Tribunal Criminal Tribunal for the Former Yugoslavia

Page 14244

 1                           Wednesday, 25 February 2009

 2                           [Open session]

 3                           --- Upon commencing at 8.30 a.m.

 4                           [The accused entered court]

 5             JUDGE ANTONETTI: [Interpretation] Would you please call the case.

 6             THE REGISTRAR:  Good morning, Your Honours.  Good morning,

 7     everyone in and around the courtroom.

 8             This is case number IT-03-67-T, the Prosecutor versus

 9     Vojislav Seselj.

10             Thank you, Your Honours.

11             JUDGE ANTONETTI: [Interpretation] Thank you very much, Registrar.

12             Today is Wednesday, February 25th, 2009, and I would like to say

13     good morning to Mr. Seselj, to the representatives of the OTP, Madam

14     Biersay, and the various colleagues that are with you.  I'd like to say

15     good morning to the Registrar and the usher and all of the others who

16     work with us.

17             Yesterday, we were supposed to have a hearing, and I was in my

18     office at 8.00 in the morning.  The alarm went off, and there was no

19     electricity, no lights at all in the court; and, therefore, all of the

20     morning hearings were cancelled.  The lights came back at around 10.00,

21     but it was too late to get anything started, and therefore we did not

22     have the witness here yesterday.  And I've just been told that we have a

23     new problem.

24             Madam Biersay, could you please tell us what the situation is

25     with the witness.

Page 14245

 1             MS. BIERSAY:  Thank you, Your Honour.

 2             I was called this morning by VWS and was informed that the

 3     witness has taken ill and had to be seen in his hotel room because he

 4     wasn't able to be moved.  So for today's hearing, the witness is

 5     unavailable due to illness, based on what we have been told by VWS.

 6             JUDGE HARHOFF:  Excuse me, Madam Biersay.

 7             Is there any indication as to the nature of his ill notice?

 8             MS. BIERSAY:  They opined that it had to do with the stress

 9     related to revisiting those events and that he was prepared yesterday,

10     and because he didn't go yesterday, that added to the pressure that he

11     felt, and so they think this is a manifestation of that.  But he is being

12     examined as we speak, I believe, and as I have been informed, he is

13     vomiting and exhibiting physical signs of illness.

14             JUDGE HARHOFF:  Do we know when he can be examined?

15             MS. BIERSAY:  I believe that they are making those arrangements

16     now, and it's possible, I think, that the doctor is seeing him now, but

17     I'm not absolutely sure.  That's the information I had before I came down

18     to the courtroom.  So the question is whether or not he will be better

19     somehow before the end of this morning's session, or if we -- if he's

20     kept until next week and if he remains unavailable, what we do in that

21     case.

22             JUDGE ANTONETTI: [Interpretation] Well, of course we can't do

23     anything about such a situation if the witness is ill.  I believe the

24     Registrar told me he was taken to the hospital, so, indeed, perhaps it's

25     more serious than we had thought.  It's up to you, therefore, to tell us

Page 14246

 1     whether you decide to call him back; and, of course, we'll have to

 2     examine our schedule because the Court's schedule is now extremely busy.

 3     We have seven, sometimes eight trials underway, and, therefore, the fact

 4     that the courtrooms are all occupied; we have to plan these things ahead

 5     of time to be certain to have a courtroom.

 6             Secondly, I understood that the witness comes from quite far

 7     away, so that can also be an additional problem.  The main issue, of

 8     course, is that the witness be in good health to testify.

 9             From a more personal point of view, I'd like to say the following

10     and ask that it be in the transcript.

11             This witness is going to be talking about Bijelo Brdo, a

12     deliberate pattern, and the question is, since we had other witnesses

13     talking about this, whether this is an essential witness.  It's up to the

14     OTP to tell us whether this is absolutely essential or not for the OTP's

15     case.  And if perhaps it's under 92 bis, would it be a 92 quater, in

16     which case the witness is totally unable to come and testify for reasons

17     of health, it's up to you to decide.  You can file motions.  You can,

18     again, tell us who's going to be testifying.  That is, therefore, the

19     present situation.

20             Mr. Seselj, do you have any observations to make?

21             THE ACCUSED: [Interpretation] Yes, I do, in relation to those

22     first two questions, but then I have some other matters to raise.

23             First of all, as for this purported power cut yesterday, I'm not

24     surprised by this phenomenon at all as far as The Hague Tribunal is

25     concerned.  However, what I am surprised about is the fact that no one

Page 14247

 1     worked yesterday because of course this Tribunal functions best in the

 2     dark.  That was proven by all the trials so far.

 3             Secondly, everything that Ms. Biersay said is totally arbitrary

 4     and untenable.  She is not in a position to assess the reasons that led

 5     to this witness's possible health problems.  She cannot say he is in a

 6     stressful situation because he has to testify again and remember all the

 7     bad things that happened to him.  That is ridiculous.  I think that the

 8     reasons are quite different.

 9             First of all, there's the question of whether bad things happened

10     to this person at all, except for what he did himself.  First of all, he

11     completed this elementary school for retarded persons, and then so on and

12     so forth.

13             MS. BIERSAY:  I object, Your Honour.

14             THE ACCUSED: [Interpretation] However, let us also look at his

15     misdemeanors record.

16             JUDGE ANTONETTI: [Interpretation] Madam Biersay has expressed an

17     objection, but -- I don't like to interrupt, but sometimes it's

18     necessary.  Madam Biersay told us a moment ago that she was informed by

19     the witness division that the witness was unavailable, that he was ill,

20     and they told Madam Biersay that the reason was stress.  Madam Biersay is

21     not a doctor.  All she did was relate what she was told.  Therefore, do

22     not accuse her.  She hasn't done anything.  All she has done is tell us

23     what the Witness Section told her.  It's not her fault, and I'm sure that

24     she wanted the witness to be here, as I did.  We're all here this

25     morning, we're all prepared, and she found out at the last minute, as was

Page 14248

 1     my case, that the witness is not available.  So there's no reason to call

 2     her word into question.

 3             Mr. Seselj.

 4             MS. BIERSAY:  Forgive me, Your Honour.

 5             JUDGE ANTONETTI: [Interpretation] Madam Biersay.

 6             MS. BIERSAY:  My objection goes to Mr. Seselj making unchallenged

 7     representations about who this witness is and what he has done without

 8     that witness being in the courtroom to respond to those allegations.

 9             JUDGE ANTONETTI: [Interpretation] Mr. Seselj.

10             THE ACCUSED: [Interpretation] Mr. President, there is no single

11     court in the world where it is indispensable to give a witness the

12     possibility to respond to allegations made by the Prosecution or the

13     Defence.  The witness is not a party to the proceedings.  The Defence

14     here has the right to respond to allegations made by the Prosecution, and

15     vice versa.  Both the Prosecution and the Defence have the right to

16     appeal decisions made by the Trial Chamber, the Court, so what

17     Ms. Biersay is demonstrating here now is total ignorance of the law.

18             Secondly, the Victims and Witnesses Unit cannot provide a medical

19     diagnosis without a medical examination.  If it has to do with stress,

20     then there has to be a psychiatric evaluation, and then experts can tell

21     us what the reason is that led to this stress.

22             JUDGE HARHOFF:  As far as I have been informed, you have not been

23     in contact with the witness, nor have any of your people, so I do not

24     think that you are in a position to offer any qualified opinion as to the

25     reasons why this witness has been indisposable for today.

Page 14249

 1             I asked Ms. Biersay a while ago if there was any indication as to

 2     the nature of his illness, and she reported that what she had been told

 3     by those who had dealt with the witness was that apparently he had been

 4     stressed by the fact that his testimony yesterday was interrupted by the

 5     power failure.  That's it.  There is no reason to go any further on this

 6     matter, so I suggest that if you have anything else to say, you do it

 7     now.  Otherwise, we adjourn.

 8             THE ACCUSED: [Interpretation] Mr. Harhoff, I know that you always

 9     intervene when you find what I'm saying unpleasant, but I do have

10     additional things to say precisely with regard to this matter, and I

11     insist on that.

12             The more you frown, Mr. Harhoff, the more I know that I'm right,

13     because you don't like it when I'm right, and you've already shown that.

14             What does that mean, that my associates and I did not contact

15     this witness?  Why would we contact they witness?  We're never going to

16     contact a single witness again because then what you construe here are

17     decisions that I am intimidating witnesses and whatever else.

18             The witness said here, one witness -- one of the false witnesses

19     in closed session said here that my people came to see him, did not

20     threaten him, did not --

21             JUDGE HARHOFF:  Stop it.  We are discussing only whether you were

22     in possession of any qualified opinion as to the nature of this witness's

23     being unable to testify today, that's all.  Let's drop the subject and

24     move on.

25             THE ACCUSED: [Interpretation] I assert -- well, okay, we'll drop

Page 14250

 1     the subject because you don't like it; you find it unpleasant.

 2             I claim that you as the Trial Chamber and the OTP and I are not

 3     in a position to assess what the reasons are of this witness's possible

 4     stress until we get a competent medical report from a physician.  You

 5     allow yourself to speculate, Mr. Harhoff.  The OTP is speculating.  The

 6     Victims and Witnesses Unit is speculating and listening to the witness,

 7     as if he knew what the matter was with him.  Even a physician, when he

 8     falls ill, cannot always tell what's wrong with him.

 9             JUDGE ANTONETTI: [Interpretation] What you have stated has been

10     put in the transcript.

11             Can we go on to another topic, please.

12             THE ACCUSED: [Interpretation] Well, since you're not letting me

13     speak about this key issue, then let's move on to issues of far lesser

14     importance, minor issues.

15             I received here a request from the OTP, in relation to

16     Rule 92 quater, to admit a statement of a certain person called Zoran Tot

17     who died a few years ago.  I oppose that vehemently, first of all,

18     because I believe that it is absolutely unlawful to admit into evidence

19     statements made by dead witnesses, especially witnesses who are not

20     victims.  Well, if a victim left a letter describing all the things that

21     happened to him or her and then died, that could, in a certain situation,

22     be admitted into evidence.  However, this is not a victim.  This is a

23     Prosecution witness who died two or three years ago.  Had the OTP acted

24     on time and had the Trial Chamber started these proceedings on time, had

25     my trial started within a reasonable time-period, the Prosecution would

Page 14251

 1     have managed to call all the witnesses to appear here in the courtroom,

 2     all of those who died in the meantime.  Whose fault is it that my trial

 3     did not start on time and that my basic procedural law was trampled upon

 4     in this way?  I'm the only person who cannot be blamed for that.  It is

 5     the fault of the Court and the fault of the Prosecution.  Now I am

 6     supposed to suffer the detrimental effects of this and this false

 7     testimony because my trial did not start within a reasonable period of

 8     time.

 9             I could prove easily what is true and what is not true in this

10     testimony -- or, rather, in this statement had the witness appeared in

11     court.  What do I care that the witness died?  You have ten deceased

12     witnesses already.  Some of them cut their own torment short by dying

13     because the Prosecution called them in other trials.  First they promised

14     them if they would testify in one trial, they would not be punished or

15     not be accused.  They testify in one trial, and then they, nevertheless,

16     accuse them or, rather, indict them.  And then they testify in other

17     trials and ultimately kill themselves.

18             This one does not appear to have committed suicide.  It seems to

19     be a natural death, and the causes of death are not registered here, but

20     it doesn't matter.  I mean, he was not killed by someone, and it's not

21     that external causes led to his death.

22             Also, in the Rules of Procedure and Evidence, there is

23     Rule 92 quater is totally unlawful, totally unlawful.  However, even if

24     it were not totally unlawful, what is unlawful is to apply it in my trial

25     because it was introduced a few years after the trial against me started.

Page 14252

 1     When did my trial start?  With my initial appearance in the courtroom.

 2     After I had my initial appearance in the courtroom, no amendments to the

 3     Rules of Procedure and Evidence can be applied if they are to my

 4     detriment.

 5             I know that I am saying all of this in vain because you violated

 6     my procedural rights several times already in relation to Rule 92 quater,

 7     and you'll go on doing that; I know that.  I'm saying here for the

 8     transcript, for the public, and for legal history, that is why I'm saying

 9     all of this.  I'm not even thinking about what your decision is going to

10     be like, and I'm not interested in your decision at all.  I'm totally

11     uninterested in all your future decisions after the decision that you

12     made a week or two ago, whenever, and I'm also not counting on you to

13     behave in a lawful manner.

14             I oppose this.  The proceedings that started against me with my

15     initial appearance in court had its pre-trial stage almost five years --

16     it went on for almost five years; Also, there was the trial stage; then

17     soon, the appeal stage was supposed to start.  However, that is not going

18     to happen because now we are starting the post-trial stage.  The

19     post-trial stage has never been recorded yet, not even in this Tribunal.

20     Legal theory is unaware of it.  Legal practice is unaware of it.  When

21     the Prosecution is defeated in the courtroom, when they suffer fiasco

22     with a large number of false witnesses, then proceedings are interrupted

23     and the post-trial stage starts.  This post-trial stage is much ado about

24     nothing, and there's a popular saying in Serbian to that effect.

25             So I had other things to tell you.  Should I proceed?

Page 14253

 1             JUDGE HARHOFF:  Please do.

 2             JUDGE ANTONETTI: [Interpretation] I listened to you and I did not

 3     interrupt you, but I don't agree with what you've said.  The Chamber has

 4     handed down a number of decisions, and every single time you come back on

 5     these decisions.  We all know that you are a top-notch legal

 6     professional, and we realise that you're not saying just anything, and we

 7     also understand that you're making declarations to be heard outside this

 8     courtroom.  But outside this courtroom, it should be known that

 9     Article 92 quater is an article -- is a rule that is intended to be used

10     when a witness has died or is totally unavailable.  That's the general

11     rule, but there is a special condition that applies, which is paragraph B

12     of this article, which states that the fact that a testimony tends to

13     prove the act or the behaviour of the accused which is indicted can, can,

14     in whole or in part, be admitted.  The Judges adopted this Rule, and I

15     was amongst those Judges because it is the standing Judges, the permanent

16     Judges, who adopt these texts, and I myself participated in that very

17     process.  I would like to say that paragraph B requires in-depth

18     examination to be absolutely certain that the statements contained in the

19     written statement do not tend to prove acts or conduct of an accused.  If

20     such is the case, then the statement can be refused, either totally or

21     partially.

22             But the second point - and, of course, from a legal point of view

23     this is very interesting - is the issue of retroactivity, whether or not

24     this article can apply after the fact in a case underway.  You are right

25     that this case began September 13th, 2006, when this was adopted, but

Page 14254

 1     Article 6 of the Rules also states that the changes come into force seven

 2     days after publication without prejudice to the rights of the accused, a

 3     person who is declared guilty, or when the trial is underway.  So if

 4     there is a prejudice for the accused, then the text can be refused.  That

 5     is what Rule 6(D) states.

 6             In your submissions, you can indeed prove that the statement that

 7     I'm not familiar with, at least I don't have it here before me, you can

 8     tend to prove that the statement deals with your acts or conduct, and in

 9     which case your rights would be hampered if such is the case.  If the

10     Chamber accepts that or does not accept it, you can appeal.  That is

11     exactly what the procedure is.

12             Therefore, I don't agree with what you've just stated, because

13     you give the impression that everything is decided ahead of time here in

14     this courtroom, and you know perfectly well that that's not the case;

15     that's not how things function.

16             Do you have other topics you would like to deal with this

17     morning?

18             THE ACCUSED: [Interpretation] Mr. President, I'm not going over

19     old ground.  This is a new issue.  This is something that I received on

20     the 18th of February, and it was filed in English on the 7th of January,

21     2008 -- 2009, with the Registry.  This is a most recent issue, and I am

22     now making an oral objection, which has the same effect as a written

23     objection.

24             Secondly, you quoted Rule 6(D) quite correctly, that the

25     amendments to the Rules shall not apply in a way which would prejudice

Page 14255

 1     the rights of the accused or a person acquitted of all charges in any

 2     ongoing proceedings.  So the Rules prohibit the application of

 3     Rule 94 quater in my case, but I bear in mind the fact that you have

 4     already admitted at least two statements under Rule 94 quater,

 5     Ljubisa Petkovic and another witness whose name is under seal and who

 6     cannot appear in the courtroom because of his illness, so you have

 7     already violated a basic procedural right that I have by retroactively

 8     applying a rule to an ongoing trial.

 9             My trial or my proceedings against me began sometime -- well, it

10     was the 25th or 26th of February, 2003, when I appeared in this courtroom

11     for the first time.  That is when the procedural matters began, first in

12     pre-trial, then in the trial stage.  That's one thing.

13             Secondly, I faced a number of charges here, that my legal

14     assistants are pressuring the witnesses, and most of -- the majority of

15     the Trial Chamber accepted those unfounded allegations and decided that

16     the trial should be suspended sine die, and I (redacted)

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Page 14256

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 7             THE ACCUSED: [Interpretation] If the witness himself decided to

 8     disclose his identity in public -- I never mentioned his name, so why

 9     should we do that?  What's the purpose?  The witness goes public --

10             JUDGE ANTONETTI: [Interpretation] I will explain in closed

11     session.

12             Can we go into closed session, please.

13                           [Private session]

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Page 14258

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12                           [Open session]

13             THE REGISTRAR:  Your Honours, we're back in open --

14             THE ACCUSED: [Interpretation] Witness -- Protected Witness VS-037

15     handed over to my associates -- well, there's no reason to redact

16     anything.  I didn't reveal any single piece of information that would

17     reveal the identity of this witness, so why is Ms. Biersay on her feet?

18     You have half an hour to redact everything that I say if you don't like

19     it, so there's really no reason for Ms. Biersay to intervene.

20             JUDGE ANTONETTI: [Interpretation] Madam Biersay.

21             MS. BIERSAY:  As the Court is aware, this is a delayed disclosure

22     witness, and the Court has already given Mr. Seselj warnings with respect

23     to this witness, and it is our position that anything said about this

24     witness should be done in private session so that this information will

25     not tend to identify this witness.

Page 14259

 1             JUDGE ANTONETTI: [Interpretation] Fine.  I'm going to consult

 2     with my colleagues.

 3                           [Trial Chamber confers]

 4             JUDGE ANTONETTI: [Interpretation] We're going to go back into

 5     closed session for a few moments.

 6             Registrar, please, closed session.

 7                           [Private session]

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23                           [Open session]

24             THE REGISTRAR:  Your Honours, we're back in public session.

25             THE ACCUSED: [Interpretation] Okay.  Well, then I won't even

Page 14260

 1     mention his pseudonym.

 2             A protected Prosecution witness in this case, who has yet to

 3     testify - he's supposed to appear in the courtroom, and I can't wait to

 4     see him here - has given to my associates two documents which indicate

 5     that he had testified earlier in another trial, and a Sarajevo Muslim

 6     paper made public his identity, commented on his testimony, and there was

 7     a whole range of things published there.

 8             His lawyer, in November 2003, the 12th of November, submitted to

 9     the Tribunal in The Hague, to the Victims and Witnesses Unit, a report

10     against those -- a complaint against the Sarajevo newspaper, claiming

11     that his witness -- that his client was subjected to death threats and a

12     great deal of stress and so on, and the Tribunal never responded to this

13     complaint.  And if the witness appears here in the courtroom, I will

14     discuss it with him.

15             And let me draw your attention to the fact that in any of his

16     previous statements, the witness never mentions my name.  He never

17     accuses me of anything.  Please bear that in mind.  I went through the

18     transcripts of his interviews.

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Page 14261

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 4             In my case, in a beautiful book, 1.200 pages, with a lovely

 5     title, in the introductory remarks I never revealed the names of

 6     protected witnesses, and in the appendix to the book, in various

 7     documents that I have gathered, you can find documents where full names

 8     are indicated of witnesses, but you don't get to have their pseudonyms

 9     right next to those names, so you really have to put in an effort, and

10     you have to be quite smart in order to perhaps be able to divine the

11     identity of those witnesses.  Yet the proceedings have been launched

12     because the trial itself is at a dead-end, the Prosecution has faced a

13     fiasco, and the Trial Chamber is under the orders to convict me on any

14     count.

15             So this is The Hague justice.  The Tribunal in The Hague is doing

16     nothing when the identity of protected witnesses is revealed in the most

17     egregious manner and when we have cases when protected witnesses are

18     pilloried in this manner, and yet in my case we're trying to look for a

19     needle in a haystack; and the parallel trial, well, when is it going to

20     begin?  We don't have an inkling of it.  The Trial Chamber has

21     capitulated - and you have to simply admit that this is the case - you

22     have capitulated in the face of the Prosecution.

23             The Prosecution is now trying to shift the blame for the fiasco

24     it has undergone to the Trial Chamber, and you accepted the blame for the

25     fiasco.  You accepted to be the scapegoat for this, instead of the

Page 14262

 1     Prosecution having all the blame for it, for filing a false indictment

 2     and trying to prove my guilt by calling false witnesses, and it has

 3     really been dealt a decisive defeat.  But now, since you have accepted

 4     the blame, to be the scapegoat for it, now you have to bear the

 5     consequences.

 6             JUDGE ANTONETTI: [Interpretation] I'd like to make just a brief

 7     comment regarding protected witnesses whose identity was revealed in

 8     Sarajevo.

 9             You said that the Court was seized, but nothing happened.  This

10     is the first time I've ever heard about this matter, so I do not at all

11     feel personally involved.  Although I am part of the Tribunal, I've never

12     heard about this matter.  Now, if the lawyer of the witness that you're

13     referring to called upon the Tribunal, it must have been either the

14     Chamber that had ordered the protective measures or the OTP, and I do not

15     know what happened in that case.  I'm totally unaware.  That's the first

16     point.

17             Secondly, you referred to the publication "BOM" in Sarajevo.

18     Now, if they published the identity of a protected witness, there is a

19     problem, but it's up to the OTP to deal with that.

20             Now, as regards the other matters, you mentioned capitulation,

21     but I have not capitulated, and I would like to say that to you.

22             Do you have anything else you would like to deal with this

23     morning, Mr. Seselj?

24             THE INTERPRETER:  Microphone, please.

25             THE ACCUSED: [Interpretation] I had another issue to raise, and I

Page 14263

 1     assume that this will be the last thing that we will be dealing with

 2     today.

 3             I filed a motion the week before last to -- seeking leave to

 4     appeal the decision of the Trial Chamber to suspend the trial.  However,

 5     since in the meantime I received a text --

 6             JUDGE LATTANZI: [Interpretation] Mr. Seselj, please be much

 7     clearer in the use of words because we have not stopped or interrupted

 8     the trial.  We have just stopped the various sessions regarding other

 9     witnesses which the Prosecution wanted to call.

10             THE ACCUSED: [Interpretation] Ms. Lattanzi, it says here that you

11     suspended the trial.  The full title is "Decision on the Motion of the

12     Prosecution to Suspend Trial," with the dissenting opinion by

13     Judge Antonetti appended.  So we are talking about staying the

14     proceedings.

15             JUDGE LATTANZI: [Interpretation] It's the heading of your

16     request, but you have to refer to the words that were used in the

17     decision.

18             THE ACCUSED: [Interpretation] This is the title of your decision.

19     I didn't have to read the whole decision.  I simply read the title of

20     your decision, Ms. Lattanzi.

21             JUDGE LATTANZI: [Interpretation] The title of the decision bears

22     the same title as that of the request.

23             THE ACCUSED: [Interpretation] Yes, but in the dissenting

24     opinion --

25             JUDGE LATTANZI: [Interpretation] If it is not the case, I will

Page 14264

 1     ask this to be corrected.

 2             THE ACCUSED: [Interpretation] Ms. Lattanzi, on the last page of

 3     your decision, page 4, it reads -- decides that while the proceedings are

 4     stayed, sessions should be held regularly to deal with administrative

 5     issues.  Please do not correct me.  You are not going to force me to face

 6     this unpleasantness.  And it also states that the hearing of other

 7     witnesses shall be suspended until other motions -- new motions have been

 8     ruled on.  I didn't file any other motions except the old one, but that's

 9     not the essence.  So I'm right as regards the staying of the proceedings.

10             JUDGE LATTANZI: [Interpretation] So the suspension of the hearing

11     of other witnesses.  This is what is said.

12             THE ACCUSED: [Interpretation] And in the next passage, it

13     reads -- decides that while the proceedings have been stayed.

14             THE INTERPRETER:  Interpreter's note:  We do not have the

15     original of the decision.

16             THE ACCUSED: [Interpretation] So the previous passage provides

17     specific information about the next passage.  This means that, in effect,

18     you're staying the proceedings.  This is what you wrote, not me.

19             I wanted to say something else if you have the patience.  If you

20     don't, I don't have to address it at all.

21             I filed a motion seeking leave to appeal this decision.  However,

22     then I received a confidential document and the public document, your

23     decision.  Both are your decisions.  And I asked Zoran Krasic, my legal

24     associate, to draft this appeal. (redacted)

25   (redacted)

Page 14265

 1   (redacted)

 2   (redacted)

 3   (redacted) I'm unable to give him this confidential document which contains

 4     vital data not present in the public document.  So I cannot ask

 5     Zoran Krasic to file this motion, to file this appeal, so I won't be

 6     filing an appeal at all because now two of my rights have been curtailed;

 7     first of all, the right to have a legal associate of my own choice, on

 8     the basis of a suspicion that he may have done something somewhere that

 9     has not been proven, and then you also violated my right to a fair trial

10     and to a trial within a reasonable period of time.  And since two vital

11     procedural rights have been violated, I will not be filing this appeal.

12     Let's have the status quo.  And the situation is that, that my rights

13     have been flagrantly violated because this situation is in my favour.

14     What would I do if the Appeals Chamber actually quashed your decision?

15     What would I do then?

16                           [Trial Chamber confers]

17             JUDGE ANTONETTI: [Interpretation] Mr. Seselj, I would like to try

18     and understand because this is an important topic and we have to keep a

19     cool head about this.

20             You have referred to a document drafted by Mr. Krasic for an

21     appeal certification motion.  The Chamber was waiting for the answer from

22     the Prosecutor in order to rule on this.  Now you are adding something

23     new by stating that given that they are documents of a confidential

24     nature which you could not send to Mr. Krasic, you will not do anything

25     regarding the appeal.  Does that mean that the document on the appeal

Page 14266

 1     certification is withdrawn by yourself? (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted) However, you personally have an assistant, Mr. Aleksic, and

 5     that was authorised by the Registrar, and he can sign all documents that

 6     your assistants can draft.  This document can be drafted by any one of

 7     your staff, and you can sign.  So this is what I have difficulties to

 8     understand.

 9             So what is your decision?  Do you want to make a motion for

10     appeal certification, or are you withdrawing this motion, bearing in

11     mind -- and you will have to bear in mind those consequences.  If the

12     Appeal Chamber is not seized, the decision of the Chamber that was

13     reached with a majority will have an effect along the course of time.

14     And so we will come back here with other witnesses, but we do not know at

15     which date yet.

16             THE ACCUSED: [Interpretation] Yes, I withdraw my motion seeking

17     certification to appeal because it is hard for me now to change my legal

18     adviser after six years of cooperation.

19             As for my entire expert team, the expert team for assisting my

20     Defence, it is only Zoran Krasic who is capable of writing this kind of a

21     document, and you can see that if you review all my motions so far, about

22     three-quarters were written by Zoran Krasic.  Other people are capable

23     for other kinds of work.  I find them all to be invaluable in my Defence

24     team, as investigators, as legal advisers for other matters, but for

25     writing motions to be submitted in court, the only expert I have is

Page 14267

 1     Zoran Krasic.

 2             Now, since I've clarified that to you now, fully, I believe, I

 3     would like to draw your attention to another matter, just by way of an

 4     illustration.

 5             JUDGE ANTONETTI: [Interpretation] Just a second.  I would like to

 6     say something.

 7             Mr. Seselj, do not forget that the Appeals Chamber had ruled that

 8     you could take care of your own Defence, without the help of a counsel,

 9     and this very Chamber noted that you have extended legal knowledge and

10     that you can defend yourself better than anybody else.  Of course,

11     Mr. Krasic helped you, but in fact you can do the same work as he did.

12             So now you are in total contradiction with yourself because you

13     are saying today that there is nothing you can do because Mr. Krasic

14     cannot have any documents, whereas in fact your submissions for the

15     motion seeking certification to appeal could have been very well done by

16     yourself.  So you can see for yourself that it doesn't really make sense.

17     Either you take care of your own defence and you bear all the

18     consequences of that, because it means that you will have to conduct your

19     own cross-examinations, you will be in a position yourself to submit

20     motions, and we know, because we've seen you doing it, we know that

21     Mr. Krasic is not as fundamentally useful as that, but now you say that

22     there is nothing you can do without him.  So we will have to say now we

23     will have to appoint a counsel to yourself.  This is the consequence.

24             Yes, Mr. Seselj.

25             THE ACCUSED: [Interpretation] I don't think that that will be the

Page 14268

 1     consequence.  If that is the consequence, then we are immediately going

 2     to finish these proceedings, definitely, and then you can try me

 3     posthumously.

 4             First of all, I continue to insist that I am professionally

 5     capable of defending myself, but I am not physically capable of doing it.

 6     Several years ago, I made written submissions to the Registry that they

 7     familiarise me with case law, to provide me with motions of the OTP, the

 8     Defence, various decisions made by Trial Chambers, Appeal Chambers,

 9     et cetera.  I never received all of that.  I only get judgements, and

10     with a great delay.

11             In order for someone to familiarise himself with the case law of

12     this Tribunal, at least the public documents, he or she has to have the

13     internet available.  One has to consult case law here; not only of this

14     Tribunal, but Anglo-Saxon case law, as such.  It is only Zoran Krasic

15     that can do that for me.  And --

16             JUDGE LATTANZI: [Interpretation] But Zoran Krasic can carry on

17     doing this for yourself, for your appeal, for instance, against the

18     decision for adjournment, so I do not really see the problem there.  This

19     is, of course, case law, and this is the last point that you mentioned.

20             JUDGE ANTONETTI: [Interpretation] Mr. Seselj, for a certification

21     to appeal, there are only two things.  The first -- the only thing you do

22     is that you say that you are seeking appeal, and this has already been

23     done, and then the Appeals Chamber, if they certify your appeal, then

24     they will have all the various elements to deal with, and then you can

25     submit documents, you can send submissions, or you may not do so.  That's

Page 14269

 1     all.

 2             THE ACCUSED: [Interpretation] Well, now I'm telling you that I

 3     don't want to appeal, and that's my right, and you cannot threaten me by

 4     imposing counsel because I'm not going to file an interlocutory appeal

 5     with regard to a particular decision.  You cannot do that.  Well, you can

 6     do anything, just like you voted in favour of this decision.  You can do

 7     anything, but bear in mind what the consequence are.

 8             I wanted to say something else to you by way of an illustration.

 9     You will remember the problem when the Registry forbade -- now why is

10     Ms. Biersay on her feet yet again?  How can this be done yet again?

11             JUDGE ANTONETTI: [Interpretation] But since I'm courteous, I'm

12     going to ask her what she wants to say.

13             MS. BIERSAY:  Thank you, Your Honour.  I was waiting for

14     Mr. Seselj to take a breath in order to request a redaction of the

15     transcript, the references made to certain publications.  It is, in our

16     opinion, a fact that could tend to identify some of these witnesses.  I'm

17     unaware what protective measures exist in the Lukic and Lukic case, but

18     certainly with respect to the two publications, and specifically page 16,

19     line 21, to page 17, line 24, as well as a reference made by the

20     Presiding Judge at page 19, line 11 to line 13.

21             JUDGE ANTONETTI: [Interpretation] Very well.  I'm going to ask

22     the Court Officer for the Chamber to check on this, and we will issue a

23     decision.

24             Mr. Seselj.

25             THE ACCUSED: [Interpretation] I oppose that energetically because

Page 14270

 1     this is just a method that the OTP is resorting to in order to prevent

 2     these proceedings from being public.  When the services of yours redact

 3     this, it's as if they were cutting things up with an axe.  Instead of

 4     deleting a single word, they delete about ten minutes of the video

 5     footage of the trial, and all of that works to the detriment of these

 6     proceedings.  And without having these proceedings conducted in public,

 7     I'm not interested in them at all.  As I told you several times, you are

 8     trying me and the public is trying you, and without the public, there is

 9     no one to try you.  So in that situation, I'm highly handicapped.

10             Now, the fact that I have the right to represent myself does not

11     mean that I literally have to be on my own.  In order to be on my own,

12     quite literally, I could do that perhaps if I were not in detention and

13     then if I were to be my very own investigator, legal adviser, et cetera.

14     However, I've been in detention for six years now, and I cannot be

15     literally on my own.  I have to have people assisting me, and my right to

16     self-representation does not rule out the engagement of different

17     assistants to do different kinds of work for me.  No one is capable of

18     doing everything on his own.  I could not have written 413 motions on my

19     own so far, had I not had assistance as well.

20             You'll remember the problems that we had towards the end of

21     September last year when the Registry decided to sever privileged

22     communication with my legal advisers, and that is when all these problems

23     actually started.  As the Trial Chamber, you made a decision instructing

24     the Registrar to change his position, at least in part.  However, the

25     Registrar did not want to carry out your decision; rather, he addressed

Page 14271

 1     the President of the Tribunal, asking him to state his opinion.  He asked

 2     for guidance on the matter, that is.

 3             In January, the decision of the President of the Tribunal with

 4     regard to this matter was submitted to me.  The President of the Tribunal

 5     said that he was not authorised, as President of the Tribunal, to provide

 6     instructions and guidance with regard to this matter, and he instructed

 7     the Registrar to appeal to the Appeals Chamber.  So the Registrar did not

 8     have the right to delay, slow down, or trample upon the decision of the

 9     Trial Chamber.  He had to carry out the decision of the Trial Chamber.

10     The President of the Tribunal is saying that if he has anything against

11     this, he can appeal to the Appeals Chamber.

12             Now, this gives rise to another issue.  Does the Registrar have

13     the right to address the Appeals Chamber, because he's not a party in the

14     proceedings?  Can anyone who is not a party address the Appeals Chamber?

15     I haven't received this document yet, but it seems that the Registrar did

16     indeed address an appeal to the Appeals Chamber because Zoran Krasic

17     tells me that he saw on the internet that there is an Appeals Chamber set

18     up to rule on this motion of the Registrar.

19             Things get so complicated overnight over here that it is

20     absolutely unbelievable.  Now it is the Appeals Chamber that deals with

21     the Registrar's complaint, all of this because the OTP was not able to

22     call a single serious witness who would at least partly, minutely,

23     support the indictment.  Then there are all these threats to have counsel

24     imposed on me, and now the adjournment of the proceedings, and so on and

25     so forth.

Page 14272

 1             Once, perhaps, we made a mistake for having complained at all

 2     with regard to the motion submitted by the OTP to have counsel imposed on

 3     me.  I never received the text in its entirety.  I received a redacted

 4     version.

 5             Judges, I'm not going to react to redacted documents any longer.

 6     I will treat them as nonexistent because in my very own proceedings I

 7     have to be aware of all documents, so all documents in these proceedings

 8     are relevant to me, either in terms of procedure, either in terms of the

 9     law.  None of that can be a secret to me.

10             Finally, I've dealt with everything.

11             JUDGE ANTONETTI: [Interpretation] Mr. Seselj, two things.

12             I would like to correct something that is not correct in what

13     you've just said.  The Trial Chamber had decided, with a majority, that

14     the Registrar should stop to tap your telecommunication conversation, and

15     do not say that the Registrar did not abide by our decision.  When a

16     decision was made, it was abided with.

17             Secondly, according to what you said, tapping is an

18     administrative act which is made by the head of the Detention Unit under

19     the authority of the President of the Tribunal.  It is not a legal act;

20     it's an administrative act.  The President, in his role, may decide not

21     to agree with this action from the Registrar.  So any complaint should be

22     brought before the President of the Tribunal when we deal with an

23     administrative act.  You felt at the time that the Chamber had to be

24     dealt with or should deal with it because it was dealing with your

25     personal freedom, and the Chamber handed down a decision.

Page 14273

 1             It is true that the Registrar made a submission to the

 2     Appeals Chamber.  I do not understand exactly what it means.  I don't

 3     know whether they made an appeal against our decision, I'm not sure, but

 4     without any motion of seeking certification to appeal, the Registrar

 5     should not be a party.  But this morning I read that the Tribunal was

 6     constituting a Bench, so this is the situation as of today.

 7             Mr. Seselj, if you do not have anything else to say --

 8             THE ACCUSED: [Interpretation] I have something to say regarding

 9     what you just said.

10             The President of the Tribunal, in his decision at page 4, states:

11     The only way in which the decision is to be appealed is by filing an

12     appeal with the Appeals Chamber.  That is the position of the President

13     of the Tribunal.

14             Mr. President, we have two telephones in the prison.  One is for

15     private use, and we have to pay for it ourselves, and it is being tapped.

16     The other is the official phone, for official use, and this is how the

17     detainees are able to talk to their lawyers and I was able to talk to my

18     legal associates.  I first provided the phone number of my phone in the

19     Serbian Radical Party, where my legal associates would come, so that I

20     could talk to them.  The Registrar asked me to change the number because,

21     as he indicated, it is possible that some other persons might appear

22     there, and then I provided the phone number of Slavko Jerkovic's law

23     office, and for a year and a half I was able to talk to my legal

24     associates in Slavko Jerkovic's office.

25             JUDGE ANTONETTI: [Interpretation] I would like to ask the legal

Page 14274

 1     officer to come and confer with us.

 2                           [Trial Chamber and legal officer confer]

 3             JUDGE ANTONETTI: [Interpretation] Our apologies, Mr. Seselj.  You

 4     may continue.

 5             THE ACCUSED: [Interpretation] Then, once the Registrar passed the

 6     decision in late September, my right to use the official phone was

 7     rescinded.  And then, as of late September, I have been unable to use the

 8     official phone.  I don't have a piece of paper indicating what phone

 9     number I can call from that official phone because you can only call one

10     phone number.  The Registrar wants me to change the number so that it is

11     no longer the phone number of Slavko Jerkovic's law office, and I don't

12     want to do that because Slavko Jerkovic is the only one who has his own

13     law firm, law office.  Other legal associates can only be called on their

14     mobile phones or their home phone numbers because some of them have small

15     children, and one of them has a wife who is ill and a small apartment, so

16     why should I call him there in his apartment and have other legal

17     associates go there and disrupt their lives?  After all, the whole issue

18     of my legal associates is to be resolved once and for all.

19             I will never agree that Zoran Krasic is eliminated as my legal

20     associate.  This is the gist of it.  And the Prosecution can see that

21     Zoran Krasic is the most valuable legal associate that I have, and they

22     want to get rid of him at all costs.

23             JUDGE LATTANZI: [Interpretation] Mr. Seselj, if you have all

24     those practical issues with Slavko Jerkovic, then you have to appoint

25     another legal assistant for privileged communication.  There is this

Page 14275

 1     issue, there is a decision that has been rendered, and there is nothing

 2     we can do about it.  You said that before, you had to bear the

 3     consequences of it, and it was almost as a threat, that you said that,

 4     but you also have to bear the consequences yourself of not using a legal

 5     assistant for your privileged communications.  You need to have someone

 6     who is in a position to prepare briefs after having read confidential

 7     documents.  This is your choice.

 8             JUDGE ANTONETTI: [Interpretation] Mr. Seselj, I would like to add

 9     this:  Apparently -- but I'm not in the head of the Registrar and of its

10     services because they have authorised the various people without giving

11     my opinion, so I was put totally aside of this, so this has to be very

12     clear, the Registrar felt - whether he's right or wrong is another issue

13     -  the Registrar felt that telecommunication between yourself and legal

14     advisers had to be done with a legal expert or a lawyer, such as

15     Slavko Jerkovic.  Why?  Well, because the Registrar wanted to have some

16     guarantees.  By definition, a lawyer or a counsel has some ethics.  So

17     since there is a problem, perhaps you could appoint another legal

18     assistant -- appoint another lawyer.  There must be hundreds in Belgrade,

19     and amongst those lawyers that you can appoint, maybe there is someone

20     you could trust.

21             THE ACCUSED: [Interpretation] Yes, but I do not allow the

22     Registrar to decide who can be my legal associate and who cannot because

23     the very person that the Registrar doesn't trust is the one that I can

24     trust.  If the Registrar trusts somebody, well, for me that is reason

25     enough to remove him from my legal team because our interests are at

Page 14276

 1     loggerheads here.

 2             For six years, the Registrar has been using every means at his

 3     disposal to prevent me from mounting a successful defence, has been

 4     harassing me for six years.

 5             JUDGE LATTANZI: [Interpretation] But, Mr. Seselj, you know that

 6     the Registrar has the power not to accept a defence counsel, so I do not

 7     understand why you should be treated in any privileged manner as opposed

 8     to other accused.  You are always asking for privileges when we look at

 9     other accused.

10             THE ACCUSED: [Interpretation] Let me say this again.  This is yet

11     another piece of evidence of the illegality of this Tribunal.

12             Imagine a situation in Italy, where a registrar of a court tells

13     an accused, Well, you cannot hire this lawyer or that lawyer.  That would

14     be a scandal; yet now, somebody is entitled to tell me such and such a

15     person is politically -- from a political point of view cannot be your

16     lawyer, and I am opposed to it.  My Defence would not be as efficient as

17     it would be had I my associates.  But in the end, you will have plenty of

18     evidence to the effect that my trial was not fair.  I will lose, to a

19     certain extent, but you will lose so much more because this small loss

20     that I will survive -- well, because the Western powers have decided that

21     I should not leave this place alive, and there are no changes to my

22     status.  Now, the impression that you will leave about your morality in

23     the course of this trial, this is up to you.

24             So we understand each other perfectly. (redacted)

25     (redacted). Okay, fine.  I will deal with this alone.  But I will

Page 14277

 1     not be filing any interlocutory appeals.

 2             JUDGE LATTANZI: [Interpretation] Mr. Seselj, I cannot accept that

 3     you assume the Judges are here and are answering orders from Western

 4     countries.  We cannot admit this.

 5             JUDGE ANTONETTI: [Interpretation] Mr. Seselj, I wanted to say to

 6     you, and I think that we share this view with my colleagues, we do not

 7     answer to anyone, and as far as I'm am concerned, I do not answer to

 8     anyone, and it is the same for my colleagues.  You have totally

 9     independent Judges, and if they decide to acquit you, they will; if they

10     decide to give a sentence, they will, and Western powers have nothing to

11     do with this.  I'm totally free of any pressure or of any intervention,

12     and in fact since I've been here, regarding your case, I've had nothing,

13     and I would try and -- to see if anyone tried to exert any pressure on

14     me.

15             So you have a case where the Prosecutor feels there are some

16     allegations regarding yourself, so please organise your defence regarding

17     this case.  Please leave aside any political connotations which have

18     nothing to do with the case.  You have Judges that are going to look at

19     evidence through international criminal law, and from there you will have

20     the best guarantees.

21             This is not a military tribunal.  This is not a

22     politically-tainted tribunal.  This is a tribunal made of judges, judges

23     who are independent themselves, and I can assure you that I am, I have

24     always been, and it is not because I'm here at this Tribunal that I will

25     change things.  So this is your best guarantee.

Page 14278

 1             So I understand that you may have doubts, that you are asking

 2     yourself some questions, that you are questioning some actions by the

 3     Registrar.  You've done it earlier on.  This is one thing.  But there is

 4     also the fact that you have Judges.  Judges can render a decision aside

 5     from any pressure, and you can see that when Judges ask questions, we

 6     went to the bottom of things.

 7             And so this is really what I wanted to say because I do not know

 8     when we are going to see each other again because if you decide not to

 9     appeal, the decision of the Chamber will have some effects.  So this is

10     the reality as of today.

11             So, Mr. Seselj, do you want to take the floor?

12             THE ACCUSED: [Interpretation] Just one more sentence.

13             I would like to remind you, Mr. President, that as a Pre-Trial

14     Judge in 2007, you were exposed to the pressure from the Council of

15     Europe to have my trial start as soon as possible, and of course my

16     enemies had the Council of Europe make this decision, and then the trial

17     began before all the pre-trial proceedings had been completed.  Decisions

18     were not made on all interlocutory appeals, and there was no full

19     disclosure in accordance with the Rules.

20             And let me remind you that as a Trial Chamber, because the

21     Prosecution was unable to provide me with the names of some protected

22     witnesses on time, you decided that the 7th of November should not be

23     counted as the start of the trial, when the opening statement was

24     delivered by the Prosecution, but that the start date should be the 7th

25     of December, when the first witnesses were heard, and this is unheard of.

Page 14279

 1             There were other forms of pressure.  I have evidence of the

 2     political pressure exerted by the Council of Europe, orchestrated by the

 3     Western intelligence services using Tomislav Nikolic as an instrument at

 4     the very session of this body.  You do remember how vigorously I attacked

 5     the Council of Europe because of this decision.  I hope you remember

 6     that.

 7             JUDGE ANTONETTI: [Interpretation] Mr. Seselj, as a Pre-Trial

 8     Judge, I had only one objective; to make sure that the trial starts as

 9     quickly as possible.  And I can even say it again -- I have already said

10     this, but I will say it again so it is clear for everyone.  Based on the

11     indictment that was drafted at the time, the trial should have been

12     finished within six months, and there is no reason to justify that you

13     stand trial years later.  Given the evidence that had been confirmed by a

14     Judge at the time, your trial should have started very quickly.  So this

15     is the reality, and the mere fact that your trial is still going shows

16     there is a problem.  This is what I've tried to explain in the opinion

17     that I issued regarding the adjournment.

18             So now you are making the choice not to appeal.  It is your

19     choice, it is your prerogative, and I will not make any comments on this.

20     You are fully aware of the consequences, and better than anybody else you

21     know very well how things are going to work from then on.

22             So to summarise, because we will have to stop, since the witness

23     is ill - we do not know when he will be able to be brought in, so this is

24     beyond my control - it is up to the Prosecutor to see when it will be

25     reprogrammed or if it will be reprogrammed.  We do not know yet.

Page 14280

 1             So, Mr. Seselj, in its decision the Chamber had decided to see

 2     you again for pre-trial issues, so we will have the opportunity to see

 3     you again, and in the meantime we shall conclude this session, and I hope

 4     to see you again very soon.

 5                           --- Whereupon the hearing adjourned at 9.54 a.m.