Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Thursday, 7 May 2009

 2                           [Status Conference]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 11.33 a.m.

 6             JUDGE KWON:  Good morning.  Could you call the case, please.

 7             THE REGISTRAR:  Thank you, and good morning, Your Honours.  This

 8     is case number IT-03-67-R77.2, the Prosecutor versus Vojislav Seselj.

 9             JUDGE KWON:  Can I have the appearances, please.

10             MR. MacFARLANE:  Thank you, Your Honours.  My name is

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

12     curiae prosecutor in these proceedings, and with me is Lori Ann Wanlin,

13     also from Canada.  Good morning.

14             JUDGE KWON:  Good morning, Mr. MacFarlane and Ms. Wanlin.

15             Good morning, Mr. Seselj, you may be the first accused to have

16     two status conferences in a row at the same courtroom changing the

17     Trial Chamber.  And if you could state your full name for the record.

18             THE ACCUSED: [Interpretation] My name is Dr. Vojislav Seselj,

19     university professor, and the most accused individual by The Hague

20     Tribunal.  And I'm representing myself.

21             JUDGE KWON:  I take it that you are following this procedure in

22     the language you understand?

23             THE ACCUSED: [Interpretation] Yes, sir, I can.

24             JUDGE KWON:  Thank you.  The decision on allegation of content

25     and the order in lieu of an indictment were issued on 21st of January

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 1     this year.  The indictment charges the accused, Mr. Vojislav Seselj with

 2     one count of contempt of the Tribunal for knowingly and willfully

 3     interfering with the administration of justice by disclosing confidential

 4     information in violation of orders granting protective measures in a book

 5     authored by him.

 6             On 11th of February in year, Mr. Bruce MacFarlane, Queens

 7     Counsel, was appointed as amicus curiae prosecutor in this case by the

 8     acting Registrar, and the Initial Appearance of the accused was held on

 9     6th of May, 2009, where the accused pleaded not guilty.

10             That said -- 6th of March.  Thank you.

11             That said, there's one thing I would like to raise with the

12     accused, which is to inform him that the name, the title of the book,

13     remains confidential in order to avoid the danger of the identity of the

14     protected witness being revealed.  So, I tell you, Mr. Seselj, in clear

15     language not to name or reveal the title of the book during the course of

16     Status Conference or procedure in public session.

17             The Chamber, this Chamber has convened this Status Conference to

18     deal with any preliminary issues before starting a trial and hear any

19     issues to raise from the parties.

20             Until yesterday, this morning, there was only one outstanding

21     motion pending before the Chamber pertaining to the disclosure.  However,

22     thanks to the decision issued this morning, filed this morning by the

23     Trial Chamber III, most of the issues have been resolved, I take it.  I

24     wonder whether Mr. MacFarlane has received the decision of the

25     Trial Chamber III?

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 1             MR. MacFARLANE:  I'm sorry, Your Honours, I have not yet received

 2     it.  I've been in meetings all morning and I didn't realise a decision

 3     had been issued.

 4             JUDGE KWON:  My information is that the Chamber has allowed

 5     access to all the transcript and relevant records of the case thereby

 6     resolving most of the issues you raised.

 7             MR. MacFARLANE:  Thank you, Your Honours.  I look forward to

 8     reviewing that decision immediately upon completion of this

 9     Status Conference.

10                           [Trial Chamber confers]

11             JUDGE KWON:  The Chamber is wondering if, to expedite things, if

12     you are handed over the decision right now and given, say, about

13     20 minutes, whether you can deal with the issues later on?

14             MR. MacFARLANE:  Thank you, Your Honours.  I fully expect that I

15     will be able to do that with about 20 minutes.  Perhaps even less.

16                           [Trial Chamber confers]

17             JUDGE PARKER:  Mr. MacFarlane, would I be correct in assuming

18     that with your Canadian heritage that you'll be able to read the decision

19     which is in French?

20             MR. MacFARLANE:  Between my colleague and I, with our Canadian

21     background and heritage, we'll be able to work our way through the

22     decision, but I'm grateful for the advance advice in that respect.

23             JUDGE KWON:  I'm not sure whether Mr. Seselj can read the

24     decision in French, but we will make sure that decision should be

25     disclosed to you as well.  We'll rise for 20 minutes.

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 1                           --- Recess taken at 11.40 a.m.

 2                           --- On resuming at 12.04 p.m.

 3             JUDGE KWON:  Our hearing is resumed.

 4             Mr. MacFarlane, having seen that decision of the

 5     Trial Chamber III and the response, the response from the OTP, I wonder

 6     whether there are remaining issues on your part to pursue further?

 7             MR. MacFARLANE:  Thank you, Your Honours.  At the outset I'd like

 8     to thank the Registry, not only have we reviewed the transcript but we

 9     now have possession of all the materials referred to in the order that

10     was arranged during the course of the recess, so I'm very grateful for

11     that.

12             I believe that this meets the request and the needs of the

13     Prosecution.  The only qualification that I would add is that under the

14     heading "Ordonne," in the second paragraph there is a reference to the

15     OTP forwarding materials to -- perhaps through the Registry to the

16     amicus, and on reviewing that material, there may well be further

17     questions and there might be further avenues.  I won't know that until I

18     receive the materials from the Office of the Prosecutor.  But subject to

19     that perhaps minor caveat, it appears that I have the materials that I'll

20     need to move forward in this case.

21             JUDGE KWON:  And the Chamber didn't have enough time to study the

22     decision by the Trial Chamber III in full either, but let's move forward

23     on that basis.

24             I will turn to briefly on disclosure issues.  On 27th of April,

25     the Trial Chamber ordered the ex parte status of supporting materials,

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 1     and I take it that those materials have been disclosed to the accused?

 2             MR. MacFARLANE:  That's correct, Your Honours.

 3             JUDGE KWON:  Is there any issue relating to translation?

 4             MR. MacFARLANE:  Yes.  There are -- continue to be a number of

 5     issues relating to translation.  There's a couple of points I'd like to

 6     make, Your Honours.  The assignment in this case actually has three

 7     components to it.  One relates to the preparation of the trial.  The

 8     second involves an investigative component because there was no

 9     investigation prior to the order in lieu of indictment.  And the third

10     involves the redactions referred to in the decision of this

11     Trial Chamber.

12             The translation issue arises in each of those three components.

13     We are working our way through the issues.  And in terms of disclosure,

14     disclosure is complete, there's one final document which is being

15     provided to the accused today, and it involves a chart concerning the

16     publication in question, the book.  And this chart is a combination of

17     both English and B/C/S.  The B/C/S will allow the accused to trace

18     through his own book so that the portions relating to his book are in

19     English, but it allows him to understand where he needs to go to in his

20     own book, so it was felt it was unnecessary to translate that part.  That

21     is being provided to the accused today through the Registrar.

22             JUDGE KWON:  What issues alive are there in relation to

23     investigation referred to?

24             MR. MacFARLANE:  The investigation largely involves acquisition

25     of the documents and reviewing the documents and assessing whether or not

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 1     there's further documents that are necessary.  With the order of today,

 2     we will be able to move forward in a more complete way on that front, so

 3     I would expect that we'll be well positioned to complete the

 4     investigation.

 5             But that's -- in essence the nature of the investigation is the

 6     review of the initial material that was provided and then assessing what

 7     further documents or statements or materials were needed and then if they

 8     are covered by an order of confidentiality, taking the appropriate steps

 9     to obtain them.  So that's been the nature of the investigation thus far.

10             JUDGE KWON:  I meant to come to this issue later on, but how do

11     you see the issues in this case?  What issues there are alive in relation

12     with respect to this indictment, as you see it?

13             MR. MacFARLANE:  In terms of the indictment and the Prosecution

14     component of the three that I was referring to earlier, the main issues

15     that we are looking at the moment involve an analysis of the manner in

16     which confidential information was disclosed and the linkages that are

17     sprinkled throughout the book and that involved a fair bit of work

18     because the translation -- an independent translation was necessary.  I

19     say independent, independent of the Office of the Prosecutor.

20             So that's the -- been the bulk of our work is to obtain the

21     translations and then try to piece together what is in essence a jigsaw

22     puzzle of references, and it's been quite challenging.  We are working

23     our way through that, but that was necessary in order to understand

24     whether and at what point and in what way protected witnesses were

25     identified.  It's in essence one large jigsaw puzzle that we are now

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 1     putting together.

 2             JUDGE BONOMY:  Sorry, the indictment, Mr. MacFarlane, says that

 3     the book contains numerous references to witnesses.  It gives their

 4     pseudonyms and then says "including their real names, occupations and

 5     places of residence, which enable the identification of these witnesses."

 6     Are you suggesting that's an oversimplification of what seems a very

 7     straightforward allegation?

 8             MR. MacFARLANE:  I'm not sure if it's oversimplification or not,

 9     I don't believe it is, but the book is 1400 pages in length, the

10     electronic book, and the direction was to carry the Prosecution

11     independently, and we've done that, so our reliance upon OTP analysis has

12     not been necessary.  But the task of putting together all of the various

13     pieces with a view to understanding when and under what circumstances and

14     where the disclosures were made has been a time-consuming process.  It's

15     in part a function of the fact that the book is a very lengthy one.

16             JUDGE BONOMY:  I am afraid I'm not understanding this.  Either

17     there are clear statements of the identity of these protected witnesses

18     in a book published under the name of the accused or there are not.  And

19     if there are, what else is it that the Prosecution would intend to prove

20     other than the circumstances in which the accused came to know that the

21     material was confidential?

22             MR. MacFARLANE:  Thank you, Your Honours.  I think that

23     there's -- I could put it in this way, there's really two points that

24     need to be made.  First of all, there's -- this is not a book where

25     there's simply a stand-alone passage which identifies protected witness

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 1     by a name and puts everything together in -- even in one page.  The book

 2     has to be looked at as a whole.  And that's been -- that's been the

 3     challenge is going through the entire book because there are various

 4     references at various points and unless you can link all of those

 5     references together, sometimes you don't know that the reference is being

 6     made to a protected witness.

 7             As an example, in some instances a -- well, it's probably

 8     unnecessary to go into illustrations in open proceedings, but suffice it

 9     to say that one has to take a look at the book as a whole in order to

10     understand how all the various pieces link together.

11             And secondly, second point I wanted to raise was that a very

12     important component in understanding whether and under what circumstances

13     the accused revealed confidential information we had to obtain the

14     statements.  And that has just been provided to us today.  So that will

15     allow us to complete the investigative task and get ready for trial.  But

16     those are two important factors in understanding the nature of the

17     investigation and the preparation for trial.

18             JUDGE BONOMY:  Remind me please, are you saying that the book has

19     been translated so far as necessary or has not yet?

20             MR. MacFARLANE:  I made arrangements to retain the services of an

21     expert translator who has gone through every line and every paragraph and

22     every page of the book.  He provided advice on those portions of the book

23     that potentially identified either directly or indirectly, and then once

24     that advice was received, we have been making arrangements for a formal

25     translation by staff translators within the Tribunal.  So in that sense,

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 1     the book has been completely reviewed.  We have not arranged for a

 2     written translation of the entire book.  That was thought to be

 3     impractical.  We are arranging to have the relevant portions of the book

 4     translated.  The vast majority of what has been identified has been

 5     translated.  We just obtained what is probably either the last or the

 6     penultimate group of pages that we need yesterday, yesterday.  So

 7     certainly the vast majority of the pages that require translation has

 8     been done.  There might be some residual pages, they won't be many in

 9     numbers but we are very close.

10             JUDGE BONOMY:  So there's a disclosure issue here as well because

11     the English translations would have to be disclosed to the accused.

12             MR. MacFARLANE:  That's an issue that we'll -- we'll have to

13     consider because the translations relate to the very publication of the

14     accused, so the chart that's been provided today makes that link.  It in

15     essence says --

16             JUDGE BONOMY:  But you need to give him the English version.

17     That's all I'm saying.  I appreciate that you can link it and don't

18     necessarily need to do certain things, but whatever is going to be

19     available in English will have to be disclosed to him.  So you'll have to

20     hang your colours to the mast pretty quickly on that front.

21             MR. MacFARLANE:  The -- I appreciate the issue that's been raised

22     by the Chamber.  The accused's position, as I understand it, is that he

23     wants all disclosure in B/C/S.  So we kind of go around in a bit of a

24     circle.

25             JUDGE BONOMY:  Yeah, but this is a situation where we are dealing

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 1     with something in B/C/S that the Chamber has to understand in English,

 2     and the accused is entitled to have it in English.  What he does with it

 3     is entirely a matter for him.  But he plainly is entitled to it and it

 4     would not be surprising if issues over the translation actually arose in

 5     the process.

 6             MR. MacFARLANE:  I appreciate the comments of the Chamber and I

 7     will give them very, very careful consideration.

 8                           [Trial Chamber confers]

 9             JUDGE KWON:  I'll give you the floor very soon, Mr. Seselj.

10     Could you wait a minute.

11             Mr. MacFarlane, I take it that you didn't understand our

12     indictment and order in lieu of indictment to mean that you should

13     investigate all the contents of the book and identify any other passages

14     which reveal the identity of the protected witness and include them in

15     the charges or propose the redaction of those parts?

16             MR. MacFARLANE:  I guess that there's really two separate issues

17     here.  One is the trial, and the order in lieu of indictment.  The other

18     was what I'll refer to as the redaction project.  And certainly on the

19     redaction side, it was my understanding that the Chamber was seeking

20     advice on those areas of the book that ought to be redacted and we've

21     proceeded on that basis starting with page 1 straight through.

22             JUDGE KWON:  The Chamber meant only those pages referred to in

23     the indictment, in the decision should be examined by the amicus.  That

24     was our Chamber's understanding.

25             That said, Mr. Seselj, do you have anything to say?

Page 24

 1             THE ACCUSED: [Interpretation] Yes.

 2             THE INTERPRETER:  Microphone, please.

 3             [French on English channel]

 4             THE ACCUSED: [Interpretation] -- it should be very --

 5             JUDGE KWON:  Could you try again.  Could you repeat, start again.

 6             THE ACCUSED: [Interpretation] For any serious lawyers, it must be

 7     extremely surprising that first indictment is issued and then it is

 8     followed by investigations.  It should have been done in reverse order.

 9     Investigations should have come first and the result of the investigation

10     would be an indictment.

11             First we have the indictment and then we have an amicus curiae

12     who initiated investigation after the fact.  This raises the question

13     about how to conduct these proceedings.  Since all the charges here are

14     based on a book, it requires for the entire book to be translated.  One

15     cannot use only excerpts from a book.  You cannot extract a quote from a

16     book unless you present the entirety of the book.

17             I'm not quite sure that the Prosecutor is fully aware of the

18     structure of the book. (redacted)

19   (redacted)

20   (redacted).  This part of the book, as a public document, was submitted to

21     the Trial Chamber with the objection to indictment number 3.  I'm not

22     quite sure but it's not important.

23             This particular document that has 300 pages -- okay, you are not

24     interested maybe in this so I'll proceed.

25             JUDGE KWON:  If you are going to refer to the content of the book

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 1     or speak in the way the title of the book can be revealed to the public,

 2     we'll go into private session.  So your reference to the place will be

 3     redacted and if you could bear that in mind.

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12             I'm not going to mention either the name of any protected

13     witnesses or the title of the book, and I guarantee that to you.

14             JUDGE KWON:  This passage will be redacted as well.  So please

15     proceed.

16             THE ACCUSED: [Interpretation] All right.  You may as well redact

17     everything.  I was just trying to be helpful with the structure of the

18     book.  Since you don't need my help, I'm not going to deal with that any

19     longer and I will leave it to your own devices, you and the OTP to deal

20     with that.

21             In addition to my first objection that the indictment preceded

22     the investigation and that the whole book has to be translated in order

23     to be a subject of the proceedings, I would like to say one more thing

24     and that is that the disclosure of supporting documents, according to

25     Rule 66(i), has not been done completely.  According to the Rules of

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 1     Procedure and Evidence, this should have been done one month after an

 2     entering of plea.

 3             This has been disclosed to me only partially.  According to the

 4     Rule 66(i), I was entitled to disclosure of all documents.  It also

 5     provides the possibility for a number of documents not to be disclosed

 6     but clearly reasons why this can be done are stipulated therein.

 7             Since all the documents supporting the indictment have not been

 8     disclosed to me, primarily the request by the OTP, which still remains ex

 9     parte, and some of the appendices to this request such as document 4, 5,

10     6, 7, and 8, et cetera, that is to say, I still don't know what am I

11     going to defend myself fully against.

12             And for that reason I'm not going to raise any objections to the

13     indictment or the order in lieu of this indictment.

14             The OTP failed to do this within the time-limit for various

15     reasons, and one of the reasons is that you as the Trial Chamber

16     maintained the position of the OTP that some of these documents should

17     remain ex parte and for that reason I'm not going to object to this

18     indictment.

19             I have been denied the possibility to use these documents in the

20     proceedings and this will only give you time, extra time for you to

21     institute the proceedings at an earlier date.  This is what I had to say

22     at this point.

23             JUDGE KWON:  The Chamber made it sure to -- that all the relevant

24     material, relevant for this case, be disclosed to you as supporting

25     material.  And my understanding is that has been done.  The other

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 1     materials referred to, in my understanding, have nothing to do with this

 2     case, and that's totally separate -- related to a separate matter.  So

 3     that resolves the supporting -- disclosure of supporting material.

 4     And --

 5             THE ACCUSED: [Interpretation] May be allowed to say one more

 6     thing?

 7             JUDGE KWON:  Very well.

 8             THE ACCUSED: [Interpretation] I think that all the material

 9     mentioned here must have something to do with these proceedings and the

10     case because why else would it be attached to the request made by the

11     Prosecutor.  So that is a justified assumption on my part, that

12     everything that is there has to do with this case.

13             Now you are telling me that everything that is ex parte does not

14     have anything to do with this case.  Now, if that is the case, why should

15     it be here at all under the ex parte status?  There's no reason for it to

16     be contained there.  Why should it be ex parte at all?  Why wasn't it

17     just thrown out of the case?  There's no logic there.  On the one hand,

18     it is in this case and has the status of ex parte, and you all know what

19     it is, you the Judges know, the Prosecutor knows, I am the only one who

20     doesn't know.  And on the other hand, you tell me those are matters which

21     have nothing to do with this case.

22             So there's no logic as far as I'm concerned there.  And that's

23     why I'd like to ask you to explain that to me.  Why would it be included

24     in the case if it has nothing to do with the case?

25             JUDGE KWON:  All I can say, Mr. Seselj, at this moment, those

Page 28

 1     materials have nothing to do with this case and we'll proceed with this

 2     case.  That's as simple as that.

 3             THE ACCUSED: [Interpretation] And you want me to believe you at

 4     your word?

 5             JUDGE KWON:  The Chamber will make sure every relevant material

 6     be disclosed to the accused.

 7             As for the translation, Mr. MacFarlane, you commented that most

 8     of the translation has been done.  That's good news.  Do you -- as for

 9     the 66(a)(ii) disclosure, do you intend to call any witnesses for the

10     purpose of prosecution?

11             MR. MacFARLANE:  I'm not in a position to answer that.  I need to

12     take a look at the material that was -- that will be provided to me and

13     has been provided to me this afternoon.  I'll make an assessment after

14     that.

15             JUDGE KWON:  The Chamber is minded to start this trial pretty

16     soon and given that, how much time do you think you need to prepare all

17     these?

18             MR. MacFARLANE:  Given the fact that we now have the materials

19     that we were seeking, I believe that we could proceed to be ready for

20     trial with dispatch and I would expect that we would be in a position to

21     proceed in the latter part of June.

22                           [Trial Chamber confers]

23             JUDGE KWON:  The Chamber's preference is to hold the trial as

24     soon as possible, i.e., in late May, this month.  And to that end, the

25     Chamber would like you to file a 65 ter list, witness list, if any, as

Page 29

 1     well as exhibit list in a week's time, by the end of next week, and

 2     indicate to the Chamber whether the amicus prosecutor is up to start the

 3     trial as early as late May.

 4             Now, do you have anything to say, Mr. MacFarlane?

 5             MR. MacFARLANE:  No, Your Honours, simply to indicate that I will

 6     certainly follow the direction of the Chamber.

 7             JUDGE KWON:  Now I turn to Mr. Seselj.  If I can ask the same

 8     question put to the Prosecution, i.e., what issues do you see in this

 9     case on your part?

10             THE ACCUSED: [Interpretation] Well, I've already told you the

11     problems that I have.  The problem of disclosure first because some

12     material has been proclaimed ex parte material.  I have no other

13     problems.  I'm trial-ready as of tomorrow.  I'm ready to go to trial

14     straightaway.  I plan to call five witnesses, but I might give up on

15     them.  If the Prosecution doesn't call witnesses, then I might not call

16     any witnesses either.  If we are just going to discuss the book.  I'm

17     ready to go to trial straightaway.

18             JUDGE KWON:  Sometimes a Chamber asks the parties whether there

19     is any agreed fact or not, but we have transcript reference in which you

20     admitted that authoring the book, so do you admit that you authored that

21     book in question?

22             THE ACCUSED: [Interpretation] Not only do I accept the fact that

23     I am the author of the book, I'm very proud of being the author of that

24     book, and it is thanks to these legal proceedings that there is a lot of

25     interest in the book.  On my internet site several thousand copies have

Page 30

 1     been photocopied and reproduced, so I'm very satisfied.  I'm very

 2     satisfied to have been the author of that book.  So that is an

 3     indubitable fact.  That's how things stand.

 4             JUDGE KWON:  Very well.  Thank you, Mr. Seselj.

 5             I think I exhausted all the agenda I noted down but whether there

 6     are any -- just a second.

 7                           [Trial Chamber confers]

 8             JUDGE KWON:  I was about to ask whether there's any issues on

 9     your part to raise, Mr. MacFarlane?

10             MR. MacFARLANE:  Thank you, Your Honours.  Just one issue.

11     Reference has been made to preparation of witness lists and exhibit list

12     but there's no reference to a pre-trial brief.  Was the Chamber going to

13     provide any direction in that respect or is the pre-trial brief

14     essentially waived in this particular case?

15             JUDGE KWON:  The rules are applied mutatis mutandis to the

16     contempt proceedings, so I wonder whether that's necessary in this case.

17     I will consult with my colleagues.

18                           [Trial Chamber confers]

19             JUDGE KWON:  The Chamber is of the view that it is not necessary.

20             MR. MacFARLANE:  Thank you, Your Honours.

21             JUDGE KWON:  Mr. Seselj, do you have anything to raise with the

22     Chamber?  Yes, please.

23             THE ACCUSED: [Interpretation] I would just like to repeat my

24     request to be allowed to sit up front in the first row, which is the

25     Defence counsel's position, and as I'm defending myself, it's very

Page 31

 1     important that visually I be on par and have equal status as the

 2     Prosecutor in the courtroom.  And I've already made that request, I told

 3     Mr. Parker that at my Initial Appearance.  So as the Trial Chamber, it is

 4     up to you to rule on that request.  Because you know as judges how

 5     important it is that both sides in the proceeding are not only on a

 6     footing of equality generally speaking but visually too.

 7             JUDGE KWON:  The Chamber noted your request made at the previous

 8     Status Conference, as well as the ruling Judge Parker made at the time

 9     and we do not defer from that position, i.e., the Chamber finds no reason

10     to depart from the general practice of this Tribunal.

11             That said, we'll rise and then after having received and seen the

12     65 ter lists, the parties will be notified as to the date of trial in due

13     course.

14                           --- Whereupon the Status Conference adjourned

15                           at 12.44 p.m.