What can be said today? The accused knows that there are lists,
6 but he has no idea which witnesses will testify viva voce or under 92 ter
7 or 92 quater. He has no idea, even though he is defending himself all by
8 himself with his associates.
9 MS. DAHL: Your Honour, that is simply incorrect. He has our
10 witness list, and he also has a copy of our submission regarding the order
11 of our witnesses that we filed in response to your direction. More detail
12 than that is not required under the Rules; and as best as I can, I will
13 give you more detail, but I want to give you accurate information, not
14 speculation. I certainly want to make sure that Mr. Seselj has fair
15 notice about who's coming, when they're coming. And in the other cases,
16 the trial teams have been requested to present their line-up a month in
17 advance, two weeks in advance and things like that, so that the order of
18 witnesses has some grounding in reality.
19 The Chamber is unable to tell me today what courtroom we will be
20 in and what date we are starting on. So for me to say that Mr. X, Mr. Y,
21 or Ms. Z will be here is pure speculation.
22 JUDGE ANTONETTI: [Interpretation] I agree with you. I am not able
23 to tell you in what courtroom we will sit, nor can I tell you on what day
24 we will sit. You're perfectly right. However, what I am certain of is
25 that today I do not know the names of the first witnesses you intend to
1 call. I simply don't know. And if I were in the position of the accused,
2 well, how would I prepare myself? If the trial is supposed to start at
3 the beginning of November, how am I to prepare my cross-examination? Of
4 course, I know that there are lists of witnesses and so on, but I don't
5 know who will be called first.
6 Well, the same is true for the Trial Chamber. I don't know who
7 will appear first. I don't know what your plan is. And you spoke about
8 and month in advance. Well, it's not because some Judges go by certain
9 rules that I have to apply the same rules. Each case is very specific,
10 and there are significant differences among the different cases. This
11 case is quite particular.
12 The accused intends to ensure his own defence. There was a
13 precedent, the Milosevic trial, but there was amicus curiae, and so on.
14 So this is different, again.
15 So wanting to ensure a fair trial and equality of arms or means, I
16 want to make sure the accused have prior knowledge of the witnesses who
17 shall be called, even if though we don't know exactly on what date.
18 That's really just a secondly point, the date. What's important to know
19 is who shall be called.
20 Now, I don't want to belabour this point any further, but I wanted
21 to take note --
22 THE ACCUSED SESELJ: [Interpretation] May I be allowed to say
23 something? Judge, I have to go back to the problem of the application of
24 Rule 92 ter, 92 quater, because when you gave the floor to Mrs. Dahl on
25 that issue, she moved on to another area and then she went off in a
1 different direction.
2 Rule 92 ter and Rule 92 quater were adopted in 2006. The
3 indictment against me was raised in February 2003. The Rules of Procedure
4 and Evidence nowhere expressly deal with the question of the retroactive
5 application of one's own norms and standards. There's a legal void which
6 has to be interpreted according to international law and according to the
7 Statute of Rome and the permanent legal court which does not have voids of
8 this kind.
9 At Rule 51 -- or Article 51 of the Statute of Rome of the
10 International Criminal Code in point 4, the second sentence reads:
11 "Amendments and attachments on the Rules of Procedure and Evidence, as
12 well as provisional rules, will not have a retroactive effect to the
13 detriment of the individual under investigation or somebody who has been
14 condemned or is undergoing legal proceedings."
15 From this, I deduce that Rule 92 ter and 92 quater cannot be
16 applied to my detriment in these legal proceedings, and nobody will
17 convince me that it is not to my detriment. It is certainly to my
18 detriment if I cannot attend the examination-in-chief and so on, and if
19 somebody accepts the -- what the Prosecution wrote about these alleged
20 witnesses. So I refer to this legal principle which has a firm basis on
21 national and international basis, both in the continental and Anglo-Saxon
22 systems. So don't provide rules and regulations against me which were
23 adopted after the indictment was raised because then I have no safety in
25 And I have to tell you something else. I consulted some -- the
1 legal advisors and associates of Slobodan Milosevic --
2 JUDGE ANTONETTI: [Interpretation] First of all, let's me try to
3 address what you have just said. You are relying on customary law, as
4 well as the provision of the ICC that does not allow, in terms of
5 procedure, retroactive effect that could prejudice the rights of the
7 Well, let us think about this problem together, and it's a problem
8 that I am quite familiar with because Rule 92 ter is, in fact -- well, I
9 was one of the authors.
10 Since the 13th of September, 1996, a procedure is provided for, 92
11 ter. It makes it possible to save time. Quite obviously, it's a
12 procedure that allows us to save time. Why? Because, in truth, what
13 happens? A witness comes viva voce. What does the Prosecutor do? The
14 Prosecutor has his written statement and asks him questions in order for
15 him to confirm his written statement. The Prosecutor stands, has the
16 statement before him, asks questions following the order of the written
18 So based on that, why spend three hours asking questions that are
19 already answered in the written statement? It makes more sense for the
20 written statement to be handed to everyone and for the examination to be
21 based on the statement. That's the first aspect of my answer.
22 And, secondly, contrary to what you said in the Roman-Germanic
23 systems, well, if there is an investigating judge, what does he do? He
24 hears the statement, and the written statements are then part of the whole
25 file or dossier. And so some witnesses will be called during the trial,
1 but not all of the witnesses, just some of them. The written statements
2 are already in the dossier, and there is no cross-examination in the
3 Roman-Germanic tradition. And what is included in the dossier is admitted
4 into evidence.
5 And now as to Rule 92 quater, it is true that the provision only
6 relates to the cases in the statement is that of a person who has died.
7 I'm sure you're thinking of Mr. Babic. I'm sure that you have Mr. Babic
8 in mind. And if -- well, the Prosecution may ask for the statement to be
9 admitted, and you say this could prejudice my interests because I will not
10 be able to cross-examine him. But I've already given you the answer. The
11 Chamber can very well exclude such a statement because it has to do with
12 your conduct.
13 Now, I don't know what Mr. Babic said, but, quite obviously, he
14 made a written statement that concerns you and the fact that he met with
15 you, and you are not given the opportunity to challenge his statement,
16 then, in fact, there could be prejudice to your interests.
17 So that's what I have to say for the time being. And you've
18 raised a completely new issue --
19 THE ACCUSED SESELJ: [Interpretation] Judge, you are quite right in
20 interpreting the rules of the continental legal system. All witness
21 statements from the investigation enter into the court files and records
22 and are used in judgement, however, only in case the Defence attended the
23 investigation and could then take part in the questioning of a witness.
24 Here the Defence never took part anywhere. It is the Prosecutor
25 that wrote the statement. They did not provide me a record of how the
1 witness was questioned, so I could see that he was threatened, that he
2 might be a suspect, and so on and so forth, and what they did to entice
3 him, offering him protection, a job in a foreign country, refuge for his
4 family, and so on. Here, they only provide me with the bare statement
5 provided by the Prosecution, and then that alleged witness signed in
6 English. The statement was read back to him by a translator, an
7 interpreter, and whether this was read back correctly and precisely or not
8 is a matter that is debatable.
9 I was not able to be present when he was examined and questioned.
10 I was not able to put a single question to him. And you have Rule 71
11 where statements are given which can be taken only if the Defence can take
12 part in the questioning, in the case of depositions. And I consulted the
13 legal advisors and associates --
14 JUDGE ANTONETTI: [Interpretation] I agree with what you say, but
15 you say if someone is no longer here, he's deceased, well, then you cannot
16 cross-examine him. But let's take a witness, X, who has died. I'm not
17 citing any names here. The Prosecutor requests the admission of his
18 statement, and you are opposed to such admission for the reasons you have
19 just explained.
20 Well, nothing prevents you then in your submissions from saying,
21 "Witness X says that he saw me on the 4th of February, 1993," to take an
22 example, "in a certain city." And, in your submission, you can say, "He's
23 lying. I never saw him, in particular, or all the more so because on that
24 date I wasn't in that city. I was, let's say, in Belgrade or elsewhere."
25 And in a footnote, you can refer to another witness, Y, who could confirm
2 So the contradictory debate can still take place, even on the
3 basis of written documents, because in your submissions you can very well
4 challenge the substance of the written statement, even if, as you say, the
5 Prosecutor supervised the statement and had the witness sign it. Nothing
6 prevents you from contradicting what is said in the written statement. So
7 there is a contradictory debate even in that context, and then the Chamber
8 will rule. So I'm not sure I understand or follow your arguments.
9 THE ACCUSED SESELJ: [Interpretation] Judge, take a look at the
10 reply by the Prosecutor to a response to the accused with respect to a
11 request to the statement of Milan Babic, and then you'll see all the
12 problems that were encountered. The Prosecution never disclosed to me the
13 testimony of Milan Babic in Martic, Milosevic, Krajisnik, and the other
14 trials if he testified in some more. What the Prosecution says is that
15 the public sessions at which Mr. Babic testified are accessible at the web
16 site of the ICTY. That means I have to switch the internet, the web site
17 on and read it in English. That's impossible.
18 Transcripts from closed sessions in English can be provided to the
19 accused if he tables a request for that, and then I'm given it in English,
20 or they offer me audiotapes. You see that they are violating your ruling.
21 They -- what they should have done is that they be introduced in -- that
22 Milan Babic's statements be introduced in these files and records and to
23 send them that way. And they've turned a deaf ear to your ruling.
24 I don't know what Milan Babic spoke about. There's nothing bad he
25 could have said about me, except to confirm the thesis about a joint --
1 the existence of a joint criminal enterprise and me taking part in it.
2 That's a phrase that he might have uttered. But six Prosecution witnesses
3 died in the meantime. None of them said anything special to me for to --
4 for me to be afraid of it, but the Prosecution must provide me with all
5 their testimony in other trials on paper before I state my views about
6 whether I accept it or not.
7 And what I tried to explain to you a moment ago is this: I
8 consulted the legal associates and advisors of Slobodan Milosevic and they
9 expressed doubt, because during those trials there were many witnesses, as
10 Geoffrey Nice said, pursuant to 92 bis and a half. They tried to
11 introduce that practice before it was provided for in the Rules of
12 Procedure and Evidence, and they expressed doubt and concern about the
13 fact that witnesses whose testimony was taken in the files and records and
14 answered in cross-examination had somebody to give them a ready-made
15 answer which they heard through their headsets and uttered in the
16 courtroom. The witness was whispered into their ears.
17 So those are the doubts that the legal associates of Mr. Milosevic
18 have. Now, what prevents them doing the same thing and applying the same
19 technique and technology here? Who can prevent an OTP staff member to
20 whisper the answers into the ear of witnesses that they are then going to
21 utter in the courtroom?
22 JUDGE ANTONETTI: [Interpretation] Well, you've mentioned two
23 things. The second one seems quite extraordinary. I'll come back to it.
24 As for the first, I'm sure Mrs. Dahl will be able to answer that.
25 The transcripts regarding Mr. Babic, Mr. Seselj has said that he
1 has not received them. I seem to have understood that the Prosecution is
2 providing for their translation into B/C/S. Is that right, Ms. Dahl?
3 MS. DAHL: Yes, Your Honour.
4 JUDGE ANTONETTI: [Interpretation] So, with regard to that aspect,
5 you will receive them soon since they are being translated.
6 Mr. Seselj.
7 THE ACCUSED SESELJ: [Interpretation] Well, that's the first time I
8 hear of this, that the transcripts are being translated, because what I
9 received from the OTP and you have too is this reply in point 6, or
10 paragraph 6 as you referred to it.
11 It says: "The fact that the accused must use the official
12 transcripts -- the interpreter is telling to me slow down. "The fact that
13 the accused must use the official transcripts in English does not mean
14 that these court proceedings are unjust or that the accused has been
15 prevented from formulating a response to a request or to prepare for
16 trial. According to Article 21, paragraph 4 of the Statute, the accused
17 is guaranteed the services of a translator free of charge, and he must
18 have associates who know the language and be able to help him. Before he
19 was accorded this right, the Registrar asked the accused to select persons
20 who fulfilled basic conditions set out in Rule 44 of the Rules of
21 Procedure and Evidence of the Tribunal, including at least one person
22 which in written form and orally can speak one of the two working
23 languages of the International Tribunal."
24 Do you know what that means? They are now telling me to use
25 transcripts in English, once again; whereas, you guaranteed me the
1 inviolable right of being provided with documents in the Serbian language.
2 I have four or five other problems that I'd like to raise here
3 during the Status Conference which I noted of a similar nature.
4 JUDGE ANTONETTI: [Interpretation] We'll come to those right away.
5 Yes, Mrs. Dahl, you have a response?
6 MS. DAHL: Yes, please, I'd like an opportunity to reply, because
7 it is apparent that Mr. Seselj has misapprehended our reply because he's
8 distorting what we said.
9 What we said was that we are in the -- we are using due diligence
10 to comply with the order to provide all prior testimony in the format that
11 Mr. Seselj finds most accessible. I cannot fathom out of thin air
12 hundreds of days of trial testimony.
13 We have given priority to transcribing the testimony of living
14 witnesses. Mr. Babic is dead today. I will hazard a guess that he will
15 still be dead in three months. I want to make sure, as we said in our
16 reply, that Mr. Seselj has an opportunity to supplement any opposition
17 that he has to Mr. Babic's testimony when he gets the transcribed
18 testimony, but I have to allocate resources in a way that is sensible, and
19 I do not wish to engage in an academic debate.
20 If he wants material faster, there are ways to give that material
21 to Mr. Seselj that he has chosen not to use. I am in complete agreement
22 with providing transcripts of testimony in the native language of the
23 accused, and we are working as hard as we can to make that happen. I
24 think it makes sense to make the record of transcripts in this Tribunal
25 available in that format. But if he needs the information faster, he can
1 use an interpreter. He can have a language qualified staff. He can
2 listen to the audiotapes.
3 So he is not disabled except by his own choice, and it concerns me
4 because I gravely want the trial to be fair and to have Mr. Seselj fully
5 informed and ready. I am working in the utmost of good faith to make that
6 happen as quickly as possible.
7 JUDGE ANTONETTI: [Interpretation] I do not have any doubt with
8 regard to your goodwill and good faith.
9 And, Mr. Seselj, there's one thing that I mustn't forget to
10 address. You spoke about the Milosevic trial, and you said you were
11 concerned because you were told that when witnesses were testifying, in
12 the Milosevic trial, things were being whispered to them, answers were
13 being whispered to them via the headphones. This is extremely surprising
14 to go me. It would mean that a sophisticated system had been set up which
15 seems utterly unimaginable to me. So if that's been said to you, please
16 ask those who have suggested these things to you to corroborate or to
17 prove it. It would be extremely serious. It would mean that during
18 hearings witnesses had been manipulated, which would be a huge scandal.
19 So this is very surprising to me.
20 When a witness appears before us, if he is examined in English, he
21 hears the question in B/C/S via the headphones and he answers in his own
22 language. So what you're suggesting is that -- well, first of all,
23 there's the question in English that he hears, then someone at the same
24 time would be giving him the answer, and then he gives this answer in his
25 own language.
1 From a technical standpoint, this does not seem very realistic to
2 me. I have no idea who your sources are.
3 THE ACCUSED SESELJ: [Interpretation] Judge, I will try to get a
4 written statement from the legal advisor who expressed this suspicion.
5 Until that time, I will not mention his name. Most of the witnesses who
6 testified here testified in the Serbian language. Mr. Milosevic
7 cross-examined in Serbian, and there was time for an answer to be
8 whispered. I am only expressions suspicions. Whether we have material
9 evidence is another matter. But whether one of the legal advisors will
10 sign a statement stating that he suspected that throughout the
11 proceedings, I believe he will.
12 As for what Ms. Dahl has stated, she says that the transcripts
13 will be disclosed to me in the Serbian language. You, erroneously, call
14 it B/C/S. This is an insult to the Serbian language. There is only the
15 Serbian language. There is no such language as B/C/S.
16 But Madam Dahl has forgotten one thing. She expressly state that
17 had she would deliver to me only the relevant parts of the transcripts not
18 entire transcripts, but I don't want the relevant parts because it is not
19 up to her to decide what is relevant. I have to decide what is relevant.
20 I want them complete, just as they are on the record in English and in
21 French. I want them complete in the Serbian language, not just excerpts.
22 There have been attempts to foist only excerpts on me.
23 JUDGE ANTONETTI: [Interpretation] Now, on this question of a
24 selective choice of relevant passages, do you have an answer?
25 MS. DAHL: Well, it seems that's a misunderstanding, because I
1 agree with Mr. Seselj that he's entitled to complete witness statements,
2 and I would not put myself in the position to make a judgement as to
3 what's useful for him or not. We have --
4 JUDGE ANTONETTI: [Interpretation] Very well. Very well.
5 MS. DAHL: [Previous translation continues] ... in filing the
6 motion to select what is relevant to this case. We doesn't want to give
7 the Chamber irrelevant material. But as far as the disclosure obligation
8 of witness statements, he gets the whole thing. He can pick and choose
9 what he considers to be relevant and material.
10 I would like to respond to the suspicions that Mr. Seselj raised,
11 and I would request that the Pre-Trial Judge give Mr. Seselj an
12 instruction. Lawyers appearing before you are required to have a good
13 faith basis for allegations or arguments that they may base in fact. I
14 think it contaminates this proceeding to have unbridled and ungrounded
15 suspicions and accusations hurled around the courtroom that detract from
16 the dignity of the proceeding.
17 It's absurd to consider that the Prosecution is going to be
18 whispering into witness's ears the correct answer; and if Mr. Seselj can
19 find someone who will say such a thing under oath, he should do that first
20 before he brings the accusation. He must be instructed that he has the
21 same obligations to act in good faith as if there was a lawyer speaking
22 before him. I hearken back to my statements before about the dignified
23 role that Defence counsel play in proceedings, and the absence of Defence
24 counsel must not allow these proceedings to be turned into a forum for
25 Mr. Seselj to spout his view of the facts without any basis in reality.
1 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, yes, sometimes you
2 launch accusations against several without any evidence, and this creates
3 a problem because, in so doing, you can say today it's night, while it is
4 actually daylight.
5 Now, you've just spoken about this question of witnesses who would
6 have had whispered answers, and this is very serious. I suppose you
7 realise, do you?
8 THE ACCUSED SESELJ: [Interpretation] I am fully aware of all this,
9 and I refer to it as a suspicion. I can bring proof that the legal
10 advisors harboured that suspicion. However, it's illusory to ask me to
11 provide material evidence that it did happen. I can't do that, but it's a
12 fact that Mr. Milosevic's legal advisor suspected that this was going on.
13 They harboured this suspicion, and they conveyed it to me. That is a
14 fact, and you can call it whatever you like. I refer to it as a
15 suspicion, and I am now burdened with this suspicion.
16 I will try to get at least one legal advisor of Mr. Milosevic to
17 provide me with a written statement that there did exist a suspicion that
18 such things were happening. He's not saying that it did happen as a fact,
19 but that they had these suspicions. They were sitting outside the
21 JUDGE ANTONETTI: [Interpretation] Quickly, just before we break, I
22 want to also talk about the e-court system. You have seen, Mr. Seselj.
23 You have a monitor in front of you; and when you press a button, you may
24 then see some documents which will appear on the monitor. When you press
25 on the e-court button, you see then -- you can see no evidence. So there
1 is no document for the moment. But when there is one, it will appear on
2 the monitor.
3 The system is the following: Defence, when it intends to --
4 Defence, when it intends during cross-examination to show to a witness a
5 certain document, Defence let's the Registry have the documents and those
6 documents are scanned; and then the accused, yourself in this case, you
7 may, when Witness X, Y, Z would be there, "Witness, I am going to show you
8 document D424," and then the document D424 will appear on the monitor,
9 because you have given it to the Registry so that it can be scanned.
10 My question is very simple: Do you intend to pass on to the
11 Registry the documents which you would use during cross-examinations?
12 THE ACCUSED SESELJ: [Interpretation] Judge, by the 10th of
13 October, I am planning to submit to the Registry about 10.000 pages of
14 various documents. I have already submitted one of my books. I may need
15 to submit another one and have it translated in full. That is what I will
17 These documents have been sorted according to the general
18 locations of the alleged crimes. There is a group of documents for
19 Vojvodina, another for Vukovar, another for Zvornik, another for Sarajevo,
20 and one for Herzegovina.
21 The documents for Vukovar, for example, will contain statements of
22 the bus drivers who will testify that the volunteers of the Serb Radical
23 Party left for Belgrade before the crime in Ovcara occurred, for example;
24 then we will have documents showing that the police investigated all
25 possible cases of violations of law and order and attacks on people and
1 property the area of Vojvodina; then there will be documents from the
2 trials of the group tried in Belgrade for the crimes in Ovcara.
3 This material alone has 4.000 pages. I have to submit this in
4 full to the Court, and all of this has to be translated into English
5 because this will show that I am not responsible for Vukovar in any way at
7 Furthermore, there is the Zvornik group accused of crimes that
8 happened in Zvornik in 1992, and I will submit to you the documents
9 available in relation to this, and they have to be translated.
10 As for Sarajevo, some persons are mentioned, and I will deliver
11 several hundred documents to show that at the times certain alleged crimes
12 took place they were not volunteers of the Serb Radical Party.
13 As for Herzegovina, the chief alleged perpetrator, a man called
14 Grahovac, I will bring written evidence that at the time he was not only a
15 member of the Serbian Renewal Party, a rival party, a party hostile to
16 mine, but that he was also in Nevesinje, a deputy in the municipality on
17 behalf of that party. I have proof to show that this man was never a
18 volunteer of the Serb Radical Party.
19 This is the nature of the documents I will submit by the 10th of
20 October. I need these documents for the cross-examination of witnesses of
21 the Prosecution, for cross-examination of Prosecution expert witnesses,
22 and I will need most of them for my personal testimony.
23 If you give me a hundred days -- or rather, a hundred hours to
24 present the Defence case, my testimony will take at least 40 hours.
25 That's how I have planned it. About 40 hours will be taken up by me,
1 about 40 by experts for the Defence, and 20 will be Defence witnesses, but
2 that's just generally speaking.
3 JUDGE ANTONETTI: [Interpretation] Yes. So I see broadly that your
4 defence is structured, and I understand that you are going to send these
5 documents on the 10th of October.
6 So my very simple question: Among these documents, you said you
7 had a document which shows that the volunteers left by coach for Belgrade
8 and that they were not there where the events took place. So this
9 document, I suppose there is a document, did you give it a number? Yes.
10 Each document has a number.
11 THE ACCUSED SESELJ: [Interpretation] All the documents will be
12 classified according to crime base. The documents will be labelled
13 Vukovar 1, Vukovar 2, Zvornik 1, Zvornik 2, and so on and so forth. My
14 have legal advisors will sort this out very nicely, which is why they are
15 now driving to The Hague rather of flying, because they have a vast
16 quantity of documents to bring here.
17 JUDGE ANTONETTI: [Interpretation] I see matters are progressing or
18 making some headway. Now, the other question is VHS cassettes that have
19 to be given after each hearing. When there is a hearing, you receive
20 after the hearing the cassette. It is a video, VHS cassette, which you
21 can then play on your VHS to see the whole hearing.
22 Very well. So the Registry told me that they are now passing to
23 the DVD system rather than VHS, which means that anything which takes
24 place in the courtroom will be on DVD. So you will have the DVD disk and
25 you can put it in your machine and see the same things.
1 Is that a problem for you?
2 THE ACCUSED SESELJ: [Interpretation] There is a danger inherent in
3 that for me, Judge. I can accept this in principle. I usually task my
4 legal advisors, because the Registry have shown that they can do this job
5 very quickly, and I get the video cassettes on the very same day. I give
6 them to my advisors and they organise the transcription of that. So they
7 have everything on paper.
8 When the proceedings begin, I will instruct them to always have
9 someone present in The Hague to transcribe everything, because it's
10 difficult for me to use recordings. I need paper. And, later on, I will
11 submit everything in the Serbian language, because I will have to quote
12 these documents in my appeal. I will not be able to quote in English or
13 refer to video recordings because for a normal man that's beyond his
14 capacity. So I will have everything referred to by page in the Serbian
15 version transcribed from the recording, and the Registrar will be able to
16 check whether the transcripts are correct.
17 That's how I have organised my service, and I believe that this
18 will operate well. So I can accept that, what you have suggested,
19 provided I am not then swamped with documents and evidence and everything
20 else on cassettes.
21 JUDGE ANTONETTI: [Interpretation] [Previous translation continues]
22 ... let you have the recording on the VHS cassette which is then
23 transformed in a scanned DVD.
24 THE ACCUSED SESELJ: [Interpretation] Those recordings.
25 JUDGE ANTONETTI: [Interpretation] Yes. Yes, just for those
1 recordings, only those recordings.
2 Now we have break for 20 minutes, and we will resume in 20
4 --- Recess taken at 12.35 p.m.
5 --- On resuming at 12.54 p.m.
6 JUDGE ANTONETTI: [Interpretation] The hearing is resumed. We
7 still have 50 minutes, so quickly.
8 Mr. Seselj, concerning Mr. Jerkovic, I invite you to let the
9 Registrar know that Mr. Jerkovic is a barrister, a member of the bar in
10 his country. This would be sufficient in order to settle the problem.
11 The second problem which concerned me was that when there will be
12 a hearing, you're going to come to the hearing and you have your own
13 exhibits, your own binders. So today I have come with three binders.
14 This may be that you may come to a hearing with eight or ten binders.
15 Since these binders are in your cell, they will have to be brought
16 here. So I concern myself with this matter, and this might be what we
17 could do: Your binders would be brought by a guard to the entrance of the
18 detention unit; after which, they would be given to one of your assistants
19 at a quarter past 8.00, for the hearing begins at 9.00, just to give the
20 time to your assistant to arrive with the binders. And when the guard
21 will, either in your presence or not, give the binders to your assistant,
22 a receipt will be signed by your assistant, according to which he will
23 have received the exhibits in question.
24 After the hearing, those binders will be remitted by your
25 assistant to the detention unit, and then a piece of paper will be given
1 to him, a receipt, according to which he has given back those binders.
2 Would you have some comments to make about this way of
3 proceeding --
4 THE INTERPRETER: Microphone, please.
5 JUDGE ANTONETTI: [Interpretation] -- about this method?
6 THE ACCUSED SESELJ: [Interpretation] I have no comments to make to
7 what you've just said, but I would have some other matters to raise, so
8 please bear that in mind with respect to the time we have at our disposal.
9 JUDGE ANTONETTI: [Interpretation] Yes. I give you the floor for
10 those matters you want to talk about.
11 THE ACCUSED SESELJ: [Interpretation] Judge, I have to say that I
12 have a great deal of problems in communicating with the Prosecution, and I
13 must congratulate myself on having shown extra goodwill during the break.
14 I accepted some 15 disks and videotapes because they guaranteed that they
15 were indeed just videotapes, and I took them in electronic form. But I
16 don't wish the Prosecution to draw the wrong conclusion on the basis of
17 that and to think that they can in future provide with documents in the
18 same format.
19 Thus far the Prosecution has supplied me with exhibits up to
20 number 2.500, along with numerous exceptions, I don't know the exact
21 number, 2 or 300 exceptions of certain documents, the disclosure of which
22 has been prolonged.
23 If the trial begins on the 7th of November, then I consider that
24 by the 7th of October they should be able to disclose all exhibits to me
25 by that time, along with the names of protected witnesses according to
1 your instructions that I received yesterday or the day before, where it
2 says specifically which names must be disclosed a month before trial and
3 others a month before the specific witness takes the stand.
4 Now, Judge, if they fail to disclose all the names of the
5 protected witnesses and exhibits, then you'll have to apply certain
6 sanctions towards the Prosecution because that means that the start of
7 trial will be delayed, through no fault of my own.
8 Then there's another problem, the disclosure pursuant to Rule
9 68(i). They have just disclosed several documents, two or three, over
10 the past few months, and there are 207.000 pages of them, which means that
11 they will have to provide me with those documents at least a month before
12 the trial. The Prosecutor sent me a code by which I can access their
13 database. That code means nothing to me, and I won't be accessing their
14 database at all, because it is their duty to provide me with the documents
15 on the basis of Rule 68(i) in the Serbian language.
16 It's the same duty as presenting exhibits, witness statements,
17 Prosecution, and so on, because the OTP is an officer of international
18 justice and he has the right to pursue perpetrators and prosecute them,
19 perpetrators of alleged crimes, and to disclose potentially exculpatory
20 material. So these are tasks of equal importance and the OTP cannot place
21 the emphasis on one without providing the other. That's quite obviously
22 what they will do because I will enter the legal proceedings and process
23 without having been disclosed documents according to Rule 68.
24 Now, among the exhibits that they have disclosed to me, a large
25 number was exclusively in English. I wrote to Mrs. Dahl on the 24th of
1 September, for example. I sent in a submission to her, stating exactly
2 the number of the exhibits, between 2.000 and 2.500, which are exclusively
3 in English, and there are 135 of those. I can give you a copy of this
4 document if you wish to see it, and I have pinpointed those documents.
5 They were documents exclusively provided in English, and I sent them back
6 in a separate package, because otherwise I return everything that is in
7 English. If I'm given the Serbian version, I return the documents in
8 English, but these are documents that are exclusively in English.
9 Next, they sent me an expert report by Ivan Grujic; allegedly
10 sent, however, I don't see this expert report by this expert anywhere.
11 Rather, in appendix A, there is something which is just a table of
12 documents and nothing more than that.
13 Appendix B, they say, the Prosecutor versus Slobodan Milosevic,
14 such-and-such a trial, transcript pages such-and-such, and admitted in the
15 Vukovar 3, the Vukovar troika. Now, where is that transcript? I have not
16 received it.
17 Then the transcript of the Prosecutor versus Mrksic, Appendix D, I
18 haven't got that either.
19 Appendix B, the Milosevic transcript. What does that mean? It
20 means that they don't intend to send me the transcripts in Serbian at all
21 from the questioning of Ivan Grujic as an expert witness in other
22 proceedings, in other trials; nor do they make mention that I will be
23 supplied with that document ever. I can't see that anywhere. So this is
24 a document September me on the 20th of September and is dated the 14th of
25 July, 2006; whereas, I've just received it. I received it on the 20th of
1 September, which means just a few days ago, and it was signed by Hildegard
2 Uertz-Retzlaff. I don't have Ivan Grujic's expert report or the
3 transcript of his testimony either.
4 Furthermore, they sent me two documents without the main text, the
5 basic text, just attachments; for example, attachment to Dr. Osman Kadic's
6 expert report. It says attachment A, a description of Osman Kadic's
7 report; whereas, I don't see the report anywhere. Attachment B, some
8 documents, and then they provide two or three documents, but there is no
9 Osman Kadic expert report among those documents, because I assume that
10 it's on e-court in electronic format; nor do we have the transcripts of
11 his testimony in other trials either.
12 The Prosecution tabled a request for knowledge on the basis of
13 Rule 94, judicial knowledge on the basis of 94, but I don't have the basic
14 text, and it says, Attachment A. I do have attachment A, but I don't have
15 the main text. And documents have been listed here. I have a list of
16 documents but no actual documents. So which documents are they? There
17 are no markings saying that I've already received them amongst the
18 exhibits disclosed.
19 So what is this? What does all this mean? There is no
20 explanation as to why these documents are sent to the attention of, et
22 Next --
23 MS. DAHL: Your Honour --
24 THE ACCUSED SESELJ: [Interpretation] Don't interrupt me, please.
25 JUDGE ANTONETTI: [Interpretation] Mrs. Dahl, perhaps you'd better
1 answer now on a certain number of points.
2 MS. DAHL: I thought that might make it more efficient, so before
3 we get too far ahead, I want to make sure the concerns are addressed.
4 Taking the most recent first, the material that Mr. Seselj is
5 discussing has been served on him by the Registry; and as he aware, we
6 have been coordinating closely with Registry to ensure the provision of
7 transcripts of testimony in the speaker's language. It's outside of
8 CLSS's policy to make translations of transcripts; and so as a result,
9 given the Registry's undertaking last year to provide material to
10 Mr. Seselj in Serbian, we have been assisting with regard to transcripts
11 that have been appended to our expert reports.
12 Consequently, in an effort to provide information as soon as it's
13 available to Mr. Seselj, I understand that the Registry has been serving
14 on him incomplete filings; namely, giving him the report itself and what
15 exists in the appropriate language. We have undertaken to provide the
16 transcription of the Serbian testimony that is appended to the expert
18 With regard to exhibits, I just got Mr. Seselj's reply letters and
19 most recent letters concerning the disclosure of our exhibits, and I
20 consider those to be easily resolved in the ordinary course of our
21 collaboration together. I don't think it's necessary to resort to
22 judicial intervention.
23 With regard to providing Mr. Seselj access to the Electronic
24 Disclosure Suite, we have endeavoured to place him in the position that
25 would be occupied by Defence counsel; namely, giving him access to the
1 available collections of documents that may be relevant to his case. When
2 we get search results for terms that he's indicated are material to his
3 preparation of his defence, we want to make them available to him as
4 quickly as possible.
5 It took quite a bit of work to have a terminal installed at the UN
6 detention unit and to make sure he has training available to him, and that
7 courtesy -- or the facility has been extended to the other
8 self-represented accused to make sure that they're not disadvantaged
9 unnecessarily by virtue of having elected to self-represent.
10 Material that falls within Rule 68(ii) will be provided in
11 electronic form as required by the Rules, and we're fully cognisant of the
12 obligation to provide in paper in Serbian documents that fall within Rule
13 68(i). There is no attempt to divert attention away from our
14 obligations. To the contrary, we are fully discharging them.
15 It's an overstatement to claim that there are some 207.000
16 exculpatory documents in our possession and that we're somehow defaulting
17 on our obligation to disclose. That's simply untrue.
18 JUDGE ANTONETTI: [Interpretation] I think I understood there was
19 at least nearly 6.000 documents. Mr. Seselj, as well as myself, we have
20 received something like 2.500. Mr. Seselj is expecting and waiting to
21 receive the rest.
22 First question: Precisely when will the rest be available? When
23 will it be received? Secondly, how is it out of the 2.500 documents
24 there are some documents whose numbers are 2.023 or 2.068 which are in
25 English and have not been translated into his language? This is the
1 first question I want to ask of you.
2 MS. DAHL: Your Honour, in structuring the renumbered exhibit
3 list, we thought it made sense to leave space in the event that additional
4 documents were numbered after the original numbering exercise. As a
5 consequence, exhibits beginning at 4.000 are the undated documents. It
6 would seem that the numbering would be continuous, but in fact that would
7 be incorrect. The chronologically ordered documents run from 1 to 2.876.
8 We also then segregated the 65 ter exhibits beginning at 5.000.
9 Those are simply the representatively case of the motions to admit written
10 evidence of witness testimony. They are not going to be reprinted because
11 they're already in the record, but we wanted to make sure there was no
12 misunderstanding that if we move for their admission in evidence that fair
13 notice has been given.
14 Videos have a separate number. Those were disclosed today, and
15 the remainder of the exhibits, 2.501 through 2.876 will be disclosed
17 JUDGE ANTONETTI: [Interpretation] Yes. Well, as for the documents
18 which are in English and not in B/C/S, when will he have them in B/C/S?
19 MS. DAHL: As soon as they're available, Your Honour. When I
20 receive information that he's gotten an incomplete set, we, of course,
21 attend to it immediately.
22 JUDGE ANTONETTI: [Interpretation] Therefore, pursuant to our
23 order, if the trial begins on the 6th of November, 30 days before that
24 date, he has to have the list of those witnesses or protected witnesses;
25 that is to say, the 6th of October. On the 6th of October, will you have
1 disclosed that list to him?
2 MS. DAHL: We are finalising a motion for reconsideration of our
3 protective measures sought for specific witnesses based on updated
4 information that we think provides a basis for extending the protective
5 measures that we sought immediately. As with our motion for
6 certification, we will seek to abate the trigger dates of the disclosure
7 obligations pending disposition of the motion.
8 JUDGE ANTONETTI: [Interpretation] So your motion for certification
9 was rejected. I have, therefore, explained that you will always have the
10 possibility to request measures if you have new elements, new grounds
11 which will have appeared justifying the fact that the witness for which
12 protection measures were refused should have those protection measures.
13 Some new elements may appear which appeared after the decision was
14 made, so those decisions are provisional. They may be re-examined with
15 new grounds. So there's no reason to seize the Appeals Chamber about
16 that. So that certification request has been denied.
17 MS. DAHL: With respect to the witnesses for whom we are satisfied
18 about the adequacy of the protective measures based on, of course, the
19 current situation, we will make the required disclosures on the trigger
21 I would like, however, to have the firm trial date defined as the
22 commencement of evidence in the case, because I think that is continent
23 with the spirit of -- the idea of delayed disclosure which it is
24 coincident with evidence rather than lawyer's opening statements.
25 JUDGE ANTONETTI: [Interpretation] Strictly speaking, in law, the
1 Scheduling Order has indicated that the trial will start on the 6th of
2 November; and that, on the 14th of November there, would then be the
3 Prosecution's arguments. All this is already in writing, so you must take
4 account of all that.
5 As for the disclosure to the -- for the exculpatory exhibits,
6 Mr. Seselj has already told us. What do you have to say about that?
7 Didn't you hear? I repeat. Concerning the exculpatory exhibits,
8 Mr. Seselj has said that he had some difficulties. He quoted the figure
9 of some 2.000 exhibits which he doesn't have in his own language. So
10 could you give us some information or get some information on this?
11 MS. DAHL: I'm sorry, Your Honour. I'm wondering whether there is
12 a problem with translation. We are not going to bring exculpatory
13 exhibits. We are bringing inculpatory exhibits as our evidence in court.
14 If there are documents that are exculpatory, we disclose them in paper and
15 in Serbian. There are exhibits that we have withheld disclosure pending
16 determination of our application for protective measures.
17 We've given Mr. Seselj an index of all of those documents, and we
18 have them ready, so that at the appropriate time, we can give him the
19 packages consonant with the Chamber's decision on protective measures.
20 JUDGE ANTONETTI: [Interpretation] When I was speaking of
21 exculpatory evidence, I was speaking of those that fall under 68(i),
22 those that are to be disclosed to the accused. I believe that when you
23 will meet many of these problems, we should normally find a solution,
24 because as I listened to Mr. Seselj, he cited a whole series of documents
25 in which there are missing documents in the annexes or annexes are
1 referred to, but then the supporting material is not given to him and so
2 on. He mentioned a number of cases.
3 So, perhaps, in the administrative procedure, there are some
4 hiccups. Normally, when you transmit this information, please verify that
5 the text is available both in English and in B/C/S, and that all of the
6 documents are submitted. Among those that you submitted to me, I just
7 made a random check. I didn't want to look at them in details yet. Just
8 at random, I took one binder, and I realised that there were some things
9 lacking or there was one translation lacking, for example.
10 Of course, this can happen quite often. I know there are also
11 photocopies and so on. But as rule, when you communication these things,
12 please verify that the texts are given in both languages to avoid such
14 Mr. Seselj, do you have other topics you wish to raise?
15 THE ACCUSED SESELJ: [Interpretation] Yes, I do, Judge.
16 Madam Dahl is behaving as if in these five years the Prosecution
17 has done nothing to search for potentially exculpatory evidence under Rule
18 68(i). Her predecessor, Hildegard Uertz-Retzlaff, in an official material
19 disclosed that there 207 pages of such material, which I rejected at the
20 time because it was on CD rather than on paper, on hard copy. We
21 discussed this at more than one occasion.
22 At Status Conferences, you have received this material, you have
23 seen what it is about but the Prosecution has said nothing about it.
24 In a Prosecution motion for the Trial Chamber to re-examine the
25 motion of the 4th of July, number 208, she personally wrote and signed, in
1 footnote 28 on page 6: "If the Prosecution is required to print out all
2 the material that the accused has rejected hitherto, which is estimated to
3 be 400.000 pages, the costs will be more than 75.000 euros. I'm not
4 interested in these 75.000 euros, but only in those 400.000 pages.
5 From June up to now, I have received not even 20.000 pages, when
6 one puts together all the exhibits delivered to me so far. I haven't had
7 time to count them all because I'm spending most of my time separating out
8 those which exist in Serbian from those which don't and looking for other
9 areas of the Prosecution. So 400.000 pages, when I'm going to receive
10 these? How am I going to embark on the proceedings before these are
11 delivered to me before the trial? Why did Mrs. Dahl write this if they
12 don't exist? So these are evidence that these pages exist, and now she's
13 acting as if none of this exists. What am I to do?
14 JUDGE ANTONETTI: [Interpretation] Mrs. Dahl, we've already
15 discussed this previously, the 207.000 pages. I didn't know you had
16 written a letter in which to some extent you recognise that there were
17 hundreds of thousands of pages and they can't be translated because it
18 would cost 75.000 euros which is what you've written apparently.
19 MS. DAHL: Your Honour, this is -- this is a stale issue that has
20 been settled previously by the Pre-Trial Judge. Mr. Seselj is taking out
21 of context information that was presented to him and to the Pre-Trial
22 Judge that was settled with accepting a pragmatic solution to conduct
23 electronic searches on specified search terms.
24 The Pre-Trial Judge directed Mr. Seselj to provide terms that he
25 wanted searches conducted on. He has failed to do that. Mr. Seselj is
1 failing to draw the necessary distinction between Rule 68(i) and Rule
3 He is also failing to recognise or recall the problem we discussed
4 before, which is that the disks that he rejected are not actually
5 documents. They are electronic versions of search results, and the
6 pragmatic solution was to run the searches again and determine which prong
7 of the Rule the material falls under. We've undertaken that. It's not
8 finished yet. We are also trying to get the case -- all of the exhibits
9 in, all of the other things that he is wanting that we shall provide.
10 It simply distorts the record to claim that there are 207.000
11 exculpatory documents that we're hiding from him. It's simply untrue. We
12 are making available to him in electronic form the relevant collection.
13 JUDGE ANTONETTI: [Interpretation] [No interpretation]
14 MS. DAHL: Your Honour, I'm not getting a translation.
15 THE INTERPRETER: The interpreter is sorry. Can you hear the
16 English booth?
17 JUDGE ANTONETTI: [Interpretation] I was saying, Mr. Seselj, that
18 the issue has already been raised before us. The predecessor of
19 Mrs. Dahl, Mrs. Hildegard, had written that letter mentioning 207.000
20 documents, but, in fact, she did not distinguish between 68(i) and 68(ii).
21 During the last conference, I told you that in light of this
22 problem - and I do not deny that there is a problem here - the best way to
23 proceed would be for you to inform Mrs. Dahl for electronic research what
24 are the topics and documents that are among those 207.000 that would be of
25 interest to you, to inform Mrs. Dahl of which ones are of interest to
1 you. Because, obviously, if there were really 207.000 documents that were
2 exculpatory, then you wouldn't be here. You just wouldn't be accused at
3 all. It wouldn't make sense.
4 So, clearly, there is a problem with regard to the number of
5 documents and the breakdown of those documents. So how can we some of
6 this problem? It is virtually impossible to translate 207.000 documents.
7 So I encourage Mrs. Dahl to look at all of this very closely and to
8 disclose to you on paper and in your language everything that falls under
10 However, with regard to 68(ii), as I said, you must inform the
11 Prosecution exactly what type of documents you are looking for in order to
12 defend yourself; and with their search engine, they will be able to
13 identify those specific documents, print them, and have them translated if
14 they are not yet translated.
15 THE ACCUSED SESELJ: [Interpretation] Judge --
16 MS. DAHL: If I can --
17 JUDGE ANTONETTI: [Interpretation] Yes. Mrs. Dahl, perhaps let us
18 give the floor to Mr. Seselj first, and then you can answer.
19 THE ACCUSED SESELJ: [Interpretation] Judge, I know very well why I
20 am here, and I am not confusing Rules 68(i) and 68(ii). That confusion is
21 being foisted on me.
22 According to Rule 68(i), the Prosecution has identified 207.000
23 pages of exculpatory material. Under Rule 68(ii) --
24 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, I agree with you.
25 But when the Prosecutor said 207.000 in that letter, she did not
1 distinguish between 68(i) and 68(ii). That is the problem.
2 THE ACCUSED SESELJ: [Interpretation] Yes, it is, Judge, because
3 the material under 68(ii) has not been identified by the Prosecution at
4 all. There's no need for the Prosecution to identify it. They are giving
5 me their database at my disposal, which contains several million
6 documents. That's Rule 68(ii).
7 Everything that the OTP has already identified as potentially
8 exculpatory and the number of pages that they have calculated, all this
9 falls under Rule 68(i). They cannot first identify the exculpatory
10 material and then give it to me to search. That is quite illogical.
11 207.000 pages have been identified as potentially exculpatory. This is
12 not material that has to be translated, because as you see, it's all in
13 Serbian. They say B/C/S. It's all in Serbian. So all they have to do is
14 switch on their printer and print this out, nothing more, and then deliver
15 those 207.000 pages to me. These are documents they have already
16 identified, and what is in their database is for me to identify.
17 You have offered an easier solution, for me to identify the sort
18 of document I'm interested in, but I will do this only after the 68(i)
19 material has been disclosed to me, and then I will ask for additional
20 material to be identified. But this falls under 68(i), and it's in
21 Serbian. So there is no dispute here.
22 Secondly, Ms. Dahl has not at all explained what happened to those
23 4.000 pages which I rejected --
24 THE INTERPRETER: Interpreter's correction: 400.000 pages.
25 THE ACCUSED SESELJ: [Interpreted] -- which I rejected because they
1 were either on CD or electronic form. They filed a motion which you
2 denied, to clarify your decision on my motion to 81 concerning disclosure.
3 They asked you to re-examine your decision, and you rejected their motion.
4 And in that document, they admit to these 400.000 pages.
5 So they find it more worthwhile to say that these pages do not
6 exist, rather than have to print them out and deliver them to me. You say
7 if there were 207.000 pages, I would not be indicted, but the reasons why
8 I have been indicted are quite clear. Those 207.000 pages are not
9 exculpatory evidence but potentially exculpatory evidence, and then I will
10 select what I will use in the presentation of my case, but I have to see
11 them all to decide what I can use and what I can't.
12 Everything the OTP has concluded can be exculpatory for any reason
13 has to be disclosed to me.
14 JUDGE ANTONETTI: [Interpretation] Mrs. Dahl, on the 9th of July,
15 2007, I handed down an order in this regard on this issue, and I believe
16 the order has been translated. And I remind you of the solution that was
17 suggested, and I also said that you must continue to use all possible
18 means to discharge your obligations pursuant to Rule 68(i).
19 I asked the accused to communicate key words to the Prosecution
20 that he feels are necessary so that the Prosecution can discover more
21 efficiently any exculpatory material that falls under 68(i).
22 That being said, listening to Mr. Seselj, he says the 207.000
23 pages are in Serb, and, apparently, he don't have those pages. Could the
24 Prosecution not simply print those documents and give them to him? That
25 would already solve one of the problems since it's not an issue of
1 translation. You just need to print them out.
2 And, secondly, when you mentioned in your letter 400.000 pages,
3 what are you referring to exactly?
4 MS. DAHL: Let me take the last question first. You will recall
5 we had a coloured chart that Mr. Seselj brought to court that had a total
6 number of pages rejected by him in the course of disclosure. That was
7 the, shall we say, worst case scenario if we were required to simply take
8 all those electronic disks and convert them into paper. I would say that
9 that's incorrect to do and not possible in any event, because we would be
10 faced, of course, with the situation that he is then saying, "I've just
11 been dumped on by 400.000 pages of unstructured documents without any
13 Now, I want to address the next question which is that I will
14 inquire as to the possibility of the printout of 207.000 documents. I
15 will do some research, because obviously I don't have at my fingertips the
16 exact memory of what that is, where it exists, and what difficulties would
17 be involved.
18 I want to make sure, on a third point, though, that the record is
19 clear. Our giving Mr. Seselj access to the Electronic Disclosure Suite is
20 not just giving him access to the evidence collection at large. We have
21 prepared specific search results using the terms that he announced in
22 court: For instance, White Eagles, Arkan's men, Yellow Wasps, and Vuk
23 Draskovic. And using those, we've created a descriptive index of the
24 documents. I'm going to give that to him in paper, so that he can then
25 look through. He will have the document identification and what hopefully
1 will be a useful short description, so that he can as at his leisure pick
2 out what he wants to review.
3 The beauty of having a small folder that he can select from is
4 that it's instantly available. It's like having -- taking a trip to the
5 library knowing what books you want to read.
6 JUDGE ANTONETTI: [Interpretation] That's excellent what you have
7 done. But, again, I'm a bit surprised, because on the basis of the terms
8 that he gave to you, the White Eagles, Arkan's men, Yellow Wasps, and so
9 on, you now have a chart. But for his defence, since Arkan is mentioned
10 in the indictment, what he needs is the document that relates to Arkan or
11 to the Yellow Wasps and the White Eagles. He needs that material.
12 So why don't you just give him the document since you've
13 identified the document. And it's quite obvious that those documents will
14 be of interest to him because they're mentioned or those subjects are
15 mentioned in the indictment.
16 MS. DAHL: They're not exculpatory, Your Honour. They don't fall
17 within 68(i). They fall in 68(ii). They may be material to his
18 preparation of his Defence. It is not possible to click and print on
19 everything that he might find interesting. We will be here until next
20 year when the doors close.
21 JUDGE ANTONETTI: [Interpretation] But, Mrs. Dahl, what do you
22 know? How do you know that they are not possibly exculpatory material?
23 How can you assert this? How do you know at the outset that it's not
24 exculpatory material since he said to us last time that he challenges any
25 connection with the White Eagles? That's what he said. So, since he
1 challenges any connection, if there's a document, one might assume.
2 MS. DAHL: Your Honour, of course, I don't know without reviewing
3 them whether or not they're exculpatory. But under the general theory of
4 the case, crimes committed by perpetrators who are tools of the joint
5 criminal enterprise don't exculpate Mr. Seselj. We are exercising due
6 diligence by bringing within our knowledge the information the Prosecution
7 possesses, but I'm not a computer.
8 JUDGE ANTONETTI: [Interpretation] Very well. Ms. Dahl, I'm not
9 going to get into legal aspects. You're quite right. However, don't
10 forget that under 7(1), it's not only an issue of the joint criminal
11 enterprise. There are other aspects as well, other issues, not just the
12 joint criminal enterprise.
13 So, if I've understood correctly, you will disclose to him the
14 list of everything you've identified; and if he does request certain
15 documents, you will give them to him; is that right?
16 MS. DAHL: No. We will disclose the list to him. If he wants us
17 to print some of them, I will consider the request within our capacity;
18 and if it's within our capacity, I'll do it as a courtesy, but I'm not a
19 quick-print company. I am discharging my professional obligations to
20 disclose pursuant to the orders of the Court. That is limited to material
21 within our actual knowledge that exculpates him either for purposes of
22 guilt or punishment.
23 I am exercising due diligence in reviewing the material that comes
24 to us. When we figure out something that could be Rule 68(i), we send it
25 to him in paper and Serbian. That is the way this system works and his
1 complaints are unfounded.
2 THE ACCUSED SESELJ: [Interpretation] Judge, this part of the
3 discussion has been very fruitful, because Madam Dahl has confirmed here
4 that I am responsible for all the crimes committed by Arkan's men, the
5 Yellow Wasps, White Eagles. She hasn't mentioned Vuk Draskovic's Serbian
6 Guard, but it's mentioned both in the indictment and the supporting
7 documents, because, according to her theory, we were all members of the
8 joint criminal enterprise.
9 She has now clarified before the public something very important.
10 I can confirm now that I am being tried for what Arkan's men, the Yellow
11 Wasps, the White Eagles, and Vuk Draskovic's Serbian Guard did. The
12 volunteers of the Serb Radical Party are hardly ever mentioned. It always
13 just says the Serb forces did this or that, and there were members of the
14 Serb Radical Party, their volunteers, among them.
15 Secondly, Madam Dahl doesn't want to work on finding exculpatory
16 material under Rule 68(i). Look at the amount of such material that
17 existed in other cases, and look at the amount that exists in this case.
18 The discrepancy is astounding. I waive this right here now.
19 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, you say look at all
20 the documents disclosed in other cases regarding documents that fall
21 within the scope of 68(i), but do you have any figures, because I have no
23 THE ACCUSED SESELJ: [Interpretation] To the best of my knowledge,
24 there's no case where there was not a hundred thousand pages of
25 potentially exculpatory material. That's what I know about other cases.
1 I've read mostly the judgements from other cases, but I have had
2 opportunities to talk to other prisoners here in The Hague.
3 I waive my right to have Madam Dahl discharge her duty as an
4 international legal officer. She doesn't have to find a single
5 potentially exculpatory document. All I ask is that those documents that
6 Hildegard Uertz-Retzlaff found, and she said she found 207.000 pages of
7 potentially exculpatory documents, just give me those and don't look for
8 any more. I'm not interested in anything more. Just give me that.
9 But what is the problem? The problem is printing this out. They
10 need 75.000 euros; not to translate them because it's all in Serbian, but
11 simply to switch on the printer and use the paper. That will cost them
12 75.000 euros.
13 JUDGE ANTONETTI: [Interpretation] Mrs. Dahl, unfortunately, I must
14 bring this hearing to an end since there will be another hearing in this
15 courtroom. I think one of the solutions would be to print out all of the
16 documents that are in Serbian to begin with. Since there is no
17 translation, that is necessary. It will perhaps -- there will, of course,
18 be costs for the printing, but I think that's the best solution.
19 Personally, I can't think of any other.
20 MS. DAHL: I will inquire, Your Honour, and I'll report back to
21 you as to the feasibility of it, but I reject the notion that Mr. Seselj
22 can waive having a fair trial.
23 JUDGE ANTONETTI: [Interpretation] Very well. We've taken note of
24 that. Mr. Seselj, I have to bring this hearing to an end.
25 THE ACCUSED SESELJ: [Interpretation] Just two brief points,
1 please, very briefly.
2 Judge, I ask that you issue your approval for the Registry to
3 deliver to me part of the tapes of the trial of Jadranko Prlic et al,
4 where Counsel Karnavas mentioned my name and attacked me because of my
5 words about him and his and behaviour at the Status Conference. I feel I
6 have an objective right to have this delivered to me. Whether it's 15
7 minutes, 20 minutes, or half an hour, I ask that that part of the tape be
8 handed to me.
9 JUDGE ANTONETTI: [Interpretation] With regard to that request, you
10 need to file a written motion to the Prlic Trial Chamber. Although, I'm a
11 member of that Chamber, it is the Chamber as a whole that must rule. So
12 he need to draft a brief motion and submit it to the Trial Chamber in the
13 Prlic case.
14 THE ACCUSED SESELJ: [Interpretation] It was in open session, so I
15 thought it could be done without formalities. It was not in closed
16 session. I thought it could be done quite simply through the Registry.
17 But if you insist, I will file a written motion.
18 JUDGE ANTONETTI: [Interpretation] No, you have to file a motion.
19 THE ACCUSED SESELJ: [Interpretation] And one more issue I have to
20 raise. At one of the previous Status Conferences, I explained a problem
21 I'm having as regards my status as a detainee and my rights. I am the
22 only one who for five years now has not been allowed to receive his
23 personal friends as visitors.
24 JUDGE ANTONETTI: [Interpretation] I am quite aware. Indeed, your
25 wife was supposed to come and visit you accompanied by the friend, and the
1 friend of your wife was not granted a visa. This has been drawn my
2 attention. It would seem from what I have been told that the friend of
3 your wife had not responded to the requests made by the Embassy of the
4 Netherlands, that requires since your country is not party to the Schengen
5 Agreement, that some documents be submitted so that the visa could be
6 granted. It's because she did not comply with this request to submit
7 documents that she did not receive a visa.
8 So, of course, when I learned of that, I was surprised and I tried
9 to find out more because it's not appropriate that that visitors be
10 forbidden to you, but it's simply due to a problem of the necessary
11 documents. So this friend must submit the documents required by the
12 embassy and then there will no longer be a problem.
13 THE ACCUSED SESELJ: [Interpretation] Judge, they did not give you
14 true information. The Registry approved the visit orally as they do in
15 other cases. The tasks of submitting a visa request, a visa application,
16 was done by my secretary from the Serb Radical Party. She's been doing
17 that for years for members of my family. All the documents were
18 submitted. Up to the very last day, they gave no reply. They just said,
19 "We're waiting for the decision."
20 And when the plane took off, I told the secretary to take back the
21 passports and the applications. This is reliable information. They said
22 neither yes nor no. They said nothing until the plane took off, and I did
23 not receive a visit from my wife because of this either.
24 JUDGE ANTONETTI: [Interpretation] What needs to be done is for
25 your wife and her friend to quickly again address a request to the embassy
1 to be granted a visa. I certainly do not have any opposition to this, on
2 the contrary. And the detention unit and the Registry, well, it would
3 also be in their interest for the detainees to be able to meet with those
4 who are close to them. And if things continue to go on this way, then do
5 not hesitate to write me a letter, and I will intervene with the Dutch
6 authorities to settle the problem.
7 Now I am compelled to bring this hearing to an end. I hope that I
8 will find some time during the month of October for us to meet again
9 before the Pre-Trial Conference. But if it cannot be set, then we will
10 see each other again on the date of the Pre-Trial Conference, and I wish
11 you all a very good day.
12 --- Whereupon the Status Conference adjourned
13 at 1.48 p.m.