in trial chamber iii of the icty

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INTERNATIONAL CRIMINAL TRIBUNAL Case no. IT-03-67 FOR THE FORMER YUGOSLAVIA

IN TRIAL CHAMBER III OF THE ICTY

Before: Judge Jean-Claude Antonetti, Presiding Judge Mandiaye Niang Judge Flavia Lattanzi Registrar: John Hocking Date: 20 November 2013

Submission 513

T H E P R O S E C U T O R v.

Professor VOJISLAV [E[ELJ

OPINION CONCERNING THE DECISION OF TRIAL CHAMBER III

ON CONTINUATION OF PROCEEDINGS The Prosecutor Mathias Marcussen The Accused Professor Vojislav [e{elj Expert Team Assisting the Defence Zoran Krasi} Dejan Mirovi} Milan Terzi} Nemanja [arovi} Vjerica Radeta Jadranko Vukovi} Miroljub Ignjatovi} Nata{a Jovanovi} Petar Joji} Ljiljana Mihajlovi} Ognjen Mihajlovi} Filip Stojanovi}

PUBLIC/JAVNO61163IT-03-67-T

D61163 - D6112727 November 2013 AJBCS original received 20 November 2013Filed as PUBLIC pursuant to Trial Chamber’sinstruction.

61163

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Submission no. 513 - REG39004.doc/drsc vi 2

INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

T h e P r o s e c u t o r v.

Professor Vojislav [e{elj Case No. IT-03-67

Submission 513

OPINION CONCERNING THE DECISION OF TRIAL CHAMBER III ON CONTINUATION OF PROCEEDINGS

I. Introduction

The Indictment against Professor Vojislav [e{elj was issued on 14 February

2003 (case no. IT-03-67) in connection with the events of the period “from on or about 1 August 1991” until “at least September 1993”. On 24 February 2003, [e{elj travelled to the Netherlands and, immediately upon landing at the Amsterdam airport, he was arrested and escorted to the Detention Unit of the International Criminal Tribunal for the Former Yugoslavia (ICTY).

II. Disqualification of Judge Frederick Harhoff from Case IT- 03-67

1. On 9 July 2013, Dr Vojislav [e{elj submitted a motion for disqualification

of Judge Frederik Harhoff from the case being conducted against him before the ICTY for apparent bias and his publicly expressed position that anyone indicted before the ICTY must also be convicted. A Chamber of the ICTY, the so-called Panel of Judges, decided on 28 August 2013 that Judge Harhoff be disqualified from hearing case no. IT-03-67. Judge Harhoff submitted a request for clarification of the decision to disqualify him. Interestingly, acting in contravention of their own rules, both the Office of the Prosecutor of the Tribunal and the remaining Judges of the Chamber, Judge Jean-Claude Antonetti and Judge Flavia Lattanzi, filed requests for clarification of this Decision. The remaining Judges thus openly sided with the disqualified Judge Harhoff. On 7 October 2013, the Chamber denied these requests, and the decision to disqualify Judge Harhoff remained in force.

2. On 3 September 2013, Judge Carmel Agius, Acting President of the ICTY, issued the Order following Decision of the Panel to Disqualify Judge Frederik Harhoff. In this Order Judge Agius stayed the assignment of another Judge to sit in the place of Judge Frederik Harhoff, deeming it “appropriate to stay the assignment of another Judge to sit in the place of Judge Frederik Harhoff, until such time as the remaining Judges of the Chamber have: (i) reported to me, following consultation with the Accused on the question of whether to rehear the case or continue the proceedings; and (ii) decided, in the event that the Accused withholds his consent to the continuation of proceedings, whether or not to nonetheless continue the proceedings with a substitute Judge.” Judge Agius noted that Rule 15 of the Rules does not address the impact on a case of the replacement of a Judge and that, “considering that, while the present case is at a more advanced stage than that envisaged by Rules 15 bis(C) and 15 bis(D) of the Rules and cannot strictly speaking


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be described as part-heard, in the interests of fairness and transparency, the procedures applicable under Rules 15 bis(C) and 15 bis(D) of the Rules ought to be applied to it mutatis mutandis.” In the Order, Judge Agius further said: “considering that Rule 15 bis(C) of the Rules provides for consultation with the Accused on the question of whether to rehear the case or continue the proceedings, and that the remaining Judges of the Chamber are best placed to proceed with such consultation, given their familiarity with the case and their long-standing relationship with the Accused.” Rather than acting on the Order of Judge Agius, as was their duty, the remaining Judges of the Chamber, Jean-Claude Antonetti and Flavia Lattanzi, filed on 3 September 2013 a request for urgent clarification of the of the panel’s decision to disqualify Judge Harhoff. In so doing, the remaining Judges joined the Office of the Prosecutor which, on 28 August 2013, filed a motion for reconsideration of the decision of the panel.

3. Since the remaining Judges did not act on the Order of the Acting President of the ICTY, Judge Agius, on 31 October 2013 he issued the Order Assigning a Judge Pursuant to Rule 15. In this Order, Agius, inter alia, says, “Recalling the order issued by myself on 3 September 2013, in which I stayed the assignment of another Judge to sit in the place of Judge Frederik Harhoff pursuant to Rule 15(B)(ii) of the Rules and, applying Rule 15 bis of the Rules mutatis mutandis, requested the remaining Judges of the Chamber seised of the present case to: (i) report to me, following consultation with the Accused on the question of whether to rehear the case or continue the proceedings; and (ii) decide, in the event that the Accused withholds his consent to the continuation of proceedings, whether or not to nonetheless continue the proceedings with a substitute Judge (“Order”). Noting that Judge Jean-Claude Antonetti and Judge Flavia Lattanzi did not agree with the application mutatis mutandis of Rule 15 bis of the Rules, Judge Agius goes on to say in his Order: “Considering that, while in my view, the interests of fairness and transparency are indeed better protected by application of the regime envisaged in Rule 15 bis of the Rules, and that this Rule may correctly be applied mutatis mutandis, it is ultimately for the Judges seised of the present case to determine whether or not the trial shall proceed,” and adds, “emphasising, however that, in my view, the Judges seised of the present case should consult with the Accused on the question of whether to rehear the case or to continue the proceedings with the newly assigned Judge.” 4. Thus, in both his Orders Judge Agius said that Judges should consult with the Accused as to whether it is necessary to rehear the case of Dr [e{elj or to continue the proceeding with the newly assigned Judge. These Orders are clearly not considered binding by Judge Jean-Claude Antonetti and Judge Flavia Lattanzi who, as the Presiding Judge and a member of the Chamber, participated over the period of five years in the violation of basic human and procedural rights of Vojislav [e{elj. They resumed doing so on 13 November 2013 when, together with Judge Niang, they issued the Decision Inviting the Parties to Make Submission on Continuation of Proceedings. They refused to act on the order of Judge Agius who explicitly instructed them to consult with the Accused. Consultations entail dialogue with the Accused and publicly at that, i.e. at a status conference. The position that status conferences are not held, i.e. that it is not a practice to hold them in the period between the closing arguments and the rendering of the Judgment is unacceptable and in contravention of Rule 65 bis(A) of the Rules which provides that, “A Trial Chamber or a Trial Chamber Judge shall convene a status conference within one


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hundred and twenty days of the initial appearance of the accused and thereafter within one hundred and twenty days after the last status conference: (i) to organize exchanges between the parties so as to ensure expeditious preparation for trial; (ii) to review the status of his or her case and to allow the accused the opportunity to raise issues in relation thereto, including the mental and physical condition of the accused.” It is therefore possible not to hold a status conference up to four months before the Judgement is rendered, but Vojislav [e{elj has been waiting for the Judgement for almost 18 months with complete uncertainty as to whether it will eventually be rendered. In addition, the status of the proceedings is quite uncertain at present, and the matter can only be discussed at a public session. This mess-up, which the Trial Chamber made away from the public eye, was just another in a litany of violations of [e{elj’s basic rights before the ICTY. Judge Jean-Claude Antonetti, Judge Flavia Lattanzi and the newly assigned Judge Niang are under the obligation to report to Judge Agius following consultations with Vojislav [e{elj, not a submitted opinion, to issue a decision on the further course of the proceedings. Judge Jean-Claude Antonetti and Judge Flavia Lattanzi have demonstrated incredible bias in relation to the disqualified Judge Harfoff. They came out in his defence without any legal grounds and asked that he be reinstated in the Vojislav [e{elj case, so the question logically arises as to whether they too hold, like the disqualified Judge Harfoff, that all ICTY indictees must also be convicted and whether five years ago, when the trial against Dr [e{elj commenced, they knew that they would convict him regardless of the evidentiary proceedings. Did they decide the sentence at the time too? Judge Antonetti especially took the side of Harhoff; he believes that perhaps proceedings should be initiated against those who published the letter of Judge Harhoff which led to his elimination from the [e{elj case. In the opinion of Judge Antonetti, it is not Harhoff who should be held responsible for admitting that he in fact does not recognise the presumption of innocence, but those who published that. This is too much, even coming from Antonetti. 5. Since the disqualified Judge Harhoff served at the Trial Chamber throughout the trial proceedings conducted before the ICTY against Vojislav Šešelj, it is clear that the proceedings can no longer continue. Judge Harhoff took part in the issuing of all the decisions of Trial Chamber, and this renders every step taken to date in the proceeding null and void. He has not been disqualified only from the process of issuing the Judgement, which would allow for a conclusion to be reached all too easily that someone else can replace him in this part of the proceedings. His bias in case IT- 03-67 was established beyond question, and the ICTY Chamber allowed the Motion of Professor Vojislav [e{elj for his disqualification. It is logical that Harhoff’s bias did not occur at the time of submission of the Motion for his disqualification nor at the time of issuing of the decision for his disqualification. The bias of Judge Harhoff has been established and cannot be eliminated by replacing the biased Judge with some other judge. His bias certainly influenced the other Judges of the Chamber. It is probable that some separate opinions in the course of the proceedings were triggered by his unquestionable bias by means of which he did or could have infected the remaining judges of the Chamber. By declaring publicly his position about the accused before the ICTY, Harhoff did not demonstrate his momentary bias, but his attitude which makes him a biased Judge. It is clear that proceedings were conducted before a biased judge in their entirety and that this Judge substantially influenced the presentation of evidence during the proceedings. The best proof that Judge Harhoff nurtured bias among the


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other Judges too is the fact that they came to his defence without any grounds whatsoever and sought to have him reinstated to the Chamber even though they are not a party to the proceedings. This is why there is reasonable doubt as to whether the remaining Judges of the Chamber can continue to make impartial and just decisions in the case against Vojislav [e{elj.

III Assigning Judge Mandiaye Niang 6. On 31 October 2013, the acting President of the ICTY, Judge Carmel Agius, issued a decision assigning Judge Mandiaye Niang as a substitute for the disqualified Judge Harhoff. It is legally impossible for a newly assigned Judge to join the proceedings automatically and take part in the drafting of the Judgement. Judge Niang has not spent a single day participating in the proceedings. He did not take part in the examination of a single witness. A Judge cannot take part in the drafting of the Judgment without having examined witnesses. A Judge must put questions to witnesses, observe their testimonies and the manner of testifying and then draw conclusions on the veracity of testimonies based on these external effects. If Judge Niang were to be allowed to join the proceedings in the Vojislav [e{elj case, that would completely devalue the institute of witness in international criminal law. Judge Niang has not read the evidence admitted; he has not read the submissions filed in this case and has not read the decisions rendered in the course of the proceedings, nor has he read the interlocutory decisions rendered in respect of those. Judge Niang could not have read the trial transcript, and he will not be able to read all that even in a year; perhaps he could possibly join the remaining Judges in the Trial Chamber if a decision were to be taken to hold a retrial in the case against Vojislav [e{elj. 7. Judge Niang rather carelessly accepted the decision to serve as a newly assigned Judge in the [e{elj case. Perhaps he did it with full awareness and with a view to, like all the other Judges in the Vojislav [e{elj case, continuing to violate his guaranteed human and procedural rights. This is also a possible reason why he accepted to take part, together with Judge Jean-Claude Antonetti and Judge Flavia Lattanzi, in issuing the Decision Inviting Parties to the Proceedings to Make Submissions on Continuation of Proceedings rather than holding public consultations with the Accused, as requested by Judge Agius, Acting President of the ICTY in this case. In addition, Judge Niang cannot physically fulfil the obligations he has taken on. Since 6 November 2013, he has been sitting in the Appeals Chamber in the Popovi} et al. case and cannot familiarise himself even with the files from this case, which is quite extensive and involves five Accused, and the Judgment of the Appeals Chamber in the Popovi} et al. case is expected in mid-2014. 8. Judge Agius insisted in his Orders of 3 September and 31 October 2013 on the application of Rule 15 bis of the Rules mutatis mutandis in the proceedings being conducted against Vojislav [e{elj: “Considering that Rule 15 of the Rules does not, however, address the impact on a case of the replacement of a Judge, or set out any procedures to be followed in the event of such replacement.” Judge Agius rightly observed that Rule 15 of the Rules is exiguous and that its application does not solve the problem brought on by the years of abuse of process in case IT-03-67. Rule 15 bis must be applied automatically mutatis mutandis in the interests of justice and fairness. Rule


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15 bis(C) of the Rules provides: “If a Judge is, for any reason, unable to continue sitting in a part-heard case for a period which is likely to be longer than of a short duration, the remaining Judges of the Chamber shall report to the President who may assign another Judge to the case and order either a rehearing or continuation of the proceedings from that point. However, after the opening statements provided for in Rule 84, or the beginning of the presentation of evidence pursuant to Rule 85, the continuation of the proceedings can only be ordered with the consent of all the accused, except as provided for in paragraphs (D) and (G).” Every lawyer will draw a conclusion that the application of this Rule mutatis mutandis is the only legally correct and logical option and that anything else would constitute abuse of process. Given that in the [e{elj case there are no other Accused, continuation of the proceedings may be ordered only with his consent. Rule 15 bis(D) provides that: “If no appeal is taken from the decision to continue proceedings with a substitute Judge or the Appeals Chamber affirms that decision, the President shall assign to the existing bench a Judge, who, however, can join the bench only after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings.” The application of Rule 15 bis mutatis mutandis is also a guarantee of the public character of the proceedings, because this provision actually points to the requirement that the Accused take part in the procedure of assigning a new Judge and after public consultations with the Accused. Assigning Judge Niang to the Chamber without first complying with the requirements of Rule 15 bis and possibly ordering continuation of the proceedings would be a complete denial of transparency and fairness. If a legal situation is not precisely envisaged by a certain legal rule, legal theory and practice point to the application mutatis mutandis of the rule most closely governing that situation and thus, this points to the need to apply Rule 15 bis in the procedure of assigning a new Judge in the case of Vojislav [e{elj. 9. It is quite clear that the proceedings before the ICTY against Dr Vojislav [e{elj cannot continue with a modicum of fairness and that the only legally possible way out of this situation is to halt the proceedings with immediate effect and release Professor [e{elj. The newly assigned Judge should under no circumstances accept to take part in this farce in which his presence in the Chamber would amount merely to drafting and pronouncing the Judgement because a Judge before whom not a single item of evidence has been presented cannot have a view about the case. Judge Niang could sit in a Chamber rehearing the entire case, but in the [e{elj case that would constitute a grave breach of international procedural law because even at this point not a single legal argument exists to justify 11 years of detention which is not warranted by public interest. If there is no public interest, it is logical that there is some obscure interest, and this leads to the conclusion that a political process has been conducted against [e{elj over many years, during which all his human and procedural rights have been violated.

IV. Violations of basic human and procedural rights of Dr Vojislav [e{elj

10. The Indictment against Professor Vojislav [e{elj was raised 10 years after the period to which the Indictment pertains and for which it cannot be established with precision neither when it begins nor when it ends. This is a political Indictment, as confirmed by former Chief Prosecutor of the ICTY, Carla Del Ponte, in her book


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Madame Prosecutor published in 2008, where she disclosed that the then Prime Minister of Serbia, Zoran \in|i}, asked her to indict [e{elj. Carla del Ponte admitted: “\in|i} requested only one thing in connection with [e{elj: 'Take him away and do not bring him back.'” Although it was clear from the beginning that there were political reasons behind the Indictment and that the Indictment was drafted irresponsibly and unprofessionally, Dr [e{elj went to The Hague, and violations of his procedural rights started at the Amsterdam airport. Professor [e{elj was arrested on the spot and taken to the Detention Unit of the ICTY pursuant to the Order of Trial Chamber II of 26 February 2003, but he was never served a decision on the beginning of detention nor on the grounds to extend the detention for nearly 11 years, clearly without a valid legal basis. It is clear that at work in this case is the arbitrary and abnormal – unusual, to say the least – detention motivated by political reasons. With such arbitrary and legally ungrounded length of detention, the Judges of the ICTY breached the European Convention on the Protection of Human Rights and Fundamental Freedoms whose Article 5, paragraph 1, lays down the conditions under which the right to liberty may be restricted. This is possible “after conviction by a competent court, /.../ non-compliance with the lawful order of a court, /…/ to prevent his committing an offence or fleeing after having done so, /…/ the detention of a minor, /…/ for the prevention of the spreading of infectious diseases, /…/ with a view to deportation or extradition.” It is obvious that none of the above can be applied to Dr Vojislav [e{elj. The International Covenant on Civil and Political Rights guarantees to every person, including Vojislav [e{elj, the right to freedom, and in its Article 9, paragraph 1, provides that, “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Nevertheless, this restriction to liberty is itself restricted by paragraph 3 of the same Article, which provides that, “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.” The Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States from 1955 also guarantees the right to a trail within a reasonable time. Article 6, paragraph 1 of this Convention provides that, “In the determination of any charge against him, everyone shall be entitled to a fair and public hearing within a reasonable time.” The Universal Declaration of Human Rights of the UN provides protection from arbitrary detention. After all, Article 21, paragraph 4 of the ICTY Statute, provides that the Accused is entitled “to be tried without undue delay.” It is clear that the binding documents are disregarded in the proceedings being conducted against Professor Vojislav [e{elj before the ICTY and that the Judges act as if these international documents actually do not exist, and their professional conduct in the proceedings constitutes abuse of the profession they practice. 11. Article 21 of the ICTY Statute governs the rights of the Accused and its paragraph 4(d), lays down inter alia the entitlement, “to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.”


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Judges of the Hague Tribunal attempted to deny Vojislav [e{elj, holder of

PhD in law and law professor, this sacrosanct right. At the Tribunal, the Judges did everything to deprive [e{elj of the right to defence and to exert control over this guaranteed right by imposing counsel against his will. From the beginning Vojislav [e{elj adamantly maintained his stance on self-representation, and the efforts of the Judges to thwart this are beyond comprehension. The interests of justice did not dictate that Professor [e{elj be stripped of the right to self-representation. It is in interests of justice that the Accused must be entitled to make his own assessment as to whether it is better for him to conduct his own defence or to retain counsel. No one should have been allowed to decide this on his behalf. After all, the European Convention also provides for the right of the accused to represent himself. In the case of Vojislav [e{elj this right ought not to have been brought into question under any circumstances because he is a university professor whose education surpasses that of all other participants in the proceedings. However, neither the legal regulations nor the objective circumstances prevented the Judges of the ICTY from imposing counsel on [e{elj after all. They assigned, against [e{elj’s wishes, David Hooper, a barrister from Great Britain. Vojislav [e{elj agreed never to even speak to this barrister. The internationally guaranteed right to self-representation, as well as other universal rights, were most gravely violated in the case of Vojislav [e{elj, and he decided to do everything for these rights to be recognised. Dr [e{elj had to go on hunger strike in order to claim his basic human and procedural rights. He was on hunger strike from 10 November until 8 December 2010. During the strike he lost 28 kilograms and was on the brink of death. [e{elj was forced to go on this strike because of grave violations of his rights and the stubborn refusal of the Judges to allow him to exercise his right to defence. The news of Dr [e{elj’s determined resistance to lawlessness in The Hague spread through the entire planet, and became the subject matter for legal experts throughout the world. Even the UN Security Council debated this last-resort measure to which Vojislav [e{elj was driven in order to protect his interests. 12. Article 21, paragraph 4(a) of the ICTY Statute gives a guarantee to the accused “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.” Even for this internationally recognised right, Vojislav [e{elj had to fight like no one else before him. The denial of the right to conduct his own defence before the ICTY in Serbian, the only language he understands, was also one of the reasons why he had to embark on hunger strike and put his own life at risk. During the pre-trial proceedings, [e{elj was served with a huge quantity of documents in a language he does not understand and a large number of discs which purportedly held documents for disclosure. As an excellent lawyer, he knew that this constituted a denial of his basic procedural rights and did not agree to this. He insisted that the entire material for disclosure be submitted to him in the Serbian language and in hard copy. The stubbornness of the ICTY Judges and persistence with which they violated [e{elj’s rights drove Vojislav [e{elj to the nearly fatal hunger strike. The Judges did not care for the right of the Accused to examine all the case files. The conclusion that follows unambiguously from this is that, if the proceedings are conducted in a language which the accused does not understand, all the case files must be translated and submitted in the written form. Guarantees of this


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right are provided to accused persons by Article 3 of the European Convention on independent and impartial tribunal, Article 6 of the European Convention on the Protection of Human Rights, Article 14 of the International Covenant on Civil and Political Rights and even by the Statute of the ICTY. 13. According to all the regulations of international law governing criminal procedure, the date when the Prosecution delivers its opening statement is the date of the begging of the trial, and in the proceedings being conducted against Dr Vojislav [e{elj this is 7 November 2007. The first witness for the Prosecution was examined on 11 December 2007, and this date is considered at the ICTY as the beginning of the trial. This “legal rule” was introduced into the law of procedure by the Presiding Judge Jean-Claude Antonetti with a clear intent to distract from the fact that the Prosecution failed to comply with its obligation to disclose the names of protected witnesses. Although nearly five years had passed from the arrival of Vojislav [e{elj at the Hague Tribunal until the start of the trial, the trial went ahead even though procedural requirements had not been met, and this unambiguously shows that the groundless Indictment was submitted without valid proof and that it is a political Indictment produced at somebody’s request. The Prosecution first submitted the Indictment and only then got down to work on gathering evidence, and this clearly did not go well for them. Evidence was not fully disclosed to Vojislav [e{elj before the trial, especially not the evidence of confidential nature. The Prosecution had said that about 400,000 pages of various documents would be disclosed before the trail commences and that this would be done in Serbian, in writing and in hard copy. The Prosecution attempted to submit this material to [e{elj in English and in electronic form, which was one of the reasons for the imposed hunger strike on which Dr [e{elj was forced to embark in order to protect his rights. The Prosecution did not disclose confidential sections of expert reports before the beginning of the trial, and this immediately placed the Accused in an unequal position vis-à-vis the Prosecution. The Prosecution was under the obligation to submit to Dr Vojislav [e{elj 30 days before the start of the trial the names of protected witnesses, so that he could prepare for their testimony and cross examination. The fact that the Prosecution did not comply with any of the above requirements placed [e{elj in an unequal position in relation to the Prosecution in The Hague. 14. Other than violating the ICTY Statute and every imaginable document on the protection of human rights known to and recognized by international law, general legal rules, recognised even in Roman law, were violated to the detriment of Vojislav [e{elj. The rule that any retroactive application of a legal document may not cause prejudice to the accused was gravely violated in the proceedings against [e{elj. A year before the trial of Dr [e{elj commenced, the Hague Tribunal amended the provision of Rule 92 of the Rules of Procedure and Evidence by introducing the artificial quasi-provision 92 ter to govern other admission of written statements and transcripts, which reads: “(A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement or transcript of evidence given by a witness in proceedings before the Tribunal, under the following conditions: (i) the witness is present in court; (ii) the witness is available for cross-examination and any questioning by the Judges; and (iii) the witness attests that the written statement or transcript accurately reflects that witness’ declaration and what the witness would say if examined. (B) Evidence admitted under paragraph (A) may


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include evidence that goes to proof of the acts and conduct of the accused as charged in the indictment.” The Trial Chamber insisted on the application of Rule 92 ter irrespective of its retroactivity and allowed the proposition of the Prosecution to admit statements of witnesses without giving Vojislav [e{elj the opportunity to cross-examine them. Witnesses, whom Dr [e{elj could not examine viva voce, were not victims but insiders, participants, whom officials of the Office of the Prosecutor coerced into making statements by threatening to indict them too if they did not accept the conditions of the Office of the Prosecutor. Neither Vojislav [e{elj nor anyone from his Expert Team was present during the examination of these witnesses, but this did not prevent the Judges from admitting such statements and some other documents which were not mentioned in the courtroom. The experience with false witnesses for the Prosecution brings even further into doubt the application of Rule 92 ter. Dr Vojislav [e{elj waited for nearly five years in detention for the trial to commence, and it is clear that the reason for this is the inability of the Prosecution to gather evidence for its Indictment, which was produced beforehand and without any proof, so they resorted to the gravest violations of his rights and the ad hoc “thinking up” of rules to support that Indictment. The fundamental problem is in that the Judges were on the side of the Prosecution without any consideration for the manner and extent to which they were infringing on the fundamental human and procedural rights of the Accused.

15. The United Nations Human Rights Committee adopted the conclusion that the proceedings that are closed to the public cannot be independent or impartial. Introducing witness protection when there is no justified reason for it raises suspicion that the court and the Prosecution, in agreement with a protected witness, can accuse and later convict the accused under the guise of protecting a witness who is allegedly under threat from the accused. Article 21, paragraph 2, of the ICTY Statute regulates the transparency of the trial and lays down that: “In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute,” and Article 22 provides that: “The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity.”

Eighty-one witnesses have been heard in the trial conducted against Professor

Vojislav [e{elj before the ICTY. More than half of the witnesses testified under protective measures (using image and voice altering devices) or with the public completely excluded, behind closed doors. Ever since the trumped-up charges were brought against Vojislav [e{elj, there has not been the shadow of a doubt that no witnesses who appeared or were scheduled to testify in the [e{elj Case were under any threat. Neither Dr Vojislav [e{elj, nor any member of the Expert Team assisting in the preparation of the defence of Vojislav [e{elj or any member of the Serbian Radical Party have ever directly or indirectly made any threats against any witness, so it is difficult to understand why most witnesses testified under protective measures and why the Trial Chamber in this way seriously compromised the transparency of the trial. On the other hand, Prosecution representatives obtained statements from Prosecution witnesses under very suspicious circumstances. Investigators of the Hague Tribunal obtained statements using threats, blackmail, bribery and other kinds of pressure. They threatened to bring indictments against potential witnesses if they


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did not agree to testify against Dr Vojislav [e{elj, they threatened to harm their families, they offered money and relocation to third countries. They took statements under terrible torture, interviews lasted several hours without a break, under strong lights and never in the presence of a lawyer. Potential witnesses signed statements as theirs although they were far from what they had said during the interviews. They were not allowed to read the text they had to sign. Vojislav [e{elj proved all this during the trial. He proved that at least 55 Prosecution witnesses were false witnesses. A statement that will go down in the annals of history was given by a witness who said during his testimony that he had received a written text of his alleged statement at his home address and he just had to sign it and return it to the Prosecution.

16. Nineteen Prosecution witnesses moved to the Defence side voluntarily.

At their own initiative, all of them gave court-certified statements about the forms of torture used against them to force them to agree to be Prosecution witnesses against Vojislav [e{elj. Many of them spoke about it publicly at press conferences and in the interviews they gave to the media in Serbia. Therefore it is obvious that the threat to these witnesses did not come from Vojislav [e{elj but from the Hague Prosecution and there were absolutely no grounds for testifying under protective measures, and it constitutes a most flagrant violation of the right of the accused to a fair and public trial. The right to a public trial is also guaranteed under Article 6, paragraph 1, of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which unequivocally provides that “everyone is entitled to a fair and public hearing” and that the public “may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require”. Dr [e{elj’s conduct towards witnesses during their testimony, his consideration for witnesses who were victims and generally his regard for the proceedings, as well as the content of the indictment, show that there was no reason to exclude the public in accordance with the above Convention. The frequent and unfounded exclusion of the public during the proceedings against Vojislav [e{elj indicate the wilfulness of the Judges and ruthlessness in the violation of his human and procedural rights and absence of a fair trial. The ICTY Judges also disregarded the International Covenant on Civil and Political Rights, notably Article 14, paragraph 1, which provides that “everyone shall be entitled to a fair and public hearing”, but also that the “public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security”. Considering that it is indisputable that in the case of Vojislav [e{elj there were no reasons, or legal grounds, to exclude the public, it can be concluded that the grounds for such a flagrant violation of one of the fundamental rights are the lack of morals, incompetence or servility of the Trial Chamber Judges. The Judges had to take into account the interests of the accused and ensure his human and procedural rights, which was totally absent in this case.

17. The ICTY Statute contains no provisions for the criminal contempt of

court, but Rule 77 of the Rules of Procedure and Evidence provides that the “Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with its administration of justice”. However, it is inexplicable how someone accused of the most serious crimes before the ICTY can be held responsible for contempt of court, and it is also inexplicable and legally unacceptable that the Rules, as a subordinate document, usurp the powers of the Statute, as a principal


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document. In the case of Vojislav [e{elj, everything that is against legal practice and legal logic is possible, regardless of the fact that it violates his human rights in a most flagrant way. Despite the fact that there are no provisions for this offence under the ICTY Statute, to date Vojislav [e{elj has been held responsible for contempt of court three times and parallel proceedings were conducted against him before the Tribunal.

18. The first proceedings for alleged contempt of court were initiated in

January 2009 and conducted under number IT-03-67-R77.2. These proceedings were actually conducted against Professor [e{elj’s book published in November 2007. The book published public documents of the Defence which had previously, in the main trial, been admitted into evidence. In the incriminated book, Dr [e{elj did not publish the names of protected witnesses or the codes identifying them before the ICTY. It is interesting that the book that was the reason for the criminal proceedings against its author has 1,200 pages and it was published in Serbian, but only 7% of it was translated into English for the purposes of these quasi-proceedings. The translated parts of the book are not interrelated and there are several hundred pages between these parts. It is well known that the Judges in these proceedings speak no word of Serbian but it did not stop them from imposing a draconian sentence on Dr Vojislav [e{elj. Although they did not know what was written in 93% of the book which they actually tried, the Hague Judges imposed a sentence of 15 months’ imprisonment on Dr Vojislav [e{elj for alleged contempt of court. This sentence was upheld by the Appeals Chamber in Case No. IT-03-67-R77.2, which certainly comes as no surprise, considering the fact that the Judges of the Hague Tribunal showed that they did not particularly care about justice and fairness, which is a defeat of modern international law. A trial like in Franz Kafka’s The Trial! It is interesting that both the first- and second-instance judgements, sentencing Dr [e{elj to 15 months’ imprisonment in an unlawful trial for contempt of court, also have their secret version. This is a real legal scandal. A secret judgement! This absurdity is not provided for even under the ICTY Statute or the Rules of Procedure and Evidence. The public character of judgement is guaranteed under the International Covenant on Civil and Political Rights – Article 14, paragraph 1 – which provides that “any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children”. It is totally clear that in the case of the judgement for contempt of court rendered against Dr [e{elj, there is absolutely nothing about the exceptions that may give grounds for the judgement or part of it to be secret. However, considering the Hague Tribunal’s treatment of Vojislav [e{elj, everything is possible. It would have been a true miracle if any part of the proceedings had complied with the law. The proceedings in the [e{elj case before the ICTY, both the main case and the contempt cases, are schoolbook examples of prohibited conduct. It is standard practice at the ICTY to apply double standards in relation to Vojislav [e{elj. [e{elj was sentenced to 15 months’ imprisonment for an offence which the ICTY punishes with two months’ imprisonment on average. Therefore, it is standard practice to discriminate against Vojislav [e{elj, and no one at the Tribunal cares that such discrimination is prohibited by the UN Universal Declaration and the International Covenant on Civil and Political Rights, as well as the European Convention on Human Rights. Such conduct is further proof that political proceedings are conducted against Professor [e{elj which do not recognise the provisions of


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documents of international law which would have to apply to every citizen on the planet.

19. Discrimination against Vojislav [e{elj and the violations of his rights

continued with the raising of the second Indictment for contempt of the Tribunal. In case IT-03-67-R77.3, which was brought in 2010, [e{elj was charged again with alleged contempt of the Tribunal, again because of a book. It would appear that the era of Inquisition has not ended at the ICTY. He was accused of having “indirectly” disclosed information that “could” identify witnesses, thereby “creating a hostile atmosphere”. It is clear even to a layman that these allegations cannot be considered as serious legal formulations and that such nonsense is not recognised by contemporary international law. The ultimate nonsense is the claim made by the prosecutors in The Hague that by publishing the book Vojislav [e{elj “created a hostile atmosphere” which puts at risk the Defence witnesses, i.e. [e{elj’s witnesses. Such nebulous constructs resulted in a Judgment sentencing [e{elj to 18 months’ imprisonment. Had this not been tragic, it would have been comical. This is for Ripley’s Believe It or Not!

20. As stated above, the ICTY Statute does not recognise contempt of the

Tribunal as an offence; nevertheless, the litany of charges against Dr [e{elj continued. A third set of proceedings for alleged contempt of the Tribunal was instigated, much like in the previous two quasi-proceedings. Only this time it was not books that were contentious, but Vojislav [e{elj’s website and the charge that he had not removed “various documents” which pertain to the previous contempt proceedings. Presumably, it was the documents published on the website that endangered the witnesses for [e{elj’s defence. This is [e{elj’s website! It sounds unbelievable, but it is true: the Office of the Prosecutor in The Hague charged [e{elj with endangering his witnesses. These “contentious and confidential” documents are actually [e{elj’s book for which he was already convicted and which was published on the website. In this case, conducted under number IT-03-67-R77.4, [e{elj was sentenced to two years’ imprisonment without a single witness being heard. The “regularity” of this trial is also illustrated by the fact that the presence of Vojislav [e{elj’s case manager was not allowed during the trial. No serious lawyer could understand the logic of the Judges who meted out this draconic punishment, given that in the preceding case Vojislav [e{elj was punished for alleged contempt of the Tribunal for the same reasons. The second sentence was imposed on the already sentenced [e{elj because he did not remove from his website the “contentious” documents.

21. That the proceedings against Vojislav [e{elj have been dragged out is so

obvious that it is beyond dispute that [e{elj is being submitted to unbelievable torture before the ICTY. It is obvious that the Judges are fully aware that this is a political trial, they have accepted this and during the proceedings, they consciously ignored the binding documents of international criminal law. This is why [e{elj has been “temporarily” detained for 11 years without a legally valid detention order. All sides contributed to the delays in the proceedings: the Judges, the Office of the Prosecutor and the Registry. The proceedings have been dragged on as the consequence of every imaginable disclosure deadline being missed, attempts to impose counsel despite the express opposition by the Accused, unjustified delays in appointing legal advisers, refusal to finance the Defence, intermittent absolute prohibition on communication,


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suspending the proceedings on account of quasi-proceedings for contempt of the Tribunal and securing witnesses for the Prosecution after the Indictment was issued. It is inexplicable that four years, eight months and 14 days, i.e. 1,694 days, elapsed between Dr Vojislav [e{elj’s arriving at the Detention Unit and the beginning of the trial. It took a year, three months and four days, or 454 days, from the beginning of the trial for the Prosecution’s case to be completed. In this period, the proceedings were suspended pursuant to a decision of the Trial Chamber in the period from 11 February 2009 until 12 January 2010. The proceedings against Dr Vojislav [e{elj before the ICTY have taken longer than the Nuremberg trial or the Maxiprocesso against Cosa Nostra.

22. The irresponsible and unsubstantiated nature of the trumped-up charges in

the Indictment against Dr Vojislav [e{elj is best illustrated by the fact that the Indictment covers Vojvodina although it is a matter of common knowledge that this Serbian province was not affected by war conflicts in the period relevant for the Indictment. Interestingly, even the period covered by the Indictment is marked by lack of precision, thus the relevant events took place, “from on or about 1 August 1991 until at least September 1993”. In other words, no one on God’s earth can establish with certainty the period in which the crimes with which Vojislav [e{elj is charged were actually committed. Nevertheless, whichever period within the above framework this may be, there were no wartime operations in Vojvodina at the time and no large-scale emigration. The Indictment alleges: “At all times relevant to this indictment, a state of armed conflict existed in Croatia and Bosnia and Herzegovina. A nexus existed between this state of armed conflict and the alleged crimes in Croatia, Bosnia and Herzegovina, and parts of Vojvodina, Serbia.” The nexus, or the link, neither existed nor did the Prosecution succeed in proving it. This is clearly an arbitrary claim which is not substantiated by a single legal or political document from that period. This is hardly surprising given that all the charges against Dr [e{elj before the ICTY are arbitrary and malicious.

23. The Prosecution concluded its case on 11 February 2009, and the closing

arguments commenced on 20 March 2012, which is three years, one month and nine days, i.e. 1,119 days later. One year, seven months and 10 days, i.e. 580 days, elapsed between the closing arguments and the date established after two failed attempts for the pronouncement of the Judgement. This is the best pointer that no attention was paid in the [e{elj case to the sacrosanct legal rule concerning trial within a reasonable time. There is no logical answer to the question of reasons for such an unnecessary delay in setting the date for the pronouncement of the first-instance Judgement. Had the first-instance Judgment been pronounced on 30 October 2013, as originally decided by the Trial Chamber, this would have taken place exactly 3,900 days from the day Professor [e{elj arrived in the ICTY Detention Unit. It would appear that the Judges in The Hague do not understand the purpose of trial within a reasonable time. The purpose is to bring an end to any legal uncertainty affecting a person on account of criminal charges brought against him. The Judges in the [e{elj case have acted as if they had not read the regulations of the ICTY, which they themselves issued and which provide guarantees to the accused to a trail within a reasonable time, i.e. the right to an expeditious trial. This right is guaranteed to every accused person by the European Convention on the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the Convention on Human


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Rights and Fundamental Freedoms of the Commonwealth of Independent States, the Charter of Fundamental Rights of the European Union, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, the European Court of Human Rights and the Body of Principles of the United Nations for the Protection of All Persons under Any Form of Detention or Imprisonment, as well as every other instrument of international law. It is bizarre that at the ICTY they do not respect the UN either despite the fact that they conduct trials under its flag, for they would otherwise have shown regard for UN Principle number 37, which provides that “A person detained on a criminal charge shall be brought before a judicial or other authority provided by law promptly after his arrest. Such authority shall decide without delay upon the lawfulness and necessity of detention. No person may be kept under detention pending investigation or trial except upon the written order of such an authority.” Alternatively, Principle 38 of the Body of Principles of the UN for the Protection of All Persons under Any Form of Detention or Imprisonment emphasises that, “A person detained on a criminal charge shall be entitled to trial within a reasonable time or to release pending trial.” By consciously dragging out the proceedings against Vojislav [e{elj, the ICTY Judges have demonstrated that that which applies to every person in the world does not apply to Vojislav [e{elj. It is obvious that the ICTY has no evidence against [e{elj, and this is why the first-instance Judgement has not been rendered in his case even after 11 years.

24. When the Appeals Chamber rendered its Judgement of Accused Mugenzi

and Mugiraneza, Judge Patrick Robinson filed a separate opinion. Commenting on the undue delay in the preparation of the Trial Judgement, Judge Robinson said, “The next issue to consider is the appropriate remedy for the breach of the Appellants’ right to trial without undue delay. In that regard, I have considered whether formal recognition would constitute a sufficient remedy and concluded that it would not. In my view, Mugenzi and Mugiraneza are entitled to financial compensation.” Judge Robinson cited that in the Kajelijeli case the Appeals Chamber held that, ““[w]here a suspect or an accused’s rights have been violated during the period of his unlawful detention pending transfer and trial, Article 2(3)(a) of the ICCPR stipulates that “[a]ny person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity”. An effective remedy is one that is sufficient to compensate for the right breached, taking into account all the relevant circumstances including the subject matter, the nature of the right breached, and the stage of the proceedings when that right was breached.” According to Judge Robinson, “the Appeals Chamber envisioned financial compensation as a form of effective remedy only in situations where, amongst other violations, an accused was impermissibly detained without being informed of the charges against him.” Judge Robinson noted correctly that, “This is nothing more than a reference to the requirement under Article 9(5) of the ICCPR for “an enforceable right to compensation”. That provision in the ICCPR reflects a rule of customary international law which would be binding on the Tribunal.”

V. Legal Remedy Sought The foregoing sections of the present Motion cite numerous examples of violations of the basic human and procedural rights of Professor Vojislav [e{elj, as


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well as failures to comply with rules and regulations as envisaged by Rule 5 of the Rules of Procedure and Evidence. It is beyond dispute that all these violations of rights caused substantive prejudice to the Accused. Flagrant violations of the principle of expeditiousness point to the apparent application of the doctrine of abuse of process; consequently, a request is hereby submitted for suspension of the criminal proceedings and urgent release without further delay of Dr Vojislav [e{elj because it is clear that the proceedings cannot continue in a fair manner. No other adequate procedural avenue is open in the current situation, marked with systematic violations of his human and procedural rights. Additionally, on account of all of the above, Dr Vojislav [e{elj suffered non-pecuniary damages that cannot be compensated by the mere recognition of the violations of his rights, but also by means of financial compensation in the amount of 12,000,000 euros.

Professor Vojislav [e{elj /signed/


in trial chamber iii of the icty

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