No matter Seselj faced the most expensive international judicial body in the world (25% of the UN budget), not a single charge has been proven. Seselj defended himself in court but was actually destitute of all procedural rights: a right to reasonable conduct of judicial proceedings, a right to temporary freedom, a right to privileged communication with a lawyer, and even…a right to notification of reasons for arrest! 

Vojislav Seselj is the only accused by the International Criminal Tribunal for the former Yugoslavia who is refused his right to defense funding! Nobody, including top government officials of former Yugoslavia, like Radovan Karadzic, President of Republika Srpska, Serbian President Milan Milutinovich or Yugoslav President Slobodan Milosevic, was refused this right. Nobody but Seselj. Lawlessness triumphed: the defensive part of court proceedings was disrupted, the defendant was destitute of one more right – a right to defend himself. It’s interesting that no contemporary international legal act says a person is entitled to legal defense. The provisions envisaging enough time for preparation of defense, enough time for defense itself are enshrined but the very right to defend is not included. Obviously it never came to the heads of the authors that an accused could be destitute of this right itself. But nowadays, in the XXI century the destitution of a right to defend is a reality of “great democratic Western civilization!’ The world must know it. 

Vojislav Seselj is destitute of not procedural only but also of common human rights, like a right to adequate medical care. An independent medical commission said the therapy prescribed is not only inadequate, but rather ruinous for his health! Family members or any person coming to see Seselj behind bars is forbidden to talk about the state of his health! A question comes up: why the spouse of Seselj has no right to tell that her husband is gravely ill and doesn’t receive necessary medical care? Who gave the Hague prosecutors a right to demand such “non-disclosure obligation”? Do not these demands serve as an evidence of criminal intent? It has just been discovered someone tried to give Seselj an unknown medicine mixed with others in January. The International Criminal Tribunal officials keep silent about it! But it won’t work under the circumstances. Any normal tribunal has an obligation to investigate the case. Absence of investigation itself is an evidence of criminal intent. 

The most startling about it is that the West has failed to eliminate the Serbian Radical Party during these years, it still remains one of leading political forces confronting globalism. And not in the Balkans only. The grandiose meeting that took place in Belgrade on February 25 was a clear evidence it’s true. 

Not once I happened to take part in the meetings of Serbian political parties. Before they could boast about five thousand participants, this time the Serbian Radical Party gathered twenty five thousand to fill the Belgrade “Arena”. It lasted over four hours, the party leadership, Seselj’s legal advisors, historians, military, lawyers and cultural workers were among the speakers. The witnesses for the International Criminal Tribunal prosecution spoke too (including those who were threatened by the Tribunal’s prosecutors, they told publicly about it). The speakers demanded Seselj be immediately and unconditionally released. The ambassadors of many countries were present. They didn’t speak out but the very fact of their presence indicates what stance their respective countries take. Representatives of the Russian Public Committee in defense of Vojislav Seselj , Sergey Baburin, the Committee’s chairman and chancellor of the Russian State University of Trade and Economics, Elena Guskova, head of the Balkan Crisis Study Centre and the author of this article were greeted with special emotions. It’s worth to note the meeting started with Russian anthem. Even the anthem of Serbia was played afterwards. The music was constantly accompanied by applause, the people chanted “Rusija!” every time the very name of Russian state was mentioned. 

I’d like to believe Russia would say its word while presenting a really impartial assessment of the International Criminal Tribunal for former Yugoslavia. The matter is some cases may “flow away” to a new International Tribunal called International Residual Mechanism for Criminal Tribunals. (MomUt). Though it is to start its activities only next year, it can be said now: ”Wow, familiar faces all around!”. The composition of the Tribunal will be almost the same as the one of the International Criminal Tribunal for former Yugoslavia. The International Criminal Tribunal for former Yugoslavia report to the UN Security Council says the Hague Tribunal will consider the Seselj’s case till 2016! It means if acquitted by Court’s Chamber he would have spent four years more behind bars – the period of time defined by Hague judges as necessary for consideration of the appeal launched by prosecutor's office! 

The date of nine years that Seselj spent in jail in Hague and the 25 February meeting are contradictory events. One the one hand there was the date of a nine years old crime against the leader of the Serbian Radical party, let’s emphasize it – a crime committed under the UN aegis. On the other hand all could see the Serbian Radical party headed by V. Seselj has become stronger and ready for new gains. It has special importance for mobilization of all Serbian patriotic forces before the coming May 2012 parliamentary elections. 

Now it is clear why it took more than six months to fulfill the court’s order to carry out an “independent” medical examination of V. Šešelj. Apparently it was not easy to find the doctors, who were ready to grant any services. But eventually they found them. Last year the doctors appointed by the International Criminal Tribunal for the former Yugoslavia (ICTY) said there were no grounds to worry about Šešelj’s health. There is no other explanation why it took more than six month to fulfill the court’s demand. In fact the court provided an explanation but it would have been better if the court hadn’t done it. The secretariat of ICTY claimed that appointing doctors was such a complicated procedure that it was impossible to make it earlier. That’s a bare-faced lie, considering that several Russian doctors were ready to examine Šešelj at any moment and Šešelj also asked to appoint this group of doctors but “for some reason” that did not happen. Eventually the court appointed Russian doctor S.N. Avdeyev, who was pulmonologist while Šešelj needed a cardiologist! 

Now when the medical conclusion has been announced, what must the Hague Tribunal do? First of all it must to release Šešelj immediately. The trial can continue but with the defendant being out of prison. 

The arrest of V. Šešelj in February 2003, right after his free-will arrival in The Hague was made with the violations of the international law. Under the International law, any defendant has the right for freedom before the court brings a guilty verdict against him. The Universal Declaration of Human Rights, the Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms constitute that making arrest before or during the trial is possible but rather as an exception from the rule but not as a rule! In the Hague Tribunal it is usually the release which is an exception from the rule. The difference is huge. The international law obliges the prosecution to prove the necessity of defendant’s arrest, while in ICTY it is the defendant who should prove that he can be released! The fundamental legal defect of the Hague Tribunal is its refusal to recognize presumption of innocence (a defendant has to carry the burden of providing exculpatory evidence). Meanwhile the Hague tribunal keeps on making intrusive declarations on its highest standards of the International Criminal Justice!

Even under ICTY’s norms, the defendant has the right for pre-trial release. Although this right was determined by the Tribunal, it has a number of conditions, none of which has legal grounds – they are all spontaneous. But even these spontaneously defined conditions in the case of V. Šešelj cannot hamper his pre-trial release. In this respect it is necessary to pay attention to two precedents. 

The first precedent is the case of Ramush Haradinaj, who was given a provisional release from custody even despite the fact that several dozens of witnesses in his case had been killed. In that case we could assume that the judges were scared and unanimously released the Albanian and later justified him. But in Šešelj’s case there is no indication to intimidation of witnesses. Yes the tribunal brought several accusations against Šešelj with regard to disclosure of witnesses’ names. But, firstly, in reality no names were disclosed, secondly, none of the witnesses who testified against Šešelj was hurt – even among those whose names allegedly became known (the witnesses declared it themselves). The whole story with secret witnesses in ICTY is a fake. 

There are other reasons not to disclose witnesses’ names. It is necessary to make an impression that the defendants are so dangerous and if their names become known they will be killed. But defendants will learn the names of the witnesses anyway which means there is another reason not to reveal them. Firstly, the names may become known to wide audience, including those who definitively know that this particular witness was not there at all. Secondly, the procedure of disclosing the names of witnesses for defense differs from the procedure with usual witnesses (seven days instead of one month). Why is it so? After all the names will be disclosed to the defense anyway! It is done in order not to give the lawyers enough time to find out important facts from the witness’ biography (for example, a witness studied at school for mentally handicapped children or has a long criminal record etc.). (1) Indeed, the disclosure of the names alone is not so important as opportunity to find out what is behind the names!

The second precedent is the recent release of Jadranko Prlic, one of the defendants in the case “Prosecutor against Prilic and others”. Prlic was allowed to go home for the period of the verdict’s preparation. This is the first case when ICTY allows a provisional release after the trial (usually it is a pre-trial release). The case of Šešelj is on the final stage. This is obviously a scandalous final because the judges did not allow Šešelj’s defense to cover travel costs for his supporters who were to come to the Hague (the court’s chairman made the situation absurd when he offered the supporters of the Serbian radical Party to “chip in” together to collect the required sum). In early March last hearings will be held and the prosecution and V. Šešelj will make their final speeches. All witnesses for the prosecution have already spoken in the court. There are no grounds to keep Šešelj in jail. That is why Prlic’s precedent should be applied to Šešelj. The judges simply must do this. Also because the chairman of the court chamber in the case Prlic and Šešelj is the same – Jean Claude Antonetti! 

Vojislav Šešelj must be immediately released and be given opportunity to continue to fight the Hague Tribunal being out of prison.

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(1) These are real facts, which the defense managed to prove, even despite the fact that the tribunal “hushed up” the witnesses in order not to give the lawyers time for the investigation regarding these witnesses (from the case of Slobodan Milosevic). 

Since Seselj was taken into custody, the Tribunal failed to move beyond the indictment phase which, with the court almost never convening over the past couple of years, only reached completion last spring. The defense phase giving the indicted a chance to invite his own witnesses and to disprove the testimonies contributed by those of the prosecution was supposed to follow, but, in another unprecedented breach of rules, the Tribunal stalled the process by declining to provide funding to Seselj's team of legal advisors. The Tribunal is predictably trying to shift the blame for derailing the defense phase of the trial onto Seselj, saying that he did not prove convincingly the absence of sufficient private funds for his own defense. A curious philosophy looms behind the idea, the indicted being offered to prove the absence of something. Outside of the ICTY legal wonderland, one would normally expect the Tribunal to undertake proving that Seselj has the needed financial resources at his disposal. Theso-called Directive on the Assignment of Defence Counsel, somehow issued by the Tribunal’s Secretary without the court's or the UN Security Council's oversight, establishes that the indicted must prove he has no money for his own defense, which is a clear departure from the presumption of innocence principle implying, in the context, that the Tribunal has to prove that the funds exist.

Part of the problem is that the exorbitant legal costs to be shouldered by the ICTY defendants can easily leave their families penniless. It is an open secret that anyone standing trial at the Tribunal automatically faces the prospect of bankruptcy as the hearings tend to last indefinitely, investigations have to be conducted in various, occasionally uncooperative, countries, and witnesses end up stuck in the Hague for weeks. The costs arising as a result add up to absolutely unaffordable amounts. The story of late S. Milosevic's secret accounts in Western banks quietly sank into oblivion while he stood the ICTY trial – unable to locate them and divert the money to the Yugoslavian leader's legal counsel, the Tribunal attempted to save face and covered the costs, thus de facto admitting that Milosevic's money was a myth. In Seselj's case, the ITCY is not even trying to look civilized: in the early 2011, the judicial chamber announced that it would provide to his counsel 50% of the normal legal costs of other defendants. The ruling is a parody of justice considering that legal advice to defendants must be covered for the period since the moment of the arrest, which, in Seselj's case, makes eight and a half years. Moreover, the Secretary continues to mount opposition to the arrangement, saying that the judges overstepped their authority since it is entirely up to him to decide whether the defendant actually has money or not.

No doubt, the judicial chamber's clash with the Secretary who staunchly holds his own is complete pretense. The judges' suggestion that Seselj, whose web site features Serbian Radical Party conferences drawing tens of thousands of his supporters, ask them to chip in Euro 1-2 apiece to pay for his defense reflects with utmost clarity the real position taken by the court. Their other ideas for Seselj were that he should take out a loan or sell his residence.

A curious line of conduct for what is supposed to be an intentional court, isn't it? If the Tribunal really wants to hear Seselj's defense, it should have no problem making the Secretary do what he is supposed to or replacing him. The truth is that all parts of the ICTY share the same objective, which is to make hearing Seselj's defense impossible. The reason why the Tribunal has a vested interest in preventing the defense hearings is that it would easily transpire in the process to what extent a number of the Tribunal's employees actually deserve to face justice. There is no hope that the trial of V. Seselj is going to be fair, meaning that the only proper solution is to immediately close the case and have him released.

No mater how the ICTY puts obstacles in the way of Seselj's defense, the case has already become historical. There is no strength in numbers – Prof. Seselj showed that even one man's resistance makes sense and can be successful, and that the Hague Tribunal is not invincible. The Tribunal's choice not to cover V. Seselj's legal counsel reads as an admission that the ICTY and its patrons have already lost the case.

The charges against Seselj obviously lacked realism and were not backed by any serious evidence. Seselj was an opposition party leader, not an army commander or a statesman, and therefore could not be personally involved in a war. Carla Del Ponte explained bluntly the reasons behind the Hague's hurriedly taking him in custody – Zoran Dindic, Serbia's premier at the time of Seselj's arrest, persistently asked to take him away and to make sure the opposition leader would never return to his home country. It took the Tribunal five years to frame Seselj and to pick the witnesses ready to supply false testimony against him. 

It is an absurd situation that in the case of Seselj the Tribunal pushed for his arrest before even beginning to collect evidence that might substantiate the indictment, which, by the way, was tailored five times. The plan was to draw 144 witnesses into the process, but only 69 witnesses plus several experts were eventually found. The unprecedented duration of the trial – over eight years, as of today – is not a normal phenomenon from the legal standpoint. Only 42 sessions – mostly centered around technical issues – convened over the period of time counting a total of 2,920 days (1). Just one witness testified in 2007, 61 – in 2008, and again only 9 – in 2009. In other words, the trial practically stalled since 2008 while Seselj remains locked up in the Hague jail.

Serbia hopes to see Seselj released. The prosecution is through with presenting the evidence at its disposal as well as with hearing witnesses and experts. Interestingly, 40 of the 69 witnesses were proven to have supplied false testimony. Right during the hearings, 13 witnesses admitted to lying under pressure from the prosecution. They reported threats to open cases against if they refused to slander Seselj and to target their families. The witnesses also told about being terrorized psychologically, interrogated for hours non-stop, and promised assistance in relocating to the US and other Western countries in the framework of witness protection programs as a reward for cooperating. The judges moreover had to expel two witnesses right from the hearings as the people were simply unable to testify coherently.

It is clear that Seselj is not guilty of any crimes – he is facing accusations over his ideas and writings. While in the Tribunal's custody, he wrote several books including one describing his trial. No doubt, in the future historians and political scientists will rely on them to study the criminal activities of the ICTY.

Seselj's rights have been violated routinely throughout the eight years. He was denied the rights to being tried within a reasonably short period of time, to being fully informed about all aspects of the charges he is facing, to seeing his family, to legal counsel, to proper medical care, etc. Seselj, a lawyer by training, continues to fight for his rights as far as he can. On November 10, 2006 he went on a hunger strike which lasted for 28 days. Seselj demands to be allowed to be his own defender and to open an inquiry against ICTY prosecutors Carla Del Ponte, Dan Saxon, and Hildegard Uertz-Retzlaff regarding the fact that 34 witnesses have been coerced into perjury. Seselj also accuses the Tribunal of deliberately prolonging the trial. In the light of the above, the Tribunal's contempt of court charges serially leveled at Seselj deserve to be viewed as ordinary acts of revenge.

The eight years in jail told on Seselj's health. Russian doctors keep offering their services to Seselj but the Tribunal's consent is missing. Seselj suffers from heartaches, hypertension, and arrhythmia, but jail “doctor” P. Falke  who is notorious for his role in the murder of S. Milosevic did everything to prevent the information concerning Seselj's medical condition from becoming available outside the jail. The appointment of doctors supposed to probe into Seselj's medical condition was shrouded in secrecy and his medical records – promptly classified. In October, 2010 Seselj agreed to a heart surgery (during and after which the the jail's cardiograph was reportedly defunct), but the results remain hitherto unknown to Seselj and his relatives. Seselj's health is not being monitored by medical staff following the surgery.

A Serbia-Russia forum in Seselj's support convened in Belgrade on February 19, 2011. Truly speaking, the Serbian government is doing nothing for Seselj and only Moscow continues to help him.

Russia has formed a medical panel which is ready to assess Seselj's physical condition anytime, but the Tribunal persistently denies it access to the Serbian inmate. Russia's envoy brought up at the UN Security Council a number of times the issue of the unfair treatment of Seselj. Parliamentarian K. Zatulin sent a letter to Russia's foreign minister urging the foreign ministry to clarify the current situation around Seselj and to boost the efforts aimed at brining the ICTY workings to completion and at ending Seselj's trial before the events irreversibly take a tragic turn. A public committee for the defense of Seselj counting in its ranks politicians, activists, and representatives of the academic community was established in Moscow in December, 2010. The committee's objective is to ensure Seselj's release from jail. At the moment signatures are being collected under a petition which calls for freeing Seselj.

The ICTY will be closed fairly soon, and this must not be allowed to happen without its activities coming under the due scrutiny. The methods employed by the ICTY investigators and prosecutors must be subjected to careful analysis and the results must become publicly available. The International Criminal Tribunal for the former Yugoslavia should not simply stop to exist – a panel of independent experts should assess its activities and all those unfairly sentenced must be released.

Dr. Elena Gus'kova is a historian and the head of the Balkan Studies Center of the Institute for Slavonic Studies of the Russian Academy of Science

(1) http://www.fondsk.ru/news/2011/02/22/razrushitel-tribunala.html
 

Lacking worthy evidence, the prosecution encountered problems with witnesses who were supposed to testify against Seselj. Though the Tribunal maintains a whole squad of professional witnesses like Erdemovic, Donia, and Tabo who pop up at every trial, employing them in Seselj's case proved difficult as neither of them stood any chance in cross examinations.

Seselj's trial opened only on December 11, 2007. The hearings being permanently postponed or rescheduled, only 22 of them actually took place in 2009 and 20 – in 2010. Moreover, most of the hearings were administrative in character, without any witnesses attending. As a result, over the past couple of years the trial functioned for just 42 out of 730 days.

Even the witnesses who had been pressured into testifying against Seselj talked right at the hearings about the ICTY fabrication conveyor. As a result, the prosecution was forced to invent a  pretext for another round of delays, and solved the problem by accusing Seselj of disclosing witness identities and thus obstructing justice. Simply browsing through Seselj's books written in the ICTY custody could show that the allegations were groundless, but the jury sided with the prosecution, which was predictable considering that the jury issued the arrest warrant based on the indictment authored by the prosecution despite the clear absence of evidence. At the moment acquitting Seselj would be tantamount to charging the prosecution with fabrications and judge O-Gon Kwon, who penned the arrest warrant and, by the way, currently serves as the ICTY vice president – with knowingly sealing an unfair indictment.

Unbiased and truly independent judges would have long dropped the absurd charges against Seselj, but what we see is that, facing evidence of the prosecution's mischief, the trial only probes into the feasibility of launching an investigation into it which, moreover, would target individual prosecutors rather than the prosecution as a whole. In the meantime, Seselj remains in jail.

The Tribunal turned down Seselj's request to see Russian doctors – he was told he is supposed to be treated by medics from specific NATO countries, though article 31 of the ICTY custody states that the accused should have the right to chose doctors at their own discretion. (1) At the same time, the appointment of doctors by the Tribunal to screen Seselj's health condition was delayed, and in fact not for the first time. Last October the judicial chamber ruled that its “own” doctors would check Seselj's health. The tribunal's doctors were given two months for the job, which makes the judges' integrity look dubious. (2) Subsequent developments were a total disgrace as in November the term was prolonged by another month. (3) The medical commission did not come into being by January, and the court again prolonged the term by a month. (4) Efforts are made to explain away the court's behavior with a reference to technical complications but that is simply ridiculous: now that Russian doctors were not admitted, we are invited to believe that all doctors in the NATO countries have been too busy over the period of time.

The only real technical complication is that the Tribunal is looking for doctors to treat Seselj who are ready to take part in fabrications and to commit serious offenses. Otherwise, two or three doctors would not be hard to find within a year's term. The obvious objective is to make Seselj capitulate.

Seselj's rights are violated so severely that even the judge who presided over the last hearings on January 18 said the court had done all it could and now everything is in the hands of the secretariat. The judge even suggested that the recently established Russian committee for Seselj's defense undertake the protection of the Serbian politician's rights. Altogether this is an alarming indication that decisions are being made by the Tribunal as a whole rather than by the judicial chamber. For the ICTY, this is an unprecedented scandal.

We admire Prof. Seselj for his courage and fortitude and wish him to remain strong physically and psychologically. There is only one person in the ICTY custody who is capable of defeating the criminal institution – this is Vojislav Seselj, the man who is fighting for the truth.

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1. Rules Governing the Detention of Persons awaiting Trial or Appeal before the Tribunal or otherwise Detained on the Authority of the Tribunal, Rev. 9, 21 July 2005, // ICTY web site: http://www.icty.org/x/file/Legal%20Library/Detention/IT38UNDU_rules_rev9_2005_en.pdf
2. Order To Conduct A Fresh Expert Medical Evaluation Of Vojislav Seselj, 19 October 2010
3. Order Amending The Order To Conduct A Fresh Expert Medical Evaluation Of Vojislav Seselj, Filed On 19 October 2010, 17 November 2010
4. Order Amending The Order Filed On 18 November 2010, 12 January 2011