MICT-16-99-A 738 PUBLIC/JAVNO A738-A547 07 February 2017 AJ BCS original received 19 December 2016 Filed as PUBLIC per Appeal Chamber's instruction.

Mechanism for International Case No: MICT-16-99-A Criminal Tribunals

IN THE APPEALS CHAMBER

Before: Judge Theodor Meron, Presiding Judge Lee G. Muthoga Judge Florence Rita Arrey Judge Ben Emmerson Judge Ivo Nelson de Caires Batista Rosa

Registrar: Mr John Hocking

Date: 19 December 2016

Submission number 7sl.

THE PROSECUTOR

v.

PROFESSOR VOJISLAV ŠEŠELJ

PROFESOR VOJISLAV SEŠELJ’S RESPONDENT’S BRIEF

The Office of the Prosecutor: Mr Mathias Marcussen Ms Barbara Goy

The Accused: Prof essor Vojislav Šešelj

Expert team assisting the defence: Zoran Krasi ć Nataša Jovanovi ć Milan Terzi ć Petar Joji ć Nemanja Šarovi ć Ljiljana Mihajlovi ć Vjerica Radeta Ognjen Mihajlovi ć Jadranko Vukovi ć Filip Stojanovi ć Miroljub Ignjatovi ć Jovo Ostoji ć

MICT-16-99-A 737 PUBLIC/JAVNO Translation

MECHANISM FOR INTERNATIONAL

CRIMINAL TRIBUNALS

The Prosecutor

v.

Professor Vojislav Šešelj

Case No: MICT-16-99-A

Submission number 7sl.

PROFESSOR VOJISLAV ŠEŠELJ’S

RESPONDENT’S BRIEF

MAIN RESPONSE TO

THE PROSECUTION APPEAL

Introduction

1. With the Practice Direction related to the requirements and procedures for appeals of 6 August 2013 (Hereinafter: Practice Direction MICT/10) the President of the Mechanism for International Criminal Tribunals (hereinafter: MICT), judge Theodor Meron, regulated the formal and procedural requirements as well as the substance of appeals claims, from the Notice of Appeal to all possible submissions to follow in the appeals proceeding before the MICT. 2. On 2 May 2016 the Prosecution filed its Notice of Appeal pursuant to

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Article 23 of the MICT Statute and Rule 133 of the MICT Rules of Procedure and Evidence against the judgement of Trial Chamber III (of the International Criminal Tribunal for the Former Yugoslavia – hereinafter: ICTY), in the case of The Prosecutor v. Vojislav Šešelj , case no. IT-03-67-T, of 31 March 2016 (hereinafter: Judgement of acquittal). 3. The Prosecution’s Notice of Appeal of 2 May 2016 (hereinafter: Notice of Appeal) had to be drafted in such a way that it contains everything regulated under A.2. of Practice Direction MICT/10. Immediately after receiving the Prosecution’s Notice of Appeal, Professor Vojislav Šešelj noted and established all the procedural, formal and substantial deficiencies of the Notice of Appeal that render pointless any response. Indeed, Professor Vojislav Šešelj neither has the right nor authority to teach or correct the Prosecution, who are persecuting him. 4. All the deficiencies and variances of the Prosecution’s Notice of Appeal in relation to Practice Direction MICT/10 have become completely conspicuous and largely obvious with the filing of the confidential corrigendum to the Prosecution Appeal Brief of 18 July 2016 (hereinafter: Appeal Brief). The Notice of Appeal is not in accordance with or pursuant to Practice Direction MICT/10, and the Prosecution’s Appeal Brief does not correspond either to the Notice of Appeal or the rule prescribed under C.5. of Practice Direction MICT/10. 5. The Prosecution tried to do something in the corrigendum to the Appeal Brief of 29 August 2016 (hereinafter: Corrigendum), but it just further complicated its situation so that it is even more obvious that in the sense of criminal law, it does not know what it wants. Professor Vojislav Šešelj recalls that with the Corrigendum the Prosecution altered the following: - 12 paragraphs (paragraphs: 16, 63, 98, 118, 147, 161, 162, 173, 176, 208, 231, 2369 /as printed/) of the total of 251 paragraphs in their Appeal Brief; - two subtitles of their Appeal Brief; - 20 footnotes (footnotes: 18, 100, 161, 186, 188, 211, 220, 294, 320, 379, 381, 429, 434, 437, 439, 447, 470, 698, 668, 689) of the 701 the footnotes in their Appeal Brief, including even the declaration enclosed with the Appeal Brief. 6. In Practice Direction MICT/10 under 5 it is prescribed that the grounds of appeal and arguments must be set out and numbered in the same order as in the

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appellant’s Notice of Appeal. A perusal of the Notice of Appeal shows that it consists of a total of 12 paragraphs, with Ground 1 of appeal in paragraphs 2-8 (inclusive) and Ground 2 of appeal in paragraphs 9-12. Clearly the Prosecution had some problems. The grounds of appeal as presented in the Prosecution’s Appeal Brief simply cannot be squared with the grounds of appeal in the Prosecution’s Notice of Appeal. 7. Ground 1 of appeal in the Notice of Appeal reads as follows: - The Trial Chamber erred in law by failing to deliver a reasoned judgement. This would have to be an error on a question of law that invalidates the Judgement of acquittal pursuant to C.5.(iii) of Practice Direction MICT/10. Is this even possible? 8. Ground 1 of appeal in the Appeal Brief reads as follows: - The Chamber erred in law by failing to deliver a reasoned judgement. While the Prosecution’s Notice of Appeal contains only a single reference (paragraph 2) to the “Majority” of judges, the Appeal Brief uses the formulation “the Majority” or “the Majority fails” in almost all references to the Trial Chamber that issued the Judgement of acquittal. 9. In the Notice of Appeal, as Ground 1 of appeal against the Judgement of acquittal the Prosecution states that the Trial Chamber: - failed to provide sufficient reasons for key conclusions; - failed to address the Prosecution arguments and clearly relevant evidence; - failed to adjudicate essential issues in the case; - did not explain the substantive law it applied. The Prosecution claims that the errors of the “reasoned judgement” are to be found in paragraphs 14-357 and in the Disposition of the Judgement of acquittal on page 107. It is not at all clear how Trial Chamber III was supposed to deliver a reasoned Judgement of acquittal on page 107 and not err, as the Prosecution claims. Professor Vojislav Šešelj recalls that the Judgement of acquittal has a total of 357 paragraphs and the Disposition. This means that a total of 343 paragraphs of 357 paragraphs and the Disposition of the Judgement of acquittal lack any rationale. It is really not clear how Ground 1 of appeal in the Notice of Appeal does not encompass the title page and first 13 paragraphs of the Judgement of acquittal. It seems that the

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title page and first 13 paragraphs alone, in the opinion of the Prosecution, meet the criteria of proper application of law when reasoning the Judgement. 10. In the Appeal Brief, for Ground 1 of appeal, under II, the Prosecution states: - B. The Majority fails to address evidentiary issues and clearly relevant evidence (which would correspond to the claim in the Prosecution’s Notice of Appeal that it “failed to address the Prosecution arguments or clearly relevant evidence”). - C. The Chamber fails to provide a reasoned opinion for findings regarding charged crimes (it is not possible to figure out to which part of the Prosecution’s Notice of Appeal this refers). - D. The Majority fails to provide a reasoned opinion on joint criminal enterprise /JCE/ liability (this refers to paragraph 5, item 6 of the Prosecution’s Notice of Appeal), although it is not clear why “opinion” rather than findings. - E. The Majority fails to provide a reasoned opinion on instigation liability (in Ground 1 of appeal of the Prosecution’s Notice of Appeal nowhere does the word instigation appear), although this can be interpreted as the failure from Ground 1 of appeal in the Notice of Appeal that the Chamber “fail/ed/ to explain the substantive law it applied”. - F. The Majority fails to explain the substantive law it applies (which would correspond to the claim in the Prosecution’s Notice of Appeal that it “fail/ed/ to explain the substantive law it applied”). 11. In light of Ground 1 of appeal, stated in paragraph 8 of the Notice of Appeal, the Prosecution requests the Appeals Chamber to: - revise the Judgement of acquittal and find Professor Vojislav Šešelj guilty as charged, or, - reverse the Judgement of acquittal in its entirety and order a retrial. 12. Ground 2 of appeal in the Notice of Appeal reads as follows: - The Trial Chamber erred in fact by acquitting the accused. 13. Ground 2 of appeal in the Prosecution Appeal Brief reads as follows: - The Chamber erred in fact by acquitting the accused. 14. In the Notice of Appeal, for Ground 2 of appeal against the Judgement of acquittal, the Prosecution is incomparably more specific and states that the Trial

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Chamber erred in fact and that no “reasonable trial chamber” (meaning that Trial Chamber III was unreasonable) could have found that: -a) the chapeau elements of crimes against humanity were not proven (paragraphs 192-198 of the Judgement of acquittal); -b) the Accused is not responsible for crimes as a member of a JCE (paragraphs 225-281 of the Judgment of acquittal); -c) the Accused did not instigate crimes (paragraphs 282-285 of the Judgement of acquittal); -d) the Accused did not aid and abet crimes in which Šešeljevci participated (paragraphs 297-350 of the Judgment of acquittal); -e) the Accused did not physically commit persecutions, deportation and other inhumane acts – forcible transfer (paragraphs 354-357 of the Judgement of acquittal), and -f) ultimately, the Accused is not criminally responsible (Disposition, Judgement of acquittal, p. 107), although it is unclear what would be “fact” in the Disposition anyway; presumably it is a finding of whether there is any responsibility. 15. In the Prosecution Appeal Brief, Ground 2 of appeal, under III, reads as follows: A. The Majority erred in fact in finding that the chapeau elements of crimes against humanity are not proven (which corresponds to the Prosecution’s Notice of Appeal under a) that “the chapeau elements of crimes against humanity were not proven, paragraphs 192-198 of the Judgment of acquittal”). B. The Majority erred in fact in finding that Šešelj is not responsible for crimes as a member of a JCE (which corresponds to the Prosecution’s Notice of Appeal under b) that “the Accused is not responsible for crimes as a member of a JCE, paragraphs 225-281 of the Judgement of acquittal”). C. The Chamber erred in fact in finding that Šešelj did not instigate crimes (which corresponds to the Prosecution’s Notice of Appeal under c) that “the Accused did not instigate crimes, paragraphs 282-285 of the Judgement of acquittal”). D. The Majority erred in fact in finding that Šešelj did not aid and abet crimes (which corresponds to the Prosecution’s Notice of Appeal under d) that “the Accused

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did not aid and abet crimes in which Šešeljevci participated, paragraphs 297-350 of the Judgment of acquittal”). E. The Chamber erred in fact in finding that Šešelj did not physically commit persecutions, as well as deportation and other inhumane acts (forcible transfer), (which corresponds to the Prosecution’s Notice of Appeal under e) that “the accused did not physically commit persecutions, as well as deportation and other inhumane acts – forcible transfer, paragraphs 354-357 of the Judgment of acquittal”). 16. On the basis of Ground 2 of appeal in paragraph 12 of the Notice of Appeal, the Prosecution requested the Appeals Chamber to: - overturn the acquittal, correct the Trial Chamber’s errors and find that: - the chapeau elements of crimes against humanity were established; - in addition to war crimes found proven in paragraphs 205-220 – members of the Serb forces committed persecutions (Count 1); deportations (Count 10) and inhumane acts (forcible transfer) (Count 11), but this was contested as an error of law due to the failure to provide a reasoned Judgment of acquittal (paragraphs 14-357 of the Judgment of acquittal and the Disposition on p. 107); - the Accused is responsible for crimes as a member of a JCE, or, in the alternative; - that the Accused instigated crimes and/or aided and abetted crimes in which the Šešeljevci participated, and - the Accused physically committed persecutions, deportation and other inhumane acts (forcible transfer) and - sentence the Accused accordingly, or, in the alternative, - order a retrial. 17. For a more comprehensive understanding of what the Prosecution contests and what it seeks in the Notice of Appeal and Appeal Brief against the Judgment of acquittal, one must bear the following in mind: - the Judgment of acquittal of 31 March 2016 without annexes is 105 pages long (Serbian version), with 357 paragraphs and 414 footnotes; - the composition of the Judgement of acquittal, including deliberation, voting and drafting, lasted from 20 March 2012 to 31 March 2016, or a full four years, and it is certainly the first-instance judgment that was worked on the longest at the ICTY;

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- with the Judgement of acquittal, the Trial Chamber judges attached the following: a) Judge Antonetti his concurring opinion on 482 pages with 1,642 footnotes, b) Judge Niang his individual statement on six pages consisting of 21 paragraphs, c) Judge Lattanzi her partially dissenting opinion on 49 pages consisting of 150 paragraphs and 235 footnotes. 18. The trial of Professor Vojislav Šešelj before the ICTY was long ago declared an historical trial and a precedent that does not speak favourably of international criminal law. Professor Vojislav Šešelj waited for the initial trial judgment from 24 February 2003 until 31 March 2016, and spent the period from 24 February 2003 until 12 November 2014 in detention. 19. The trial and entire proceedings before the ICTY against Professor Vojislav Šešelj were the subject of active scrutiny and public interest in Serbia, its neighbouring countries and around the world. The trial and everything that accompanied it was covered by the media and social networks. There was great interest in following the time-delayed broadcasts on the internet and on the Serbian RTS /Serbian Broadcasting Corporation/ state television, which was also watched by viewers from the region of the former SFRY /Socialist Federative Republic of Yugoslavia/ and elsewhere. YouTube and the channels of the Committee for the Defence of Vojislav Šešelj posted courtroom images of the trial of Professor Vojislav Šešelj almost on a daily basis, along with the weekly press conferences of the Committee for Defence and audio-visual recordings of international conferences organised about the trial. Volumes of books were published containing trial submissions, as were studies, the stenographic records of international conferences on Professor Vojislav Šešelj’s trial at the ICTY, all newspaper articles on the subject and footage from book promotion events. 20. The trial and all aspects of the trial of Professor Vojislav Šešelj have always been public, so that the public took part in the trial following what was happening, how Professor Vojislav Šešelj defended himself, what his resources were, what the Prosecution was using and in particular the conduct of the judges who are supposed to ensure a fair and just trial.

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21. All this must be kept in sight constantly when analysing and assessing the grounds of appeal and arguments cited by the Prosecution. 22. In this respondent’s brief Professor Vojislav Šešelj is duty-bound to adhere to and be led by Rule D.6. of Practice Direction MICT/10, which reads as follows: “D. The Respondent’s Brief 6. The opposing party (“Respondent”) shall file, in accordance with the Statute and the Rules, a Respondent’s Brief, containing for each group of appeal, in the following order: (a) a statement on whether or not the relief sought by the Appellant is opposed; (b) a statement on whether or not the ground of appeal is opposed; and (c) arguments in support of these statements, containing: (i) legal arguments, including clear and precise references to the judgment, the relevant provisions of the Statute, the Rules, the jurisprudence of the Mechanism, the ICTY, or the ICTR, or other legal authorities relied upon; (ii) factual arguments including, if applicable, the arguments in support of the assertion that a fact has been sufficiently proven or not, with precise reference to any relevant exhibit, transcript page, decision or paragraph number in the judgment; and (iii) arguments responding to the Appellant's arguments demonstrating why any alleged error on a question of law invalidates the decision and/or any alleged error of fact has occasioned a miscarriage of justice. The statements and the arguments must be set out and numbered in the same order as in the Appellant's Brief and shall be limited to arguments made in response to that brief. However, if an Appellant relies on a particular ground to reverse an acquittal, the Respondent may support the acquittal on additional grounds.” 23. In spite of this obligation and his wish to be precise, Professor Vojislav Šešelj is faced with a problem, because the Prosecution’s Notice of Appeal does not fulfil the requirements set out in A.2. of Practice Direction MICT/10, which reads as follows:

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“A. The Appellant's Notice of Appeal 2. A party seeking to appeal from a judgment of a Trial Chamber (Appellant) shall file, in accordance with the Statute of the Mechanism (Statute), in particular Article 23 of the Statute, and the Rules, a Notice of Appeal containing, in the following order: (a) the date of the judgment; (b) the specific provision of the Rules pursuant to which the Notice of Appeal is filed; (c) the grounds of appeal, clearly specifying in respect of each ground of appeal: (i) any alleged error on a question of law invalidating the decision, and/or (ii) any alleged error of fact which has occasioned a miscarriage of justice; (iii)an identification of the finding or ruling challenged in the judgment, with specific reference to the page number and paragraph number; (iv) an identification of any other order, decision or ruling challenged, with specific reference to the date of its filing, and/or transcript page; and (v) the precise relief sought; and (d) if relevant, the overall relief sought.” 24. Professor Vojislav Šešelj emphasises that the Prosecution Appeal Brief, from its table of contents to the arguments and their content, for the most part does not meet the requirements prescribed in C.5. of Practice Direction MICT/10, which read as follows: “C. The Appellant’s Brief 5. After having filed a Notice of Appeal, the Appellant shall file, in accordance with the Statute and the Rules, an Appellant's Brief containing, in the following order: (a) an introduction with a concise summary of the relevant procedural history including the date of the judgment as well as the case number and date of any interlocutory filing or decision relevant to the appeal; (b) the arguments in support of each ground of appeal, including, but not limited to:

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(i) legal arguments, giving clear and precise references to the judgment, the relevant provisions of the Statute, the Rules, the jurisprudence of the Mechanism, the International Criminal Tribunal for the former Yugoslavia ("ICTY"), or the International Criminal Tribunal for Rwanda ("ICTR"), or other legal authorities relied upon; (ii) factual arguments and, if applicable, arguments in support of any objections as to whether a fact has been sufficiently proven or not, with precise reference to any relevant exhibit, transcript page, decision or paragraph number in the judgment; (iii) arguments demonstrating why any alleged error on a question of law invalidates the decision and/or any alleged error of fact has occasioned a miscarriage of justice; and (iv) the precise relief sought; and (c) the arguments in support of any overall relief sought. The grounds of appeal and the arguments must be set out and numbered in the same order as in the Appellant's Notice of Appeal, unless otherwise varied with leave of the Appeals Chamber.” 25. Practice Direction MICT/10 requires a precise and clear legal and logical cohesion of reasons, arguments, requirements and stated grounds of appeal in the Appeal Brief with the Notice of Appeal and the judgment that is being appealed. It is not just a question of mere identification, but the arguments of the grounds of appeal must be dependent on the appropriate portion or place in the Notice of Appeal where the contested paragraph of the judgement is found that is being contested in the appeal. Unfortunately, this is not so with the arguments stated in the Prosecution Appeal Brief within the framework of Ground 1 of appeal. This failure cannot be justified in any manner by the fact that the Prosecution gave notice that it is contesting paragraphs 14-357 and the Disposition on page 107 of the Judgement of acquittal, leaving it to guesswork in the Appeal Brief as to which paragraph of the Judgement of acquittal is being contested with Ground 1 of appeal. 26. It is ultimately inadmissible that in the grounds of appeal of the Appeal Brief the Prosecution in many places fails to cite either the Notice of Appeal or paragraphs of the Judgement of acquittal, but rather an argument from either the

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preceding or following ground of appeal. In this manner the Prosecution inadmissibly broadens the already overly broad Notice of Appeal. Thus the situation is created that although a paragraph of the Judgment of acquittal contains one footnote, citing the testimony of a single witness, reference to the previous ground of appeal introduces another witness, who is not to be found in either the paragraph or the footnote. An example of this is paragraph 159 of the Appeal Brief, which has footnote 424 associated with it, which refers to II.C.2.(c) of the Appeal Brief, and there we have footnote 155 of the Prosecution Appeal Brief, which refers to paragraphs 205- 220 of the Judgement of acquittal. In order to comprehend this somehow, one must keep in mind that paragraph 159 of the Prosecution Appeal Brief is directed at explaining the Prosecution’s Ground 2 of appeal: the error of fact that Šešelj is not responsible for crimes as a member of a JCE. Everything written in II.C.2.(c) of the Prosecution Appeal Brief is directed at the Prosecution’s Ground 1 of appeal: the Chamber fails to provide a reasoned opinion for findings regarding charged crimes with the reference that there was no widespread or systematic attack on the non- Serbian civilian population in Croatia and BiH and the specific error of law of failing to deliver a reasoned acquittal because large amounts of evidence of crimes, including those that the Chamber found proven, were not addressed. In this manner the Prosecution pushes, imposes and creates prejudice in favour of the opinion that wherever there is a crime, Professor Vojislav Šešelj is also there. It is of no importance what kind of error is in question: in law or fact. There is initially one argument and then another is introduced and so forth. To show alleged error in the matter of participation in the JCE use is made of the Trial Chamber’s finding on the existence of crimes, but there is no mention of the finding by the Trial Chamber that Professor Vojislav Šešelj is not responsible for these crimes, and in this manner support is supposedly provided to the claim of error of fact. 27. In the Prosecution Appeal Brief the Prosecution also makes use of certain manipulations. So paragraph 196 of the Appeal Brief reads as follows: “The Chamber found that Šešelj’s speech in Hrtkovci was a clear call for expulsion of Croats.” Furthermore this is annotated with footnote number 547, which refers to paragraph 197 of the Judgment of acquittal that reads as follows:

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“Lastly, the Majority notes – without losing sight of the Accused’s particularly disturbing speech of 6 May, which clearly called for the deportation of Croats, especially those he considered to be disloyal – that it was never even alleged that the Accused took a direct part in the exchange of housing. And yet, these exchange contracts are taken as the principal medium through which the deportation of Croats from Hrtkovci was carried out.” 28. This example, and the Prosecution Appeal Brief is abundant in similar ones, shows the Prosecution’s intent, even when citing or referring to a paragraph of the Judgement of acquittal, to do so partially, out of context, so that it describes and ascribes importance that is not there in the Judgement of acquittal. This is how the Judgement of acquittal is moulded to the Prosecution’s requirements in the Prosecution Appeal Brief and how the Appeals Chamber is forced to doubt and verify each and every statement, citation and the Prosecution’s references to paragraph or footnote of the Judgement of acquittal. This moulding is the reason why the Prosecution Appeal Brief is not drafted pursuant to the rules of Practice Direction MICT/10, but rather leaves the impression that elements were thrown together at random and that the Prosecution is a party ignorant of the law. Simply, this is the custom of the Prosecution in this case, ever since 24 February 2003. 29. Further in this respondent’s brief Professor Vojislav Šešelj will attempt, pursuant to rule D.6 of Practice Direction MICT/10, to set out his basic arguments.

II. PROFESSOR VOJISLAV ŠEŠELJ’S RESPONSE TO GROUND 1 OF APPEAL IN THE PROSECUTION APPEAL BRIEF: THE TRIAL CHAMBER ERRED IN LAW BY FAILING TO DELIVER A REASONED JUDGEMENT

A. Introduction

30. In the Notice of Appeal the Prosecution stated Ground 1 of appeal as follows: the Trial Chamber “fail[ed] to deliver / propustilo da donese /” a reasoned judgment, while in the Appeal Brief it wrote that it “fail[ed] to deliver / nije donelo /” a reasoned judgment. If we overlook these terminological inconsistencies, the

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conclusion follows that these are errors of law due to the fact that the Judgment of acquittal is not reasoned or that the reasoning is so flawed that it is impossible to establish why a judgment to acquit was delivered. 31. Flaws in a reasoned opinion are usually considered to consist of mutually contradictory reasons or unclear reasons, or the reasons as stated being contradictory with the Disposition, or perhaps the reasoning not including any findings of relevant facts. As a rule, flaws and errors in the reasoning of a judgement are treated as absolute or relative major violations or flaws of the legal proceedings. The procedural violations cited by the Prosecution basically represent proof that the trial was not fair and just. The Prosecution’s claim, at which one arrives by giving the Prosecution’s Ground 1 of appeal its real meaning, is considerably surprising. Thus the Prosecution unwillingly claims that the problem is a fair and just trial and makes it seem as if the Prosecution was the one who spent 12 years in detention. Let us recall that it must be borne in mind that Professor Vojislav Šešelj has claimed for years that his was not a fair and just trial while the Prosecution fiercely contested and denied this in all manners possible. Now the Prosecution introduces a somewhat shocking and confusing claim – the Prosecution was not accorded a fair and just trial? 32. In the practice of the ICTY these flaws cited by the Prosecution in Ground 1 of its appeal are classified as errors of law. If this is as the Prosecution claims, then the reasoning of the Judgment of acquittal is not in harmony with, or is in contradiction with, the relevant provisions of substantive and procedural law. For ICTY judgments, this substantive law would be Article 23 of the ICTY Statute, with the heading “Judgment”, which reads as follows: “1. The Trial Chambers shall pronounce judgements and impose sentences and penalties on persons convicted of serious violations of international humanitarian law. 2. The judgement shall be rendered by a majority of the judges of the Trial Chamber, and shall be delivered by the Trial Chamber in public. It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended.” The identical provision is also found in Article 23 of the MICT Statute.

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33. Considering the Article of the ICTY Statute cited above, it is really not clear where the Prosecution found disagreement in the reasoning or any flaws in the reasoning, and that it is an error of law (substantive law). 34. In the case of an ICTY judgement, the relevant procedural law would be Rule 98 ter of the Rules of Procedure and Evidence, bearing the title “Judgement”, which reads as follows: “(A) The judgement shall be pronounced in public, on a date of which notice shall have been given to the parties and counsel and at which they shall be entitled to be present, subject to the provisions of Rule 102 (B). (B) If the Trial Chamber finds the accused guilty of a crime and concludes from the evidence that unlawful taking of property by the accused was associated with it, it shall make a specific finding to that effect in its judgement. The Trial Chamber may order restitution as provided in Rule 105. (C) The judgement shall be rendered by a majority of the Judges. It shall be accompanied or followed as soon as possible by a reasoned opinion in writing, to which separate or dissenting opinions may be appended. (D) A copy of the judgement and of the Judges’ opinions in a language which the accused understands shall as soon as possible be served on the accused if in custody. Copies thereof in that language and in the language in which they were delivered shall also as soon as possible be provided to counsel for the accused.” The identical provision is also found in Rule 122 of the MICT Rules of Procedure and Evidence. 35. Considering the above rule of the Rules of Procedure and Evidence, it is really not clear where the Prosecution found disagreement in the reasoning or any flaws in the reasoning, and that the error lies in law (procedural law). 36. Pursuant to the prescribed requirements on what a respondent’s brief must contain, for Ground 1 of appeal from the Prosecution Appeal Brief, Professor Vojislav Šešelj emphasises the following: (a) he hereby states that he objects to the relief sought by the appellant; (b) he states that he objects to Ground 1 of appeal. As for the requirement under (c), arguments in support of these statements must contain:

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(i) legal arguments, including clear and precise references to the judgment, the relevant provisions of the Statute, the Rules, the jurisprudence of the Mechanism, the ICTY, or the ICTR, or other legal authorities relied upon; (ii) factual arguments including, if applicable, the arguments in support of the assertion that a fact has been sufficiently proven or not, with precise reference to any relevant exhibit, transcript page, decision or paragraph number in the judgment; and (iii) arguments responding to the Appellant's arguments demonstrating why any alleged error on a question of law invalidates the decision and/or any alleged error of fact has occasioned a miscarriage of justice. Professor Vojislav Šešelj wishes to point out that he will substantiate separately all the above cited requirements under (c) in separate portions that follow within the framework of the Prosecution’s Ground 1 of appeal, citing the appropriate headings, order and paragraphs from the Prosecution Appeal Brief. 37. Some confusion may arise because the Prosecution in its Ground 1 of appeal challenges everything from paragraph 14 to paragraph 357 of the Judgment of acquittal (344 of the total of 357 paragraphs) and the Disposition on page 107 of the Judgment of acquittal, emphasising that error lies in the reasoning. This is difficult to comprehend, but it is worth a try. 38. Within the framework of Ground 1 of appeal the Prosecution had to comply with and satisfy the requirements of C.5. of Practice Direction MICT/10. Did it meet its obligation? 39. A systematic presentation of claims, as prescribed, does not exist in the Prosecution Appeal Brief, nor are the arguments presented in the prescribed form. The presentation of the basic premise is organised in a manner that is to some extent similar to the prescribed requirements and can be found in outline in the part entitled: “A. Introduction” in Ground 1 of appeal, and it is possible to discern the existence of something in the following portions: - 4. Conclusion (paragraph 41), - 3. Conclusion (paragraph 74), - 4. Conclusion (paragraph 108), - 2. Conclusion (paragraph 117) and

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- 7. Conclusion (paragraph 132). However, all of these are below the elementary criteria prescribed as the requirements that have to be met by arguments.

Arguments in support of Professor Vojislav Šešelj’s statements by which he challenges Ground 1 (B) of appeal: The Majority fails to address evidentiary issues and clearly relevant evidence

40. In this portion of the Respondent’s Brief arguments will be presented in response to the Prosecution’s claims from paragraph 14 to paragraph 41 of the Prosecution Appeal Brief. If a link is sought between the Prosecution’s arguments in the above paragraphs in the Appeal Brief and the Prosecution’s Notice of Appeal, it can probably be found in the Notice of Appeal as the error that the Trial Chamber “failed to address the Prosecution arguments and clearly relevant evidence.” 41. In paragraph 15 of the Appeal Brief the Prosecution states that “the Chamber disregards the vast majority of Šešelj’s many contemporaneous public statements” and cites footnote 12, and in that footnote it cites II.B.3(b), and when one looks at II.B.3(b), found in paragraph 36 of the Appeal Brief, one is directed to footnote 100, and that footnote cites II.E.1(a), and when one looks at II.E.1(a), found in paragraph 111 of the Prosecution Appeal Brief, it reads: “of the large number of Šešelj’s statements admitted into evidence” and adds footnote 315, which reads: “See above II.B.3.(b)”. Is this comprehensible? The Prosecution is running in circles and refuting itself and the main argument in this game of numbers, paragraphs and footnotes is the argument that it is quoting itself. It turns out that the Chamber disregarded what was admitted into evidence, this being II.B.3(b), or rather nothing at all. To avoid this being noticed, the Prosecution makes an even bigger mistake, and in paragraph 111 of the Appeal Brief it cites footnotes 316, 317, 318 and 319, which identify the statements the Trial Chamber took into account, while as a failure or error of the Trial Chamber it wrote in paragraph 112 of the Appeal Brief that it cites footnote 320, which cites paragraph 303 of the Judgment of acquittal, while associated with paragraph 303 of the Judgement of acquittal are footnote 344 (Judge Lattanzi does not have the same

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notion…) and footnote 345 (did not take into consideration Vojislav Šešelj’s speech concerning the Albanian minority in Kosovo and Macedonia and using the term Shiptar …). It seems that the proof of the errors in reasoning in relation to a small number of Šešelj’s statements, in the opinion of and according to the main argument of the Prosecution, is that the Trial Chamber did not acknowledge the opinion of Judge Lattanzi! Therefore, Judge Lattanzi’s opinion is a replacement and cover for missing statements, which the Prosecution does not even know exist, because if it did know it would present them; and this is filled in with Šešelj’s statements from a place and time that are not covered in the Indictment. 42. This leads to the question of whether the Prosecution gave any arguments in support of their claims of alleged errors in the reasoning of the Judgement of acquittal. 43. One example presented is paragraph 22 of the Appeal Brief, which elaborates the idea of a “pattern of crimes”, and as an argument tackling the detailed explanation of the Trial Chamber in paragraph 29 of the Judgement of acquittal, the Prosecution cites footnote 10 of the Judgement of acquittal – that Judge Lattanzi was opposed, although the Indictment against Professor Vojislav Šešelj was amended and shortened a number of times on orders of the Trial Chamber without any objection from the Prosecution. Then it is no wonder that the Prosecution fails to present arguments as prescribed and in a clear manner anywhere in the Appeal Brief. 44. In paragraphs 14-41 of the Appeal Brief, the Prosecution cites a number of paragraphs and footnotes from the Judgement of acquittal, however no reasonable person reading this can establish what it is the Prosecution is contesting and tackling in the Judgement of acquittal. Nowhere is it stated or argued where the error of law is found, and especially not with the emphasis on the Judgement of acquittal not being reasoned. 45. Since the entire text of the Prosecution Appeal Brief is fundamentally based on the Prosecution being angry and amazed how it is possible that the Trial Chamber did not uphold and accept everything it wanted, one must bear in mind everything that is used to mask this. This is why the Appeal Brief constantly stresses that the Prosecution witnesses changed their testimonies in the courtroom, that they

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switched from being Prosecution witnesses to being Defence witnesses and clearly insists that the Appeals Chamber, when adjudicating, should deliver its decision on the basis of the written statements given by the witnesses to the Prosecution investigators, rather than on the courtroom testimonies, and that all of the witnesses were the victims of threats, blackmail and bribery conducted by Professor Vojislav Šešelj in the courtroom and members of his defence team in Serbia. In this manner the Prosecution reasserts its position that it would most of all like a trial conducted by giving the judges statements that the Prosecution moulded and having the judges simply set a date for delivering a guilty verdict. 46. The situation is significantly different. In May 2007 Professor Vojislav Šešelj requested the initiation of criminal proceedings against Prosecution officials who had intimidated and exerted other forms of pressure on potential witnesses. The request was not upheld, although in its decision the Trial Chamber permitted Professor Vojislav Šešelj to question Prosecution witnesses in the courtroom about these circumstances as well. Many of them were unaware that they would be witnesses for the Prosecution and when they found out they rebelled against the Prosecution. Several likely Prosecution witnesses wrote and some even published books of hundreds of pages about the hell they endured in contacts with the Prosecution investigators. This is all well known to the public, and the Prosecution is pretending it does not know this and that is why it is openly insisting that only written statements compiled before Prosecution investigators, and by the investigators even without the knowledge of witnesses, are to be used in making a determination on the appeal and almost all of the evidentiary proceedings in the courtroom and before the Trial Chamber should be deleted from evidence. 47. Therefore, in paragraphs 14-41 of the Appeal Brief the Prosecution did not identify and did not present or adequately explain any legal or factual arguments and in particular did not state any reasons why the alleged error of law invalidates the Judgement, as it claims, because the Trial Chamber failed to deliver a reasoned judgement.

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Arguments in support of Professor Vojislav Šešelj’s statements by which he challenges Ground 1 (C) of appeal: The Chamber fails to provide a reasoned opinion for findings regarding charged crimes

48. In this portion of the Respondent’s Brief arguments will be presented in response to the Prosecution’s claims from paragraph 42 to paragraph 74 of the Prosecution Appeal Brief. If a link were sought between the Prosecution’s arguments in the above paragraphs in the Appeal Brief and the Prosecution’s Notice of Appeal, it would not be possible to identify the portion of the Prosecution’s Notice of Appeal to which this refers. However, according to some statements, this refers to paragraph 5 of the Notice of Appeal, in particular to the portion that clearly challenges paragraphs 192-198 of the Judgment of acquittal, as well as to a whole series of other paragraphs from the Judgement of acquittal. 49. In paragraph 43 of the Appeal Brief the Prosecution states that the Chamber erred since its findings on war crimes consist of mere one-sentence bullet- points, annotated with footnote 121 of the appeals proceedings /as printed/ that reads: see paragraphs 203, 204, 207, 210, 213, 216 and 219 of the Judgement of acquittal. 50. Reading paragraph 203 of the Judgement of acquittal about the finding that the Trial Chamber ascertained that there is insufficient evidence, and footnotes 162- 171 of the Judgment of acquittal citing the evidence introduced by the Prosecution that the Trial Chamber took into account, leads to the conclusion that based on this evidence the Trial Chamber could not ascertain the reality of the war crimes. It is interesting that Judge Lattanzi gave a separate opinion only in footnote 166 of the Judgement of acquittal. 51. What the Prosecution resorts to can be seen in the Prosecution Appeal Brief, in which it emphasises an error of law by failing to deliver a reasoned judgement and as evidence in support of its claim cites paragraph 207 of the Judgement of acquittal. This is the Trial Chamber finding that crimes were indeed committed in Vukovar and in three places it states “including Šešelj’s men”. Of course, the Prosecution had no intention of stating what was said in paragraph 206 of the Judgement of acquittal and that the Trial Chamber had evidence for every single word in paragraph 206 of the Judgement of acquittal, and it had to keep in mind

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previous judgements in other cases, such as the case of the Vukovar Three - Mrkšić et al ., which in fact does not contain a single solitary bad word for Professor Vojislav Šešelj. 52. In this manner the Prosecution acts as if it does not know that there is a significant difference between the finding that some crime did indeed occur and a finding on who might be responsible for that particular crime. The Prosecution believes it is enough to write “Šešelj’s men” in order to have Professor Vojislav Šešelj be responsible for everything that happened. 53. In paragraph 49 of the Appeal Brief, the Prosecution cites two witnesses, VS-1022 and VS-1087, based on whose testimony the Trial Chamber made its finding, and backs this up with footnote 131 of the Appeal Brief, which in turn refers to paragraph 193 of the Judgement of acquittal. Reading paragraph 193 of the Judgement of acquittal one comes to footnote 148 of the Judgement of acquittal, which refers to the testimony of witness VS-1022 only. There is no mention anywhere of witness VS-1087. However, the Prosecution continues to use even this non-existent witness in paragraph 51 of the Prosecution Appeal Brief. 54. Everything that was stated in paragraphs 42-74 of the Appeal Brief was presented by the Prosecution as the Trial Chamber’s error of law due to the Judgement of acquittal not being reasoned, using as arguments and citing the testimony of a large number of witnesses, which may introduce confusion. Absolutely not a single one of the witnesses listed by the Prosecution had a single solitary accusatory word for Professor Vojislav Šešelj but rather they helped the judges gain complete insight into what had transpired and how events played out. Furthermore, the Prosecution claims lack of clarity in regard to the witnesses whose testimony exonerates Professor Vojislav Šešelj of any liability, although it is not known what in particular or additionally the Trial Chamber was supposed to provide reasoning for. The Prosecution claims of error of law because the Judgement of acquittal was not sufficiently reasoned would have had some sense had witnesses and evidence accusing Professor Vojislav Šešelj been dominant and the Trial Chamber in fact did not mention any such witnesses or did not include their incriminating testimonies. This is not the reality of this case. Incrminating testimony came only from the Prosecution and its case has no support, which is why the Prosecution is angry and

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furious. Contributing to this are some of the findings of the Trial Chamber in the Judgement of acquittal, stating that the Prosecution failed to provide appropriate incriminating evidence and witnesses, and that it erred in its fundamental argument, etc. This may be interpreted as the sloppiness and ineptitude of the Prosecution. To be truthful, it should be mentioned that it is not a question of lack of evidence or the Prosecution’s ineptitude, because condemning an innocent person is a mission impossible, which is precisely the task the Prosecution had set for itself. 55. Furthermore, in the Conclusion, in paragraph 74 of the appeal proceedings /as printed/, the Prosecution claims it remains unclear how the majority of the Trial Chamber reached its conclusion on the widespread or systematic attack or on the war crimes. Could this not be an error of fact? The Prosecution covers this up, too, by merely claiming it to be a failure to provide a reasoned opinion. This raises the question of whether everything the Prosecution is claiming in its Appeal Brief is in fact even possible. Is it even possible that there is no reasoning or that it was not provided if one keeps the following, which is generally known, in mind: - the Judgement of acquittal of 31 March 2016 without annexes is 105 pages long (Serbian version), with 357 paragraphs and 414 footnotes; - the composition of the Judgement of acquittal, including deliberation, voting and drafting, lasted from 20 March 2012 to 31 March 2016, or a full four years, and it is certainly the first-instance judgement that was worked on the longest at the ICTY; - with the Judgement of acquittal the Trial Chamber judges attached the following: a) Judge Antonetti his concurring opinion on 482 pages with 1,642 footnotes, b) Judge Niang his individual statement on six pages consisting of 21 paragraphs, c) Judge Lattanzi her partially dissenting opinion on 49 pages consisting of 150 paragraphs and 235 footnotes. 56. In paragraphs 42-74 of the Appeal Brief the Prosecution did not find and did not adequately present or explain either legal arguments (although it cites certain jurisprudence) or factual arguments, and in particular it did not provide any arguments as to why some alleged error of law invalidates the judgement, although the

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Prosecution claims that this occurred because the Trial Chamber failed to deliver a reasoned judgement.

Arguments in support of Professor Vojislav Šešelj’s statements by which he challenges Ground 1 D of appeal: The Majority fails to provide a reasoned opinion on JCE liability

57. In this portion of the Respondent’s Brief arguments will be presented in response to the Prosecution’s claims from paragraph 75 to paragraph 108 of the Prosecution Appeal Brief. If a link is sought between the Prosecution’s arguments in the above paragraphs in the Appeal Brief and the Prosecution’s Notice of Appeal, in the Notice of Appeal it could probably be found in paragraph 5, item 6 of the Notice of Appeal, although it is not clear why the Appeal Brief refers to “opinion” while the Notice of Appeal says “without making findings”. 58. Over the course of 33 paragraphs (paragraphs 75-108) of the Appeal Brief the Prosecution finds the error that a reasoned Judgement of acquittal was not provided, and these 33 paragraphs have a total of 90 footnotes (footnotes 233-313) of the Appeal Brief, and all this refers to some 47 paragraphs of the Judgement of acquittal. Let us just recall that the Prosecution emphasises that a reasoned judgement was not rendered, that it lacks reasoning and not that there are errors in the reasoning. Judging by the arguments presented by the Prosecution, if arguments they are, a reasoned judgment was not rendered, although the Prosecution comments and lists 47 paragraphs of the reasoning of the Judgment of acquittal it is challenging. 59. Paragraph 85 of the Prosecution Appeal Brief can serve as a good example that illustrates the Prosecution is not presenting the arguments it is supposed to present in the Appeal Brief. Everything the Prosecution says in that paragraph relates to paragraph 245 of the Judgement of acquittal and at first glance it may be concluded that the Prosecution’s objections are correct, since paragraph 245 of the Judgement of acquittal has neither any footnotes, nor specifically identifies any evidence . Yet, paragraph 245 of the Judgement of acquittal does not have this function or the purpose ascribed to it by the Prosecution. This is because everything that is lacking in

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paragraph 245 of the Judgement of acquittal can be found in detail and specifically in paragraph 244 of the Judgement of acquittal, which has 10 footnotes. 60. Therefore, where the formulation “volunteer deployed by the Accused /…/ may have participated” or just “may have participated” appears in the Judgement of acquittal, the Prosecution intervenes claiming that a reasoned judgement was not delivered and by doing so shows that it is looking for some kind of link in everything in order to have Professor Vojislav Šešelj convicted. The Prosecution is trying to prove that it does not know the difference between relevant facts and mere supporting facts. It may be even possible to describe this by saying that in some cases incomplete findings of fact in reference to absolutely irrelevant facts are presented in a specific manner by the Prosecution to show that the Judgement of acquittal lacks reasoning. 61. Many of the Prosecution positions presented as an error of law in relation to the JCE because a reasoned opinion was not provided are but a transparent manipulation and twisted logic. Every opinion of the Trial Chamber in the Judgement of acquittal about the JCE is challenged by the Prosecution in its Appeal Brief solely from the position “that everyone, even the casual passer-by, is a participant of the JCE,” and therefore so is Professor Vojislav Šešelj. The Prosecution is amazed although it was the one determining and defining participants in the JCE in all of its indictments before the ICTY. Looking at how this was done and at the kind of judgements delivered by the ICTY trial and appeals chambers then it is really not clear why or to what the Prosecution objects. 62. This kind of arbitrariness by the Prosecution in terms of participants in the JCE was frustrated by one of the previous trial chambers conducting pre-trial proceedings and this is why it rejected the Prosecution request for joinder in the cases of Marti ć, Stanišić, Simatovi ć and Šešelj who, according to the Prosecution, were all part of the same JCE. The Prosecution did not appeal this particular decision of the Trial Chamber. 63. The Prosecution did not find, present or explain any legal arguments (although it does cite some jurisprudence) or factual arguments in paragraphs 75-108 of the Appeal Brief nor, in particular, did it provide any arguments explaining why an alleged error of law invalidates the judgement, although it claims this has been the case because the Trial Chamber failed to deliver a reasoned opinion.

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Additionally, in the conclusion in paragraph 108 of the Appeal Brief, the Prosecution claims that it remains unclear how the majority in the Trial Chamber reached its conclusion on Šešelj’s JCE liability. Is it not perhaps possible that this too is an error of fact? The Prosecution also conceals this by claiming that it was in fact a failure to provide a reasoned opinion.

Arguments in support of Professor Vojislav Šešelj’s statements by which he challenges Ground 1 E of appeal: The Majority fails to provide a reasoned opinion on instigation liability

64. In this portion of the Respondent’s Brief arguments will be presented in response to the Prosecution’s claims from paragraph 109 to paragraph 117 of the Prosecution Appeal Brief. If a link is sought between the Prosecution’s arguments in the above paragraphs in the Appeal Brief and the Prosecution’s Notice of Appeal, in the Notice of Appeal it cannot be found in any of the items of paragraph 5 of the Notice of Appeal. This is why it is necessary in this particular place to state that nowhere in the Prosecution Appeal Brief does it say which arguments support which paragraph or statement from the Notice of Appeal. The Prosecution presents arguments in the Appeal Brief which somewhat follow the order of the Notice of Appeal, but this is reached by deduction rather than by a clear citation or precise statement by the Prosecution. Not only does the Appeal Brief lack the necessary precision, but it is also impossible to find that which was described in the Notice of Appeal as a challenge to the Judgement of acquittal, that is, the relevant paragraphs of the Judgement. 65. The Notice of Appeal provides the grounds of appeal and identifies the paragraphs of the Judgement of acquittal to which they refer while the Appeal Brief presents arguments in keeping with and citing paragraphs from the Notice of Appeal and all this is directed at paragraphs of the Judgement of acquittal. This is not found in the Appeal Brief, and the most obvious example are the nine paragraphs (paragraphs 109-117) of the Appeal Brief. 66. As separate arguments, Professor Vojislav Šešelj points out that it is not clear how and in regard to what to state his position, because what the Prosecution

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wrote in these nine paragraphs (paragraphs 109-117) of the Appeal Brief does not address the ground of appeal that the Trial Chamber failed to deliver a reasoned judgement. 67. In paragraphs 109-117 of the Appeal Brief the Prosecution did not find and did not present or explain any legal or factual arguments and in particular it did not state arguments that explain why an alleged error of law invalidates the judgement, which the Prosecution claims is the case because the Trial Chamber failed to deliver a reasoned judgement.

Arguments in support of Professor Vojislav Šešelj’s statements by which he challenges Ground 1 F of appeal: The Majority fails to explain the substantive law it applies

68. In this portion of the Respondent’s Brief arguments will be presented in response to the Prosecution’s claims from paragraph 118 to paragraph 137 of the Prosecution Appeal Brief. If a link is sought between the Prosecution’s arguments in the above paragraphs in the Appeal Brief and the Prosecution’s Notice of Appeal, this can be found in paragraph 6, item 6 of the Notice of Appeal. 69. Within the framework of this ground of appeal with which the Prosecution points out an error of law because the Trial Chamber failed to deliver a reasoned judgement of acquittal, in 20 paragraphs (paragraphs 118-137) of the Appeal Brief the Prosecution states that it is unclear to it what substantive law the Trial Chamber applied. It is interesting that the Prosecution does not know that an integral part of the Judgement of acquittal is a list of substantive law references and all judgements and appeal judgements rendered by both the ICTY and ICTR. 70. In addition to the Prosecution not knowing where to find the lists of references of substantive law the Trial Chamber applied, it is again trying to play some kind of game, by citing paragraphs of the Judgement of acquittal to show that there are hardly any paragraphs and footnotes in the Judgement of acquittal citing substantive law. Of course, the Prosecution seeks the references of substantive law only in the paragraphs of the Judgement of acquittal where they do not belong anyhow. According to paragraph 120 of the Prosecution Appeal Brief (with footnote

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328 of the Appeal Brief), this omission is in paragraphs 192 and 193 of the Judgement of acquittal, but the Prosecution fails to see that the Trial Chamber references the relevant and applied substantive law in paragraphs 190 and 191 of the Judgement of acquittal, where it also give footnotes 145, 146 and 147 of the Judgement of acquittal. 71. This is an opportunity for Professor Vojislav Šešelj to provide in his answer an explanation of the Prosecution’s obvious insinuations. In the Judgement of acquittal, to every crime with which the Prosecution charged Professor Vojislav Šešelj the Trial Chamber devoted a specific and separately marked chapter with numerous paragraphs, referenced with footnotes, as an introduction before stating the Trial Chamber’s conclusion on whether there is liability on the part of Professor Vojislav Šešelj. The Trial Chamber first stated the substantive law and case law it applied. Had the Trial Chamber not done this, it would not even be possible to publish the Judgement of acquittal, because it is the required standard for ICTY judgements. It is not at all clear how the Prosecution conceived that its insinuations would not be discredited. If the Appeals Chamber were to uphold this ground of appeal of the Prosecution, it would be a hitherto unseen scandal at the ICTY. 72. In paragraphs 118-137 of the Appeal Brief the Prosecution did not find, present or explain any legal or factual arguments and in particular it did not state arguments that explain why an alleged error of law invalidates the Judgement, which it claims is the case because the Trial Chamber failed to deliver a reasoned judgement.

III. PROFESSOR VOJISLAV ŠEŠELJ’S RESPONSE TO GROUND 2 OF THE PROSECUTION APPEAL BRIEF: THE CHAMBER ERRED IN FACT BY ACQUITTING THE ACCUSED

Introduction 73. Pursuant to the prescribed requirements on what a respondent’s brief must contain, for Ground 2 of appeal from the Prosecution Appeal Brief, Professor Vojislav Šešelj emphasises the following: (a) he hereby states that he objects to the relief sought by the appellant; (b) he states that he objects to Ground 2 of appeal.

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As for the requirement under (c), arguments in support of these statements must contain: (i) legal arguments, including clear and precise references to the judgement, the relevant provisions of the Statute, the Rules, the jurisprudence of the Mechanism, the ICTY, or the ICTR, or other legal authorities relied upon; (ii) factual arguments including, if applicable, the arguments in support of the assertion that a fact has been sufficiently proven or not, with precise reference to any relevant exhibit, transcript page, decision or paragraph number in the judgment; and (iii) arguments responding to the Appellant's arguments demonstrating why any alleged error on a question of law invalidates the decision and/or any alleged error of fact has occasioned a miscarriage of justice. Professor Vojislav Šešelj wishes to point out that he will substantiate separately all the above cited requirements under (c) in separate portions that follow within the framework of the Prosecution’s Ground 2 of appeal, citing the appropriate headings, order and paragraphs from the Prosecution Appeal Brief. 74. In the introductory paragraph to all the arguments devoted to Ground 2 of appeal (paragraph 138 of the Appeal Brief), the Prosecution emphasises that it considers Ground 1 of appeal as primary in the Appeal Brief, while Ground 2 is set as an alternative should the Trial Chamber not uphold Ground 1 of appeal. This means that should the Appeals Chamber determine that the Trial Chamber did indeed deliver a reasoned Judgement of acquittal, then this activates the argument of Ground 2 of appeal that an error of fact was made. Presenting Ground 2 of appeal in this way, as an alternative – or if the first does not make the hurdle then the second one will – indicates all the variants on which the Prosecution is relying. 75. The Prosecution says that if the Appeals Chamber grants Ground 1 of appeal then it will not even invoke Ground 2 of appeal. Nevertheless, it offers another variant: if the Appeals Chamber does not grant Ground 1 of appeal, it should move on immediately to consider Ground 2 of appeal. This would make logical sense if Ground 1 and Ground 2 were fundamentally different and were completely diametrically opposed. However, this is not the case with the Prosecution Appeal Brief. In Ground 1 of appeal the Prosecution claims the Trial Chamber failed to

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deliver a reasoned judgement which, in the opinion of the Prosecution, is an error of law, and it has tried to show the lack of reasoning with certain facts and substantive law that are supposed to confirm the Prosecution’s argument that there is no reasoning. In Ground 2 of appeal the Prosecution emphasises that the Trial Chamber made an error of fact and almost completely copies the arguments of Ground 1 of appeal, placing them in the context of the six questions it raises in Ground 2 of appeal. This means that if the Appeals Chamber rejects Ground 1 of appeal, by considering Ground 2 of appeal, it will deal with the same arguments as in Ground 1 of appeal, which was rejected. 76. Further to the Prosecution’s claim that a reasoned Judgement of acquittal was not delivered, the Prosecution, through its request to consider Ground 2 of appeal, asks the Appeals Chamber to determine errors of fact. The Prosecution is sending a message to the Appeals Chamber: seek out errors of fact in the reasoning that the Prosecution at the same time claims does not exist. Seek them precisely where they are not to be found in any case. This has been the Prosecution’s typical manner of operating in this case ever since 24 February 2003. The Prosecution has always directed the accused and the judges to seek and deal with the very things that are not there. Seeking errors of fact in the text of the reasoning of the Judgement of acquittal, although it claims that there is no reasoning. 77. Professor Vojislav Šešelj emphasises in particular that paragraphs 10 and 11 of the Prosecution’s Notice of Appeal identify where the errors of fact are located in the Judgement of acquittal: a) paragraphs 192-198 of the Judgement of acquittal (7 paragraphs), b) paragraphs 225-281 of the Judgement of acquittal (57 paragraphs), c) paragraphs 282-285 of the Judgement of acquittal (4 paragraphs), d) paragraphs 297-350 of the Judgement of acquittal (54 paragraphs), e) paragraphs 354-357 of the Judgement of acquittal (4 paragraphs), f) Disposition on page 107 of the Judgement of acquittal. Therefore, in Ground 2 of appeal the Prosecution challenges a total of 126 paragraphs of the Judgement of acquittal and the Disposition on page 107 due to error of fact, and does so if the Appeals Chamber does not grant Ground 1 of appeal, with which the Prosecution challenges 344 paragraphs (paragraphs 14-357) of the

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Judgement of acquittal and the Disposition on page 107 due to error of law, because of the failure to deliver a reasoned judgement. 78. The Prosecution hardly says a word about how it determined the errors of fact in the Judgement of acquittal that lacks a reasoned opinion or is not sufficiently reasoned. Fundamentally, one ought to show understanding for the Prosecution. Everything is an error if it is not the way the Prosecution imagined it. Such a precept is interesting until it leaves the context of a permissible and appropriate struggle for position, opinion, interests of justice, a fair and just trial and consistent pleading of the indictment and as long as it does not develop into impermissible abuse of the prosecutorial function or a peculiar pathology that only the Prosecution has the exclusivity of flawlessness, truth and justice into whose framework the accused, judges, defence and even the public must fit. This is very similar to a husband taking his wife to court and asking the court to order her to love him. 79. Professor Vojislav Šešelj wishes to draw the Appeals Chamber’s attention to the many places in the Prosecution Appeal Brief where, within the same paragraph or sentence, there is intentional interweaving of legal and factual arguments, whereby instead of providing clear and precise references for the legal arguments against the judgement, or to the provisions of ICTY general documents and other legal sources, references are given for factual arguments pertaining even to irrelevant exhibits or transcripts, decisions and paragraphs. This interweaving of legal and factual arguments is equally present in the paragraphs and footnotes for both Ground 1 and Ground 2 of appeal, and this is why anyone reading the text of any of the paragraphs of Ground 2 of appeal is completely certain that they have already read all of it and unavoidably ask the question – why was this copied?

Arguments in support of Professor Vojislav Šešelj’s statements by which he challenges Ground 2 A of appeal: The Majority erred in fact finding that the chapeau elements of crimes against humanity are not proven

80. In this portion of the Respondent’s Brief arguments will be presented in response to the Prosecution’s claims from paragraph 139 to paragraph 157 of the Prosecution Appeal Brief. If a link is sought between the Prosecution’s arguments in

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the above paragraphs in the Appeal Brief and the Prosecution’s Notice of Appeal, it can be found in paragraph 10 and paragraph 11 of the Notice of Appeal under (a): “the chapeau elements of crimes against humanity were not proven [– paragraphs 192-198 of the Judgement of acquittal].” 81. As part of this ground of appeal with which the Prosecution points out an error of fact due to the Trial Chamber concluding that the elements of crimes against humanity were not proven and that the error of fact according to Prosecution allegedly lies in paragraphs 192-198 of the Judgement of acquittal (a total of seven paragraphs), it is necessary to look at what the Prosecution is citing in the paragraphs and footnotes of its Appeal Brief. Footnotes 364, 365, 366 and 367 of the Appeal Brief bring clear answers with regard to what is at hand. 82. The Prosecution cites its own observations and refers to II.C.2.(b) of its Appeal Brief: the Chamber did not give sufficient reasons for its conclusions regarding the crimes with which the accused was charged. From paragraph 47 onwards of its Appeal Brief the Prosecution claims that the Trial Chamber failed to explain what evidence it used for the findings from paragraph 192 and other paragraphs of the Judgement of acquittal and is angered because the Trial Chamber states that the Prosecution failed clearly to prove, meaning they failed to submit sufficient valid evidence. Furthermore, it made up the number of witnesses, in regard to which Professor Vojislav Šešelj has already taken a stand in the paragraphs of his Respondent’s Brief in which he presents his arguments against Ground 1 of appeal. Therefore, the Prosecution claims there was no reasoning provided and the evidence the Trial Chamber used to make its finding was not stated and then, in paragraphs 66- 72 of the Appeal Brief, there are very precise citations of almost all the evidence (footnotes 200-232 of the Appeal Brief) that the Trial Chamber used, took into account and stated in the Judgement of acquittal. In these footnotes there are recognisable sources such as judgements from other ICTY cases and witness testimonies in the Šešelj case. 83. This is how the Prosecution obviously manifests the principle of opposition, as if it does not know what connects the left side of the brain with the right side. In some case, for some location, a Trial Chamber concluded that crimes against humanity were committed and for this reason alone the Trial Chamber in the

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Šešelj case must conclude that crimes against humanity occurred in all the locations in regard to which Professor Vojislav Šešelj has been charged, regardless of the fact that these locations are not identical. At the same time, Professor Vojislav Šešelj must be responsible for crimes against humanity, for instance, in Vukovar, although in the final judgement of the Vukovar Three, the Mrkšić et al. case, it was adjudicated that there had been no crimes against humanity. Therefore, the principle applies that Professor Vojislav Šešelj is always guilty for everything, in every place and at any cost, and if this is not the finding, then this constitutes an error of law because the judgement is allegedly not reasoned and, furthermore, there is no harm in establishing that the judges erred in fact. There is always an error of law and an error of fact if the judgement acquits Professor Vojislav Šešelj. It would seem that this situation, with such Prosecution arguments, was thwarted by the Trial Chamber when in the Judgement of acquittal it separately ruled on Šešelj’s submission on whether the principle of res judicata in other cases before the ICTY applied. 84. The situation is similar when the Prosecution relies on the testimony of witnesses for the Prosecution. In Ground 1 of appeal the Prosecution claims that Professor Vojislav Šešelj subjected Prosecution witnesses to unacceptable pressure by way of threats and bribery, and allegedly this is why they changed their statements and gave testimony in the courtroom, testifying on behalf of Professor Vojislav Šešelj, which is an error of law, because the Judgement of acquittal is not reasoned. Then in Ground 1 and Ground 2 of appeal the Prosecution refers to the Trial Chamber making an error of fact since, on the basis of the testimonies of these witnesses, the only reasonable conclusion can be that Professor Vojislav Šešelj is guilty. This is the manipulation the Prosecution uses in the Appeal Brief, which it considers a completely logical continuation of what it has been doing persistently since 24 February 2003. When witnesses say in the courtroom that they do not know why they were summoned as witnesses for the Prosecution, because they have never seen Professor Vojislav Šešelj or mentioned him in the context of events at the locations about which they testified, the Prosecution plays with words, paragraphs and footnotes to make it seem that the witnesses had accused Šešelj and that the Trial Chamber did not comprehend this and precisely because it did not comprehend, this is

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an error of fact. Really, it is difficult for a reasonable trier of fact to comprehend the Prosecution’s fundamental case or any of its other arguments. 85. Can reasonable people even imagine what would happen in the world today if, by chance, the Prosecution’s positions on the compulsory conviction of Professor Vojislav Šešelj for his speech in Hrtkovci in May 1992 were adopted and included in international humanitarian law? Today, as Europe and the entire world is burdened by the so-called migrant crisis, Professor Vojislav Šešelj’s words uttered in Hrtkovci could be seen as a warning to the public that is still valid today, and do not deserve to be a precedent for conviction. The Prosecution is steadfast in its demand that the very word or speech should be treated as an autonomous form of underlying act of crimes against humanity. How is this even possible? 86. In paragraphs 139-157 of the Appeal Brief the Prosecution did not adequately present or explain either the legal or the factual arguments, and in particular did not provide arguments explaining why an alleged error of fact led to a miscarriage of justice, which it claims happened because the Trial Chamber erred in fact.

Arguments in support of Professor Vojislav Šešelj’s statements by which he challenges Ground 2 (B) of appeal: The Majority erred in fact in finding that Šešelj is not responsible for crimes as a member of a JCE

87. In this portion of the Respondent’s Brief arguments will be presented in response to the Prosecution’s claims from paragraph 158 to paragraph 171 of the Prosecution Appeal Brief. If a link is sought between the Prosecution’s arguments in the above paragraphs of the Appeal Brief and the Prosecution’s Notice of Appeal, it can be found in paragraph 10 and paragraph 11 of the Notice of Appeal under (b): “the Accused is not responsible for crimes as a member of a JCE [– paragraphs 225- 281 of the Judgement of acquittal].” 88. Therefore, in 14 paragraphs (paragraphs 158-171) of the Appeal Brief and 50 footnotes (footnotes 423-472 of the Appeal Brief), the Prosecution presents arguments supporting the claim that the Trial Chamber made an error of fact that was presented in 57 paragraphs (paragraphs 225-281) of the Judgement of acquittal and

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precisely 100 footnotes (footnotes from 225 to 281 /as printed/ of the Judgement of acquittal). 89. It must not be forgotten that in Ground 1 of appeal the Prosecution claimed that these errors of fact were errors of law due to the failure to deliver a reasoned Judgement of acquittal. 90. With this ground of appeal the Prosecution challenges the Judgement and claims that the Trial Chamber made an error of fact in an allegedly unreasoned portion of the Judgement of acquittal, which in paragraphs 222-281 deals with the following questions: Section 1.01 “A. Individual Criminal Responsibility pursuant to Article 7(1) of the Statute for the Commission of a Crime 1. Commission through a Joint Criminal Enterprise”. According to this ground of appeal, in challenged paragraphs 225-281 of the Judgement of acquittal, the Prosecution claims that the Trial Chamber erred in fact in all aspects, listed here by headings from the Judgement of acquittal: “(b) Analysis (i) On the allegation of a common purpose a. Proclamation of Serbian autonomous regions b. Enlistment and deployment of volunteers c. The covert arming of Serbian civilians d. The commission of crimes in the field (ii) On the allegations of a plurality of persons sharing the same views”. 91. In these challenged paragraphs of the Judgement of acquittal, the Trial Chamber could have presented many parts of paragraphs 225-281 of the Judgement of acquittal by using footnotes. However, the Trial Chamber decided to cite many sources, and in its Appeal Brief the Prosecution presents entire citations as errors of fact and even as erroneous findings. Professor Vojislav Šešelj does not present all these arguments in order to challenge the Prosecution’s right to file an Appeal Brief against the Judgement of acquittal but rather to show everything the Prosecution has made use of and where it finds errors of fact. All of this raises the question of whether the Prosecution is perhaps angry with Prosecutor Nice in the Miloševi ć case, who practically gave up on the charges of JCE in that particular case, especially on the

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charges regarding the alleged criminal project of Greater Serbia, which was the cornerstone of the charges against Miloševi ć? 92. In paragraphs 158-171 of the Appeal Brief, the Prosecution did not adequately present or explain the legal or factual arguments, and in particular it did not present arguments that would explain why an alleged error of fact has led to a miscarriage of justice, which it claims happened because the Trial Chamber erred in fact.

Arguments in support of Professor Vojislav Šešelj’s statements by which he challenges Ground 2 (C) of appeal: The Majority erred in fact in finding that Šešelj did not instigate crimes

93. In this portion of the Respondent’s Brief arguments will be presented in response to the Prosecution’s claims from paragraph 172 to paragraph 192 of the Prosecution Appeal Brief. If a link is sought between the Prosecution’s arguments in the above paragraphs of the Appeal Brief and the Prosecution’s Notice of Appeal, it can be found in paragraph 10 and paragraph 11 of the Notice of Appeal under (c): “the Accused did not instigate crimes [– paragraphs 282-285 of the Judgement of acquittal].” 94. The core of all the arguments, objections and allegations by the Prosecution as part of this ground of appeal is the Prosecution’s argument that every word uttered by Professor Vojislav Šešelj represents an act of instigating the commission of crimes and, of course, the Prosecution is angry and finds an error of fact when this opinion is not upheld and shared by the Trial Chamber judges. 95. Professor Vojislav Šešelj would like to draw the attention of the Appeals Chamber to the fact that the Prosecution at times does not know what it is asking for. An example of this is footnote 325 of the Judgement of acquittal, which annotates paragraph 282 of the Judgement of acquittal. Footnote 325 reads as follows: “The Chamber notes that in its Closing Brief the Prosecution explicitly abandoned charges of direct and public denigration as a persecutory act in relation to the speeches in Mali Zvornik (Prosecution Closing Brief, para. 562, note 1715).”

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96. Is it at all clear to anyone what the difference is between Šešelj’s speech in Mali Zvornik and his speeches in the places in BiH, Croatia and in Hrtkovci which the Prosecution claims Šešelj gave there, and this, for instance, solely in respect of the charges that Šešelj committed persecution as a crime against humanity through speech? It is interesting that in the Appeal Brief the Prosecution acts as if it is not aware or does not admit that it has given up on the charges of public and direct denigration as an act of persecution in connection with the speech in Mali Zvornik. 97. In paragraphs 172-192 of the Appeal Brief the Prosecution did not adequately present or explain either the legal arguments or the factual arguments and in particular did not present arguments explaining why an alleged error of fact resulted in a miscarriage of justice, which it claims happened because the Trial Chamber committed an error of fact.

Arguments in support of Professor Vojislav Šešelj’s statements by which he challenges Ground 2 (D) of appeal: The Majority erred in fact in finding that Šešelj did not aid and abet crimes

98. In this portion of the Respondent’s Brief arguments will be presented in response to the Prosecution’s claims from paragraph 193 to paragraph 195 of the Prosecution Appeal Brief. If a link is sought between the Prosecution’s arguments in the above paragraphs in the Appeal Brief and the Prosecution’s Notice of Appeal, it can be found in paragraph 10 and paragraph 11 of the Notice of Appeal under (d): “the Accused did not aid and abet crimes in which the Šešeljevci participated [– paragraphs 297-350 of the Judgement of acquittal].” 99. Without Professor Vojislav Šešelj wishing to correct the Prosecution’s text of the Appeal Brief or to clarify what the Prosecution wrote, note must be taken of the following. In paragraphs 10 and 11 of the Notice of Appeal, the Prosecution identified the error of fact under (d) that the Accused did not aid and abet crimes in which the Šešeljevci participated as appearing in paragraphs 297-350 of the Judgement of acquittal. In the Appeal Brief, paragraphs 193-195, the Prosecution however identifies the error of fact that the Accused did not aid and abet crimes as appearing in paragraph 356 of the Judgement of acquittal.

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100. It is difficult to present arguments and challenge something that nobody understands or knows to what it refers, yet this may be the very place to illustrate how the Prosecution operates when issuing cumulative charges and how it understands them. If it is possible to provide a picturesque example of how the Prosecution operates in the case against Šešelj, it might look like this: It would be, to put it in football jargon, like watching a foul be committed in centre field from a certain place in the stands of a stadium. Someone on the north side of the stadium then says – that is a war crime, someone in the south stand claims it is a crime against humanity, someone in the west stands shouts even more loudly that it is genocide, someone from the east stand says – people, no, it is torture, someone from the north-west stand says – people, it’s rape, and so on and so forth, everyone presenting their own position and view, and then the Prosecution comes along and says – we will issue charges for everything you shouted out from the stands. That foul in centre field is a war crime, and a crime against humanity, and genocide, etc. Since this seems quite nonsensical regardless of how justified the need is to define the scope of the foul in centre field, the Prosecution then comes up with the idea of giving it a legal form and says – if not condemned for all of these, then let it be the alternative: if persecution is not possible then let it be for instigating persecution, if that too is not possible, then let it be aiding and abetting persecution. 101. Without any intention of belittling or joking about any crime or criminal act, paragraph 100 of this Respondent’s Brief is a picturesque representation of how the Prosecution operates in the case against Professor Vojislav Šešelj. Is an event not the same regardless of the angle or side from which the event is viewed? 102. In paragraphs 193-195 of the Appeal Brief the Prosecution did not adequately present or explain either the legal arguments or the factual arguments and in particular did not present arguments explaining why an alleged error of fact resulted in a miscarriage of justice, which it claims happened because the Trial Chamber erred in fact.

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Arguments in support of Professor Vojislav Šešelj’s statements by which he challenges Ground 2 (E) of appeal: The Majority erred in fact in finding that Šešelj did not physically commit persecutions, as well as deportations and other inhumane acts (forcible transfer)

103. In this portion of the Respondent’s Brief arguments will be presented in response to the Prosecution’s claims from paragraph 196 to paragraph 215 of the Prosecution Appeal Brief. If a link is sought between the Prosecution’s arguments in the above paragraphs in the Appeal Brief and the Prosecution’s Notice of Appeal, this can be found in paragraph 10 and paragraph 11 of the Notice of Appeal, probably or perhaps under (d): “the Accused did not physically commit persecutions, deportation and other inhumane acts [– forcible transfer, paragraphs 354-357 of the Judgement of acquittal].” 104. Here too it must be said that the Prosecution Appeal Brief does not follow the Notice of Appeal. A simple glance at paragraphs 196-215 of the Prosecution Appeal Brief cannot establish precisely to which portion or paragraph of the Notice of Appeal the Prosecution refers in its claims of error of fact. 105. If one deciphers everything the Prosecution wrote in paragraphs 196-215 of its Appeal Brief, then one notices that this is in reference to Professor Vojislav Šešelj’s speech in Hrtkovci and, supposedly, the speech in Vukovar, which never happened. Judging by the footnotes in the Prosecution Appeal Brief annotating the paragraphs (paragraphs 196-215) of the Prosecution Appeal Brief, it is clear that the error of fact according to the Prosecution is most present in the paragraphs representing error of law due to the failure to deliver a reasoned Judgement of acquittal. 106. In paragraphs 196-215 of the Appeal Brief the Prosecution did not adequately present or explain either the legal arguments or the factual arguments and in particular did not present arguments explaining why an alleged error of fact resulted in a miscarriage of justice, which it claims happened because the Trial Chamber erred in fact.

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IV. PROFESSOR VOJISLAV ŠEŠELJ’S RESPONSE TO THE REMEDY IN THE PROSECUTION APPEAL BRIEF

Introduction to positions on the remedy requested

107. In paragraphs 8 and 12 of the Notice of Appeal the Prosecution identified the remedy it would seek and support with arguments in the Appeal Brief to be filed with the Appeals Chamber. Practice Direction MICT/10 regulates precisely what must be found in a Notice of Appeal and Appeal Brief and, as for the legal remedy, the remedy sought must be specifically stated for each ground of an appeal. 108. Pursuant to the above requirement, in the Notice of Appeal the Prosecution at the end of Ground 1 and Ground 2 of appeal, in paragraphs 8 and 12 of the Notice of Appeal, identified precisely the legal remedy sought. In the Prosecution Appeal Brief the grounds of appeal were given as follows: “II. GROUND 1: THE CHAMBER ERRED IN LAW BY FAILING TO DELIVER A REASONED JUDGEMENT”. However, after stating the arguments, concluding with paragraph 137 of the Prosecution Appeal Brief, the Prosecution does not seek any specific legal remedy for Ground 1 of appeal. Article II. “III. GROUND 2: THE CHAMBER ERRED IN FACT BY ACQUITTING THE ACCUSED”. However, after stating the arguments, concluding with paragraph 215 of the prosecution Appeal Brief, the Prosecution does not seek any specific legal remedy for Ground 2 of appeal. 109. Considering that in the Prosecution Appeal Brief under “IV. REMEDY” (from paragraph 216 to paragraph 252 of the Appeal Brief) there are statements that contain elements proposing certain legal remedies, it may be assumed that in this portion of the Prosecution Appeal Brief the Prosecution supposedly met the requirements of presenting the specific legal remedy it seeks for each ground of appeal. 110. And just at the point where it would be expected that the legal remedy sought would be systematically divided between Ground 1 and Ground 2 of appeal, or at least that the legal remedy sought in the Notice of Appeal would be copied, the Prosecution started to use a system of its own to present the arguments (it is unclear

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why or whether there is room for arguments in this portion and in particular if these arguments support the specific legal remedy) and legal remedies. Simply, in the case against Professor Vojislav Šešelj the Prosecution never did anything pursuant to the prescribed rules of the ICTY, and now the MICT. 111. The portion of the Prosecution Appeal Brief under “IV. REMEDY” (from paragraph 216 to paragraph 252 of the Appeal Brief) was divided into two parts:

Section 2.01 A. The Appeals Chamber should find Šešelj criminally responsible and sentence him accordingly (from paragraph 219 to paragraph 250 of the Appeal Brief). Section 2.02 B. In the alternative, the Appeals Chamber should order a retrial (paragraphs 251 and 252 of the Appeal Brief). It is unclear how Professor Vojislav Šešelj or even the Appeals Chamber can follow these Prosecution statements, when they were simply thrown together without any regard for the precisely stated requirements of Practice Direction MICT/10. 112. In this way the Prosecution forces even the Appeals Chamber to keep to and follow the way in which the Prosecution organised its basic arguments. Without any intention on the part of Professor Vojislav Šešelj to correct or edit the Prosecution Appeal Brief, he will deal hereunder with the Prosecution’s positions while respecting the order found in the Prosecution Appeal Brief. Of course, the remark stands that the Prosecution in its Appeal Brief failed to keep to the grounds or arguments, or even to the numbering and sequence of its allegations in the Appeal Brief.

Professor Vojislav Šešelj’s response to the legal remedy in the Prosecution Appeal Brief under (A): “The Appeals Chamber should find Šešelj criminally responsible and sentence him accordingly”

113. In this portion of the Respondent’s Brief arguments will be presented in response to the Prosecution’s claims from paragraph 219 to paragraph 250 of the Prosecution Appeal Brief. Problems arise if a link with the Prosecution’s Notice of Appeal or anything in it that supports this portion of the Appeal Brief is sought because the large number of arguments organised by headings and subheadings makes

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it difficult to arrive at the specific legal remedy that is sought and to know to which of the two grounds of appeal they apply. 114. Let us take paragraph 220 of the Prosecution Appeal Brief as an example, where the Appeals Chamber is asked to conclude that there is no reasoned opinion for war crimes (Ground 1 of appeal) and to find, based on the evidence, that the war crimes have been proven beyond reasonable doubt… Any reasonable person would pose the question of whether this is at all possible. Is this a specific legal remedy or an argument? Regardless of what is in question, it is not at all clear what the Prosecution said, if one bears in mind that it is also citing footnote 619 of the Appeal Brief. All this was stated for Ground 1 of appeal, that the Trial Chamber failed to deliver a reasoned judgement. Does this mean that the Appeals Chamber is supposed to provide reasoning for the Judgement of acquittal by the Trial Chamber? Is the Prosecution asking the Appeals Chamber to correct the errors? If it is a matter of correcting errors, the Prosecution in its Notice of Appeal did not even seek this legal remedy for Ground 1 of appeal (paragraph 8 of the Notice of Appeal). 115. In paragraph 221 of the Appeal Brief the Prosecution is asking the Appeals Chamber to find that an error exists on the basis of Ground 1 and Ground 2 of appeal, relating to the findings of widespread or systematic attack (referring supposedly the civilian population) and a nexus with Hrtkovci, and that the Appeals Chamber should find that there was a crime against humanity. It seems that arguments are being made in support of the legal remedy, but it is not clear which legal remedy. Since it is asking the Appeals Chamber first and foremost to correct the errors, then this could only refer to the legal remedy from Ground 2 of appeal in the Prosecution’s Notice of Appeal (paragraph 12) but by no means Ground 1 of appeal from the Notice of Appeal (paragraph 8). 116. Skipping over the paragraphs that follow, because they repeat arguments that have already been stated in portions of the Prosecution Appeal Brief within the framework of Ground 1 and Ground 2 of appeal, the next paragraph having anything to do with the legal remedy that is sought is paragraph 231 of the Prosecution Appeal Brief. In this paragraph the Prosecution again cites Ground 1 and Ground 2 of appeal, i.e. that the Judgement of acquittal was not reasoned and that an error of fact was made so that the Appeals Chamber should find that a common criminal purpose

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existed, exactly as the Prosecution claims, but by citing footnote 649 of the Appeal Brief the Prosecution clarifies that it is not claiming that a common criminal purpose existed in connection with the events in Vojvodina (Serbia). Since the Appeals Chamber is being asked first and foremost to correct the errors, then this could only refer to the legal remedy from Ground 2 of appeal in the Prosecution’s Notice of Appeal (paragraph 12) but by no means Ground 1 of appeal from the Notice of Appeal (paragraph 8). 117. Skipping over the paragraphs that follow, in which for the third time the same sequence of arguments is repeated starting with paragraph 14 of the Prosecution Appeal Brief onwards, one arrives at paragraph 238 of the Appeal Brief. This paragraph details what it is the Appeals Chamber is supposed to find, but not on which ground of appeal, whether Ground 1 or Ground 2. Following the logic in the Notice of Appeal it would have to refer to Ground 2 of appeal. 118. In paragraph 239 of the Appeal Brief the Prosecution refers to Ground 1 and Ground 2 of appeal and asks the Appeals Chamber to correct the error – then this could only refer to the legal remedy from Ground 2 of appeal in the Prosecution’s Notice of Appeal (paragraph 12) but by no means to Ground 1 of appeal from the Notice of Appeal (paragraph 8). 119. In paragraph 242 of the Appeal Brief the Prosecution presents arguments and asks the Appeals Chamber to correct the error in regard to instigation, so according to some kind of logic this could be interpreted as being related to Ground 2 of appeal, but it is not possible to establish what the legal remedy is. 120. In paragraph 243 of the Appeal Brief the Prosecution presents arguments for Ground 1 and Ground 2 of appeal and asks the Appeals Chamber to correct the error in regard to aiding and abetting, so according to some kind of logic this could be interpreted as being related only to Ground 2 of appeal, but it is not possible to establish what the legal remedy is. Almost exactly the same is repeated in paragraph 246 of the Prosecution Appeal Brief. 121. In paragraph 247 of the Appeal Brief the Prosecution presents arguments for Ground 1 and Ground 2 of appeal and asks the Appeals Chamber to correct the error in regard to the physical commission of persecution through speech, so

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according to some kind of logic this could be interpreted as being related to Ground 2 of appeal, but it is not possible to establish what the legal remedy is. 122. In paragraph 248 of the Appeal Brief the Prosecution asks the Appeals Chamber to convict Šešelj for seven crimes as a participant in the JCE, or, in the alternative, for the instigation, aiding and abetting of seven crimes. To some extent this corresponds to the legal remedy requested under Ground 1 of appeal, paragraph 8 of the Prosecution’s Notice of Appeal, and under Ground 2 of appeal, paragraph 12 of the Prosecution’s Notice of Appeal. 123. In paragraph 249 of the Appeal Brief, the Prosecution asks the Appeals Chamber to convict Šešelj for having physically committed one crime in Vukovar and for three crimes in Hrtkovci that he committed through speech. This should correspond to one of the legal remedies requested under Ground 1 of appeal from paragraph 8 of the Prosecution’s Notice of Appeal and possibly Ground 2 of appeal from paragraph 12 of the Prosecution’s Notice of Appeal.

Professor Vojislav Šešelj’s responses to the legal remedy from the Prosecution Appeal Brief under B: “In the alternative, the Appeals Chamber should order a retrial”

124. In this portion of the Respondent’s Brief arguments will be presented in response to the Prosecution’s claims from paragraphs 251 and 252 of the Prosecution Appeal Brief. A legal remedy – retrial – is sought therein, reference is made to the Appeals Chamber’s discretion to determine on its own which legal remedy to apply, and the Appeals Chamber is reminded that the case against Professor Vojislav Šešelj is the most important case ever conducted before the ICTY.

Professor Vojislav Šešelj’s closing remarks and comments on the Prosecution Appeal Brief

125. In this portion of the Respondent’s Brief Professor Vojislav Šešelj will briefly present remarks and comments on the legal proceeding in the ICTY case The Prosecutor v Vojislav Šešelj , with reference to the Prosecution’s Notice of Appeal and

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Appeal Brief. Almost all the aspects of the court proceedings became a public matter from the first day of his detention, 24 February 2003. The public in Serbia and the region, and it may be said in the entire world, particularly that part of it who are in the legal profession and politics, are fully familiar with the all the details of this marathon trial. The Calvary that Professor Vojislav Šešelj had to endure procedurally and formally, as well as fundamentally, in regard to substantive law, is also known to everyone, even to the members of the UN Security Council. 126. It must be said that the criteria in criminal law to raise an indictment against Professor Vojislav Šešelj were never met. Even Carla del Ponte acknowledged this in her book. Still, once the court case was launched, the ICTY Prosecution, as an important segment of international justice, should have managed and channelled these proceedings differently. Instead of doing so, the Prosecution decided to impose its premise concerning the charges by force on the Trial Chamber and the public, and in order to succeed in this, it conceived a unique system of how to abuse its procedural authority and to drag the case out to the maximum, hoping that in the meantime something would happen that would make it possible for the Prosecution to impose its wrong position on everyone as the only right one. 127. Initially the Prosecution was counting on time working for it but when Professor Vojislav Šešelj’s right to defend himself was finally re-established, a panic of enormous magnitude broke out in the Prosecutor’s office. Almost all the prosecutors in the Prosecutor’s office took turns, and still they could not prevent the judicial nosedive of the Prosecution’s case, in the courtroom in fact, and this in direct feeds on the internet and delayed TV broadcasts throughout the former SFRY, broadcast even after midnight and watched with great interest by almost the entire former SFRY. 128. With every single testimony, whether it was by experts or prosecution witnesses, the fact that the Indictment did not exist became apparent, or, rather, that in terms of criminal law, there could be no charges. Looking at the entire court case, at all the transcripts and at the briefs filed by Professor Vojislav Šešelj, not by a single word did he say anywhere – I am innocent, I am not guilty, I am not responsible etc. During the trial Professor Vojislav Šešelj never engaged in a discussion of his individual criminal liability as if to defend himself, but in fact always tried to make it

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known that everything he said or wrote was with the purpose of him and the public finally getting an answer to the question of who had accused him, how, why and whether it was at all possible to raise an indictment against Šešelj. 129. After the Prosecution presented its evidence, but before the closing arguments, it was possible for Professor Vojislav Šešelj to be relieved of any criminal liability but the Trial Chamber was swayed by the Prosecution’s request, insistence and plea not to do so, but to conduct a complete analysis of the record and find the basis for a conviction. Since there was none, the solution was found in stalling for which a number of justifications were used in the meantime, which in some way “excuse” (they cannot justify) the detention that lasted beyond measure. It may be said that the rendering of the only possible judgement of acquittal was moulded and adjusted to a timeframe when this would not be a global surprise. If one sets aside those who must always hate Professor Vojislav Šešelj ex officio , his Judgement of acquittal was received by the public as expected. 130. The Prosecution was compelled to appeal the Judgement of acquittal. It is not a matter here of whether there is any ground for an appeal or not, but rather there are other reasons that have greatly paled in the meantime and will not exist any more in a matter of days. 131. There are no provisions or regulations in the MICT Statute, the Rules of Procedure and Evidence and Practice Direction MICT/10 on automatic or ex officio dismissal of a Notice of Appeal or Appeal Brief. The only rule that exists is paragraph 32 of Practice Direction MICT/10, which reads as follows: “NON-COMPLIANCE WITH THIS PRACTICE DIRECTION 32. Where a party fails to comply with the requirements laid down in this Practice Direction, or where the wording of a filing is unclear or ambiguous, the Pre- Appeal Judge or the Appeals Chamber may, within its discretion, decide upon an appropriate remedy, which can include an order for clarification or re-filing. The Pre- Appeal Judge or Appeals Chamber may also reject a filing or dismiss submissions therein.” 132. Pursuant to the prescribed requirements for the Respondent’s Brief, Professor Vojislav Šešelj made his position clear and presented his arguments. As can be concluded from this Respondent’s Brief, Professor Vojislav Šešelj did not dwell on

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the value or the substantive aspects of the arguments the Prosecution used and repeated at least three times in their Appeal Brief. He merely pointed out certain deficiencies, which he will not repeat in what follows, because it would be highly unnecessary. 133. The Ground 1 of appeal described in the Notice of Appeal is hardly recognisable in the Prosecution Appeal Brief. Simply, the Prosecution Appeal Brief does not correspond to Ground 1 of the Notice of Appeal. The required and necessary specificity and precision are not found in the Appeal Brief. Ground 1 of appeal challenges everything in the Judgement of acquittal save for the first few paragraphs. The basis of the claims is that the Judgement of acquittal was not reasoned, that the reasoning is erroneous, that the Trial Chamber failed to deliver a reasoned opinion, that what was written is erroneous reasoning. It is claimed that it is an error of law. When something is said to be an error of law, then it must be said precisely what law prescribes the content and form of the reasoning. It probably exists, but the Prosecution does not state it in its Ground 1 of appeal. If there is any regulation about this, then certainly such a regulation would state precisely what a reasoned opinion must contain and what the standards are – that it should be clear, reflect the course of the proceedings, show the evidence presented, include an assessment of the relevant evidence, particularly what, which fact, is corroborated by what evidence, a clear description of the law applied, the decisions that were taken, and the regulations on which they were based. 134. None of this is found in Ground 1 of the Prosecution Appeal Brief. They simply piled on facts and legal arguments that are supposed to support the Prosecution’s case and there is hardly a single word about what is unclear or unreasoned but should have been reasoned. Citing some of the paragraphs of the Judgement of acquittal is used for this kind of manipulation, but the Prosecution avoids saying a single word about how what it believes is lacking in a specific paragraph may be found in the preceding paragraph or several preceding paragraphs or is perhaps in a completely different portion of the Judgment of acquittal that is thematically devoted to that specific question of fact or law. This is why the entire section of the Prosecution Appeal Brief devoted to Ground 1 of appeal is devoid of the required specificity, fails to follow the paragraphs of the Judgement of acquittal

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and even lacks the prescribed required citing of the appropriate part of the Prosecution’s Notice of Appeal. 135. As concerns Ground 2 of appeal, the situation is to some extent different. However, here too not only are major errors visible but so are the absence of specificity or reference to appropriate parts of the Prosecution’s Notice of Appeal and the constant repetition of everything that was written in Ground 1 of appeal. It is characteristic of Ground 2 of appeal that the Prosecution does not demonstrate a single error of fact but rather assails the findings of the Trial Chamber and the manner in which they were reached. An error of fact exists whenever judges establish that Professor Vojislav Šešelj did not do such and such a thing and the Prosecution lists a considerable amount of evidence presented in the courtroom demonstrating that Professor Vojislav Šešelj in fact did do this, and by doing so it reminds the public, the Trial Chamber and the Appeals Chamber of this. Such examples cannot be found in any of the Prosecution’s arguments. Simply, the Prosecution sought errors of fact only in the findings but not in the evidence presented and exhibits in the record. 136. At the beginning of its Appeal Brief the Prosecution broaches the topic and recalls that perhaps it was not successful in the case against Professor Vojislav Šešelj because almost all the witnesses for the Prosecution, who to the end remained witnesses for the Prosecution or court witnesses, criticised the Prosecution as they gave their testimony in the courtroom, stating that they did not even know they were witnesses for the Prosecution, that they did not even want to be witnesses, and if their testimony was necessary then they could only be witnesses for the Defence because they did not know with what Šešelj could be charged. There are also other important details that can be found in the court records but are only mentioned here to explain what it is the Prosecution wants to achieve with the Appeal Brief. 137. If it is claimed that the Trial Chamber erred in fact in its findings, why then was it not specifically stated in even a single paragraph of the Appeal Brief, for instance – the judges found this, while the witness said exactly the opposite in the courtroom? This cannot be found in the Appeal Brief. 138. What does the Prosecution wish to achieve with its Appeal Brief? Is the Prosecution able to force the judges of the Appeals Chamber to reach the completely

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opposite finding on the basis of the evidence presented before the Trial Chamber, so that wherever the Prosecution failed to prove anything before the Trial Chamber, the judges of the Appeals Chamber will write – proven by the Prosecution? It is difficult to believe this could happen without creating a global scandal. 139. The Prosecution would be satisfied if the judges of the Appeals Chamber find in favour of the evidence from the statements the witnesses gave Prosecution investigators, but there is a much bigger problem here called chronology. In the initial statements given by Prosecution witnesses to the Prosecution investigators, many of them did not even know of Šešelj, nor did they mention the name of Vojislav Šešelj, and this is particularly true for statements given to investigative organs in the field of one of the sides participating in the armed conflict. Furthermore, even the Appeals Chamber would be forced to face the problem of how every subsequent witness statement given to Prosecution investigators at the Prosecutor’s office was moulded and prepared for use against Vojislav Šešelj. However, even this is not the end of the problem. What is to be done with the testimonies of these same witnesses in the courtroom in other cases that have concluded before the ICTY? Therefore, today the Prosecution again is asking for the impossible. 140. Many expected that the scope of the Judgement of acquittal by the Trial Chamber would be written on a great many pages. This did not happen, probably because the judges could not reach agreement and decided to respect the minimum of accord so that the judgment would be rendered and pronounced pursuant to ICTY rules, but they also agreed that each of them would include their personal opinion with the Judgment of acquittal. This is why each of the judges attached their own opinion with the Judgement of acquittal and these, according to all criteria, must be taken into account as a constituent part and reasoning for the Judgement of acquittal. Separate opinions would make no sense otherwise and this was not the objective of prescribing the possibility of judges enclosing an opinion with a judgement. 141. Judge Lattanzi exercised her right and submitted her dissenting opinion. Of course, she kept above all to her personal views and her own conclusions about things, what in her opinion was proven and what was not and ultimately about the question of responsibility. This separate and dissenting opinion of Judge Lattanzi was also made use of by the Prosecution, and it was done very unsuccessfully at that. The

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Prosecution should have analysed it, made it more specific, built on it and interpreted it in a different manner, instead of, in the manner of rather lazy experts, plagiarising it for the most part. Furthermore, it seems quite appalling that the Prosecution cites Judge Lattanzi’s separate opinion as proof of its claim in a paragraph or footnote in the Appeal Brief. To a certain extent this is also an affront. Dissent by judges in separate opinions, neither by form nor by content, or even by reasoning can ever be the same and have the same criteria and conditions as the appropriate factual, legal and other arguments in the Appeal Brief. 142. In keeping with the prescribed requirements, Professor Vojislav Šešelj has challenged all the Prosecution’s grounds for appeal, arguments and legal remedies, but also points out and emphasises that the Pre-Appeal Judge or the Appeals Chamber must apply to the Prosecution Appeal Brief paragraph 32 of Practice Direction MICT/10, which reads as follows: “The Pre-Appeal Judge or Appeals Chamber may also reject a filing or dismiss submissions therein.” If this submission by Professor Vojislav Šešelj is not upheld, it would not be beneficial to proceed with an order for clarification or an order for re-filing of a new Prosecution Appeal Brief, because the proceedings would gain nothing by doing so. The Trial Chamber was faced with the same problem and a on number of occasions, in addition to instructions, it issued reprimands to the Prosecution. Obviously these have not borne fruit. Finally, it must not be forgotten that the responsibility of proving guilt beyond all reasonable doubt lies with the Prosecution. After almost a full 14 years, they have not been able to convince either the judges or the public, and, judging by the Appeal Brief, they have no intention of doing so.

(By expert team member Zoran Krasi ć)

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FIRST SUPPLEMENTARY RESPONSE TO THE PROSECUTOR’S APPEAL

143. With this Brief the Defence provides the first supplementary response to the Prosecution Appeal and in particular points out that the Prosecutor has again abused his position, above all with a number of unprofessional comments. Already in the Overview the Prosecution insinuated the possible inadequacy of the Judgement of acquittal, stating that for the basis for the conclusions in the Judgement it is important that the victims, witnesses and the public can be assured that the case has been properly adjudicated. 144. In paragraph 3 of the Appeal it was stated that the public should understand how the ICTY after more than 20 years of existence could arrive at the stunning conclusion that there was no widespread or systematic attack against the civilian population in Croatia or Bosnia and Herzegovina. The Prosecution finds stunning everything that is not to its liking, while actually what is stunning is the Prosecution’s attitude towards the proceedings against Vojislav Šešelj, as is its contribution to trampling the right to trial within a reasonable time. As for the claims in the Appeal regardingVojislav Šešelj’s intentions, the majority of judges found, and provided reasons for their opinion, that this was a matter of political aspirations and that the deployment of volunteers served the purpose of protecting Serbs outside of Serbia. 145. When the Prosecutor criticises the Judgement in the Appeal within the context of the Judgement being superficial and falling short of even the most basic standards of a reasoned opinion, it is necessary to look at how the Indictment was framed as a document and how many times it was amended. 146. In this context, we absolutely agree with the finding of the majority of the members of the Trial Chamber about the lack of precision in the Prosecutor’s approach. The Prosecutor uses words such as “commit”, but says that he has no intent of suggesting that the Accused physically committed all the crimes with which he was charged personally, but that this concerns the charges for persecutions committed through direct and public ethnic denigration in connection with the Accused’s

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speeches in Vukovar, Mali Zvornik and Hrtkovci, and by deportation and forcible transfer in connection with the Accused’s speech in Hrtkovci. 147. The Prosecutor also uses the word “commit” when talking about the alleged involvement of Vojislav Šešelj, as a co-perpetrator, in the joint criminal enterprise. With the word “instigated” Vojislav Šešelj has been charged with contributing through his speeches, statements, acts or omissions to the forming of the decision among the perpetrators to commit crimes. 148. In the Overview of the Appeal a distinction was made between the crimes allegedly committed personally by Vojislav Šešelj and other crimes with which, in the opinion of the Prosecution, he is primarily connected by way of a joint criminal enterprise (JCE). 149. However, the Prosecutor complicates the matter additionally and, in other statements, claims that the acts qualified as crimes belong primarily to the first category, and alternatively to the third category, although the Prosecutor’s theory of criminal enterprise should clearly delineate crimes that are a constituent part of the purpose of the enterprise and others, which are not a part of this purpose but are still their /as printed/ foreseeable consequence, so that the impression is gained that the alleged criminal purpose of the enterprise varies depending on the function of the submission in question. 150. Characterising the means for attaining the goal of Greater Serbia, the Prosecution wavers between ethnic cleansing and the simple effort to achieve territorial continuity for the Serbs of the former Yugoslavia. The Prosecution cannot or does not wish to acknowledge the undeniable fact that Greater Serbia is the idea that is advocated by Dr Vojislav Šešelj and his Serbian Radical Party. 151. When speaking of criminal purpose, the Prosecutor uses the word “violence” and the word “crime” as if they mean the same, which is unacceptable even to a layman, let alone a Prosecutor. Yet the ignorant Prosecutor fails to comprehend that war is violent by nature and that this violence is not necessarily synonymous with crime. 152. The Prosecutor’s submissions should be clear and precise. However, the Prosecutor in his Closing Brief changes direction with his allegations, originally

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claiming that the volunteers of the Serbian Radical Party were under Vojislav Šešelj’s direct control only to explain later that Vojislav Šešelj visited the volunteers, who were emboldened by his presence, or even that the volunteers were a constituent part of the JNA /Yugoslav People’s Army/, and yet Vojislav Šešelj had direct control over them. The Prosecution lacks a clear position but it does have a clear intent to have Šešelj accused even if there are no legal grounds for it. 153. Instead of the Prosecutor stating precisely and clarifying for the Trial Chamber in the Closing Brief and during the trial how and with what evidence he achieved his task of proving the Indictment, the Prosecutor is attempting to make use of the appeals proceeding as a new charging instrument with which he will supplement his theory and harmonise it with the evidence presented. The Chamber was right to notice and point this out in the Judgement. 154. The Prosecutor alleges that the Majority did not issue an opinion on the evidence presented regarding witness testimonies, specifically witnesses recanting statements, and that it did not state which statements it deemed relevant or weigh the contradictions, and that the Majority did not address the question of whether the recantations affected the change to the rule that oral evidence is to be preferred. Furthermore, the Prosecutor points out that his position is that the written statements of the witnesses who recanted testimony should be credited, and their recanting testimony should be rejected. The Prosecution believes that someone else, and it would be best if this were Vojislav Šešelj, ought to be held accountable for its incompetence. 155. In the introductory part of the Judgement the Majority addressed the question of the probative value of both written statements and viva voce testimony. Namely, it is the discretion of the judges when assessing the evidence that was admitted, a discretion that was also applied to the previous written statements of the witnesses, to decide what evidence they will find to be credible. The suggestion of the ICTY Appeal Chamber was to apply the viva voce rule, and in cases when judges would opt for a previous written statement, they must present reasons for overturning the principle that viva voce evidence is to be preferred. During the entire proceedings Vojislav Šešelj both orally and in submissions rightfully insisted that the witnesses be heard viva voce .

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156. In the Appeal Brief the Prosecutor states that the Majority not only fails to consider the pattern in the war crimes, it also expressly rejects evidence that the Prosecution was allowed to lead in order to prove in order to prove a similar pattern of crimes in the municipalities outside the scope of the Indictment. The Chamber notes that the discretionary power of the Judges whether or not to accept the evidence relating to a consistent pattern of conduct must be exercised with caution, bearing in mind the Accused’s criminal responsibility must only be sought for those acts that can be directly or indirectly attributed to him. On the contrary it may also run the risk of leading to a conviction based on facts that were not relevant, and it is therefore important not to impute to the accused responsibility that falls outside the Indictment. This position of the Chamber is quite correct regardless of the Prosecution’s unreasoned opinion. 157. In the Appeal Brief the Prosecutor emphasises that the Majority fails to address evidence of Šešelj’s intent, ideology and goals, and emphasises that the Majority did not address evidence that is most relevant to his criminal intent and thus to the existence of the common criminal purpose, i.e. evidence about Chetnik ideology and goals, and that Vojislav Šešelj declared himself to be a military leader based on Chetnik tradition. It seems that the Prosecution forgot that Vojislav Šešelj in his initial appearance before the ICTY introduced himself as a Chetnik Vojvoda and was proud of this title throughout the trial. 158. It was stated that Vojislav Šešelj promoted himself a military leader, established a military wing of his party and created a War Staff. The Prosecutor did not base responsibility on Article 7(3) of the Statue of the International Tribunal, applicable to superiors in military and civilian structures. During the trial Vojislav Šešelj emphasised, and the Majority agreed, that the SRS-SČP /Serbian Radical Party – Serbian Chetnik Movement/ War Staff had conducted recruitment of volunteers for the JNA, but it actually had no military structure despite what its name suggested, and that the title of Vojvoda which he bestowed upon some was in fact not a military title and did not imply an association with the Serbian Radical Party. Some of the volunteers were local people, and once recruited were in any case not under his control because they were directly incorporated into the Yugoslav Armed Forces, which had their own command and hierarchy.

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159. The expert Theunens in his report and during the trial emphasised that the title Vojvoda was not recognised by either the JNA or the Army of Republika Srpska, and the Trial Chamber was correct to conclude that the title had no official value and did not influence the responsibilities assigned to these same volunteers within the JNA or Army of Republika Srpska, and that therefore these volunteers were not subordinated to the Accused in the theatre of military operations and there was no hierarchical link between the Accused and the volunteers once they were integrated into the structures of the JNA and VRS /Army of Republika Srpska/. 160. The majority of the Trial Chamber correctly concluded based on evidence admitted into the record, which it precisely cites, that the volunteers from the S ČP and SRS had military ID booklets , and that they received financial compensation from the Ministry of Defence of the Republic of Serbia and the Ministry in charge of relations with Serbs outside of Serbia. 161. The Prosecutor objected that the Trial Chamber did not address evidence regarding Šešelj’s ideology and goals. However, the Majority correctly concluded that the goal of establishing Greater Serbia was political . The Chamber admitted into the record numerous fragments from Vojislav Šešelj’s publications, which is an important indicator of whether the speeches conveyed in them can be attributed to the Accused. Vojislav Šešelj has never disavowed a single one of his own sentences, not one of his own words, and it seems that the ideology Vojislav Šešelj advocates and for which he lives is not clear only to Serge Brammertz. 162. The Prosecution was not successful in proving the alleged participation of Vojislav Šešelj in a common criminal plan and the Prosecutor cannot come to terms with this. Yet, the Prosecution really tried. It used all impermissible means to find a witness who could confirm this, but in vain. Something that does not exist and never existed cannot be proven. 163. In this specific case, in order to be able to establish beyond any reasonable doubt that all the participants had the same intent and that in fact a joint criminal enterprise existed, it is necessary to define precisely the common purpose and the exact role of each individual participant in the JCE with which Vojislav Šešelj is charged in this trumped-up Indictment.

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164. In the Judgement the majority of the Trial Chamber correctly found that there was no widespread and systematic attack on the non-Serbian civilian population in Croatia and Bosnia and Herzegovina. 165. The finding by the Majority stems from the evidence that was presented, and the evidence examined primarily points to, as the Trial Chamber correctly found, an armed conflict between enemy military forces, with some civilian components. 166. The Prosecution did not prove the existence of a situation in which civilians were targeted en masse without them having participated in the fighting and representing a threat to the Serbian fighters. The Prosecution could not prove this, either, for the simple reason that this, too, did not exist. From the outset the Prosecution should have known that Vojislav Šešelj had not been involved in any war crimes. It should not have agreed to defend a political indictment. If it had not done so, today it would not be frustrated by the Judgement of acquittal of Vojislav Šešelj, which is the only one possible. 167. The Prosecutor’s claims that the Majority fails to refer to evidence on the record are incorrect and tendentious because the Prosecutor contradicts himself and on the same page of the Appeal states that it is unclear how the Majority came to the conclusion that there was no widespread or systematic attack by citing witnesses VS-1022 and VS-1087, while consciously and intentionally neglecting the Defence argument that explains how civilians fled the combat zones to find shelter in the locations occupied by members of the same ethnic or religious group. 168. It was unequivocally established that the buses provided for transporting civilians from the war afflicted zones were not part of operations to forcibly transfer the population, but rather acts of humanitarian assistance to non- combatants fleeing the zones where they no longer felt safe. 169. The Prosecution states that the alleged widespread or systematic attacks against the non-Serb civilian population came from Vojislav Šešelj, and this through his planned actions and orders, and in this context the Prosecution cites Šešelj’s speech in Hrtkovci. 170. The Trial Chamber correctly concluded that Vojvodina was not a zone of armed conflict, and that the Prosecution has failed to prove in any way, and could not

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have proven, a link between the conflicts in Croatia and Bosnia and Herzegovina and the events in Vojvodina. 171. The Prosecution does not treat as secessionism the unlawful and secessionist goal of declaring the independence of Bosnia and Herzegovina and Croatia and in the Appeal it endeavours to show that members of the Serb forces under the control of the participants in the alleged JCE committed crimes as a means for creating a new state dominated by Serbs. Such claims are completely preposterous and absolutely cannot be legally substantiated. After all, the officials of these states even today do not hide that this was their goal from the very beginning of the war conflicts. 172. However, the Prosecution is persistent in proving what cannot be proven, and in this context in the Appeal Brief states that at trial it tried to prove Vojislav Šešelj’s intent and for its unreasoned claim blames the Trial Chamber, that is, the Majority that delivered the Judgement of acquittal of Vojislav Šešelj. The Prosecution does not provide any evidence and only confirms the impotence and ignorance it manifested throughout the trial. 173. The Majority of the Trial Chamber correctly concluded and reasoned in the Judgement that the recruitment and sending of Serbian Radical Party volunteers to war afflicted areas was not unlawful. It was an act of patriotism of which Vojislav Šešelj and all members of the Serbian Radical Party are proud. It is normal and natural to help one’s own people when they are in trouble. This was the only objective of sending the volunteers. 174. In the Judgement of acquittal the Trial Chamber correctly cited the testimony of witness VS-061, which is consistent with Vojislav Šešelj’s position that the Serbian refugees came from the territories of Grubišno Polje municipality in Western Slavonia, where there had never been any fighting. 175. The Prosecution would like it were it otherwise, but it failed to present evidence to confirm its groundless claim that Serbian refugees came to Hrtkovci from a zone of armed conflict. 176. During the trial Vojislav Šešelj raised the objection that the ICTY did not have jurisdiction to even consider the events in Hrtkovci for the simple reason that

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Hrtkovci is a locality in Serbia and is not an area where there was any armed conflict , so that the jurisdiction of the ICTY cannot extend there. 177. The Prosecution erroneously bases its arguments in the Appeal Brief on the previous statements of witness VS-061, who acknowledged that he had exaggerated in his statements, and that the exchange of houses in Hrtkovci was a private matter between Serbian and Croatian families, and that his earlier statements had actually been full of omissions and biased observations. Certainly there was also malevolence towards Vojislav Šešelj, which, of course, the Prosecution did not wish to hear. 178. The witness also clarified that the murder of the Croat Mijat Štefanac, which was presented as the alarm bell that allegedly triggered the fear, was actually the result of a banal argument among a group of alcoholics in a café that took a bad turn, and he explained that the murderers had been apprehended and put on trial . The record of this trial is unequivocal evidence, for everyone, except for the Prosecution in The Hague. 179. Considering that the statement of witness VS-061 is identical to Vojislav Šešelj’s claims, it is no longer of any interest to the Prosecution in The Hague. The fact is that when a witness tells the truth and when he is no longer of any use to the Prosecution, it says nothing about this in the appeal. This indicates that the Prosecution does not care about the truth and that its only objective is to have Vojislav Šešelj convicted. The Prosecution should not be guided by its hatred of the accused or its personal attitude towards him, and its purpose should be to establish the truth regardless of how much it differs from its charges. 180. In the Appeal the Prosecution cites Vojislav Šešelj’s speech in Hrtkovci on 6 May 1992, claiming that this particular speech was discriminatory and that with this speech Vojislav Šešelj allegedly called for and instigated the persecution of the Croats from Hrtkovci. 181. However, the Trial Chamber correctly assessed and established the facts, finding that the speech was made in a political context, and that it is focused more on the authorities’ position on Serbian refugees than dealing with Croats and that therefore it did not have the effect of a force that drove the Croats out of Hrtkovci. The Majority correctly assessed that the Prosecution did not present the situation

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clearly and that it did not paint a picture that would clearly indicate that civilians were targeted although they took no part in the fighting and did not pose any threat to the Serb fighters. 182. The majority of the Trial Chamber correctly concluded, because it is the only reasonable conclusion, that the Prosecutor did not fulfil his task, that certain events cannot be construed to represent the existence of a general and widespread attack, and that there was no persecution or forcible transfer of civilians. Therefore, the requirements of Article 5 of the Statute were not met for Croatia, Bosnia and Herzegovina or Vojvodina. 183. Further to the Prosecution’s allegations about Vojislav Šešelj’s criminal responsibility and the alleged existence of a JCE, the Trial Chamber correctly decided and reasoned that this did not exist in the case of Vojislav Šešelj and that in this regard, too, the Prosecution could not prove something that did not exist. 184. The Prosecution charges Šešelj with responsibility for physical commission limited to the crimes of persecution, deportations and inhumane acts through speech and for commission as a co-perpetrator by participating in a joint criminal enterprise, for instigation, aiding and abetting, so the majority of the Trial Chamber correctly assessed that the Prosecution’s actions were inadequate and confused. After all, the entire Indictment is like this. 185. In pursuit of his only objective – to charge Vojislav Šešelj no matter the cost - the Prosecutor used different terms to define the notion of the assumed criminal purpose, and used the phrase “new Serb-dominated state”, without providing any explanation anywhere of the meaning of such phrases. The Prosecution failed to do this even in the Appeal Brief. Just as in the entire appeal proceedings, the Prosecution here too only presents objections without any arguments to the Trial Chamber’s findings, although it lacks even a shred of evidence for what it claims. 186. The Prosecutor singles out the establishment of the Serbian autonomous regions in Croatia and Bosnia and Herzegovina as acts that are part of the criminal plan to create Greater Serbia. In so doing, the Prosecution completely ignored the events that preceded the events that are covered by the Indictment. Namely, the ICTY Prosecution, for reasons that are known only to it, completely failed to deal with the unlawful secession of Croatia and BiH from the SFRY.

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187. The majority of the Trial Chamber correctly assessed, considering the evidence presented to the Trial Chamber, that by his actions the Prosecutor muddied up the chronology of events and intentionally distorted facts,. During the entire proceedings against Vojislav Šešelj, including the appeal, one gets the impression that the Prosecution is aware that evidence does not exist that would support the Prosecution’s allegations and that its intention is to impress its infallibility on the Trial Chamber and Appeals Chamber and its status as someone whom the Trial Chamber and now the Appeals Chamber serve. The Trial Chamber has preserved its credibility by correctly assessing the Prosecution’s evidence – and the same type of approach towards the Prosecution can be expected of the Appeals Chamber - treating it only as one of the parties to the proceedings rather than as its adviser, which is what the Prosecution would obviously want. 188. During the trial Vojislav Šešelj presented only confirmed facts, those supported by evidence presented by the Prosecution in The Hague. This evidence unequivocally indicates that Croatia and Bosnia and Herzegovina seceded from the former Yugoslavia, that this secession was considered to be contrary to the then valid Yugoslav Constitution and that a large number of Serbs who lived in these territories were opposed to secession and wanted Yugoslavia to survive and themselves to stay in the state that existed at the time. 189. The Majority in its decision cited witness Tomi ć and in its reasoning concluded that the Croats had adopted the symbols and markings linked to the regime in power in Croatia during the Second World War, which awoke painful memories and justifiable fear among the Serbian population that had endured horrific suffering in the Independent State of Croatia, where the Ustashas committed bestial acts against the Serbs while wearing the same symbols that now appeared in the war-affected areas in the period covered by the Indictment against Vojislav Šešelj. 190. In its decision the Trial Chamber illustrated that the response to the “centrifugal” identitarian movement of the new Croatian nation was the centripetal Serbian identitarian movement born of a feeling of vulnerability and a lack of security in the regions in question, which was completely justifiable and to be expected considering that the Serbian wounds had not healed. All of the Prosecution’s evidence pointed to this, including the statements of witnesses who showed overt animosity

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towards the accused Šešelj. These witnesses demonstrated obvious hatred of Vojislav Šešelj, as well as towards Serbs in general, and still even their testimonies favoured this interpretation of events. 191. Important changes that were enacted in the newly created Croatian state, in addition to the introduction of Ustasha symbols and markings, related to the fact that the Serbian people, who had been a constituent people, were downgraded to a minority, which additionally troubled and frightened the Serbs because all of this reminded them of the bestial crimes perpetrated by the Ustashas against the Serbs there. At the time there were still living eye-witnesses of the Ustasha crimes, who had somehow survived the Independent State of Croatia, so the fear of new Ustasha crimes further increased. 192. Witness VS-004 testified that during this period the new Croatian authorities adopted discriminatory laws applying to minorities in Croatia and, considering the altered status of the Serbian people who were declared a minority, they also applied to the Serbs in Croatia. Although the witness did not say as much, the fact is that these discriminatory laws were in fact adopted because of the Serbs, who had always been hated by the Croats, who could hardly wait to make it official. This witness also said that the SAO /Serbian Autonomous District/ Slavonia was founded on 12 August 1991 with the purpose of protecting the political interests of this territory in which Serbs were the majority, rather than for the purpose of committing crimes. 193. On the basis of all the facts presented throughout the trial, which is also corroborated by the statement of witness VS-004, the majority of the Trial Chamber correctly found that it cannot be concluded beyond all reasonable doubt that the proclamation of the autonomy of the Serbian people in Croatia and Bosnia and Herzegovina stemmed from a criminal intent. 194. The expert Theunens described the legal and constitutional framework of the former Yugoslavia and matters concerning the recruitment of volunteers. The expert concluded that the recruitment of volunteers was permissible under existing regulations and that volunteers were integrated into the JNA and Territorial Defences, and that there was no hierarchical link between the accused Šešelj and the volunteers in the field , contrary to the Prosecutor’s claims in the Appeal Brief.

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195. In its decision the majority of the Trial Chamber stated and reasoned that it was impossible, on the basis of this and other available evidence that supports the expert’s claims, to exclude the reasonable possibility that the purpose of the recruitment, financing and transportation of volunteers was to take part in protecting the Serbian population, bearing in mind that other ethnic groups organised in the same manner. This position of the Trial Chamber is absolutely correct and the Prosecution, even in the Appeal Brief, did not provide any new facts that would be relevant for changing this position. 196. Witnesses Aleksandar Stefanovi ć and Goran Stopari ć also testified in support of Vojislav Šešelj’s statements about the goals of the Serbian Radical Party, and these goals were that he wanted and needed to protect the threatened Serbian population. These two witnesses also testified that Vojislav Šešelj in his speeches encouraged volunteers to fight courageously and that they never heard that the accused Vojislav Šešelj in Vukovar had asked volunteers to kill anyone. No one has ever heard this, because it never happened. This claim is purely a malicious fixation of the ICTY Prosecution, whose officials cannot even conceal their animosity towards Šešelj. They do not have any right to this, regardless of the fact that in front of the entire world he showed them to be ignorant and instruments in the hands of the Western powers, who find Šešelj’s politics unacceptable merely because he wants to safeguard the independence and dignity of his state and his people. 197. The majority of the Trial Chamber correctly assessed that the Prosecutor failed to prove “beyond all reasonable doubt” that the recruitment and deployment of volunteers meant that Vojislav Šešelj knew about the aforementioned crimes, that he issued instructions for them or supported them. It was correctly assessed that it cannot be said that any of these crimes were part of the plan with the goal of Greater Serbia or even the plan with the goal of protecting Serbs in territories encompassed by the war and where there was a major threat to the Serbs. 198. The Prosecution’s claims in the Closing Brief based on Šešelj having known that certain volunteers, due to their criminal past, were disposed to perpetrating crimes, but not acting energetically enough to prevent these crimes, are also erroneous. The Prosecution’s claims are completely abstract. They are not based on any evidence and are contrary even to the Indictment itself. Namely, it is

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undeniable even for the Prosecution that Vojislav Šešelj was not a military commander and that there was no hierarchal link between him and the volunteers. Furthermore, the Prosecution does not base Šešelj’s liability on command responsibility, which again makes things confusing when it charges the Accused for failing to act, while it is abundantly clear that the volunteers were subordinated to the military authorities. Therefore, the Prosecution does not even need any evidence. All it wants is for Šešelj to be convicted and they expect the Trial and Appeals Chambers to make this wish a reality. 199. The majority of the Trial Chamber correctly assessed the lack of evidence for the existence of a common criminal plan. The lack of evidence actually means that such evidence could not even have been found, because it does not exist. Had there been even one single relevant piece of evidence, the Prosecution would surely have tried to present it to the Trial Chamber. This is why the Prosecution’s objection in the appeal proceedings to the Chamber’s decision to reject the allegations regarding the JCE is bewildering, because from the point of view of the law it was the only possible one. 200. The majority of the Trial Chamber correctly assessed the matter of Vojislav Šešelj’s speech in Hrtkovci and concluded that, based on the evidence, the Accused cannot be held responsible under Article 7(1) of the Statute for the physical commission of acts of persecution as a crime against humanity. It remains unclear why the Prosecution insists that someone can influence the physical commission of crimes with their speech, even if it is a speech by Vojislav Šešelj, whom the Prosecution hates. 201. The Trial Chamber was unanimous in its finding that the Accused cannot be considered responsible under Article 7(1) of the Statute for the physical commission of the crimes of deportation and inhumane acts (forcible transfer) as crimes against humanity. This too is the only possible finding, regardless of the persistent attempts of the ICTY Prosecution to convince the Appeals Chamber otherwise, particularly as this was done without any evidence. 202. Concerning the Prosecution’s objection on the matter of substantive law, it is important to emphasise that the Prosecutor is wrong in alleging that the Trial Chamber failed to explain the substantive law it applied and, furthermore, that the

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Chamber was obliged to state the precedents on which its bases it findings. This, too, is only an arbitrary position on the part of the Prosecution, without basis in any legal documents. 203. For the Chamber to be able to find that instigation to commit crimes existed, there must be a physical element, or actus reus , for the acts constituting instigation, which must have contributed substantially to the commission of crimes, that is, that someone was led to commit a crime, as well as mens rea , the mental element showing the intent of the instigator to cause the commission of certain crimes. The majority of the Trial Chamber considered and correctly found that it is necessary to prove that the instigator used different forms of persuasion, promises, threats and enticement in relation to the physical perpetrators. This understanding of instigation was influenced by the Prosecution’s Pre-Trial Brief, paragraph 146, where in footnote 498 it cites Article 91 (1) of the Criminal Code of Rwanda. 204. The Prosecution’s conclusion on page 46, paragraph 132 is unclear where it states that the Majority failed to provide legal support for its standards and did not explain why it introduced an additional requirement, and that for this reason the Prosecution believes that the majority of the Trial Chamber failed to provide a reasoned opinion, when you consider that its opinion stems from the Prosecutor’s brief and the understanding that it supports the aforementioned principle. 205. The Prosecution insists on repeating that the Chamber failed to provide a reasoned Judgement of acquittal, which is absolutely incorrect. The Trial Chamber precisely stated that for a Chamber to be able to reach a finding of aiding and abetting crimes, as actus reus it is necessary for there to be practical assistance, encouragement, or moral support that had a substantial effect on the perpetration of the crimes. This did not exist. The Trial Chamber stated that the aider or abettor must have known that these acts had contributed to the perpetration of crimes and been aware of the essential elements of the crime, including the intent of the principal perpetrator. Still, in the Appeal Brief the Prosecution emphasises that the Majority explicitly failed to reject certain conduct of the accused Šešelj from paragraph 353 of the Judgement, because no case law was provided in support of the finding to demonstrate the opposite. As if something like this were necessary for the Trial Chamber to deliver a correct finding?! It seems that the Prosecution does not know

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that in this specific case it is enough that in footnotes 411, 412 and 413 of the Judgement the majority of the Trial Chamber cited the substantive law it applied when assessing the responsibility for aiding and abetting. 206. The Prosecutor also cites and incorrectly points to page 447 of Judge Antonetti’s separate concurring opinion, where the Judge explains that the term “specific direction” is unclear. Judge Antonetti, from page 421 to page 431 of his separate opinion, dealt precisely with explaining the terms “aiding” and “instigating”, as well as “specific direction”, citing appropriate case law and judgements. 207. The majority of the Trial Chamber correctly found that the Accused bears no responsibility under Article 7(1) of the Statute for aiding and abetting the crimes listed in the Indictment. The Prosecution did not prove this allegation from the Indictment at all, and proposes nothing new in the appeal proceedings. 208. The majority of the Trial Chamber acted reasonably and clearly in delivering findings on the non-existence of a widespread and systematic attack against the civilian population in Croatia and Bosnia and Herzegovina, and that for the events in Vojvodina there was no link with the armed conflict and no systematic and widespread attack. The Majority correctly adjudicated that Vojislav Šešelj was not responsible for crimes as a member of a JCE, and that Vojislav Šešelj did not instigate the commission of crimes, that is, that Šešelj’s speeches did not incite to violence against the non-Serbian population; and, further, that Vojislav Šešelj did not aid and abet crimes, and that he did not physically commit either persecutions, or deportations and other inhumane acts. 209 . The majority of the Trial Chamber acted correctly when it acquitted Dr Vojislav Šešelj of criminal responsibility on all counts of the Indictment. Considering that the Prosecution did not provide any new arguments in the Appeal Brief and failed to prove any deficiencies in the Trial Chamber’s Judgement, the expectation is that the Appeals Chamber will uphold this decision as the only possible one. 210. This is why the submission is made to the ICTY Appeals Chamber to dismiss the Prosecutor’s appeal as groundless and uphold the Judgement of acquittal for Dr Vojislav Šešelj.

(By expert team member Milan Terzi ć)

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SECOND SUPPLEMENTARY RESPONSE TO THE PROSECUTOR’S APPEAL

211. In addition to all of the facts presented thus far, we deem that it is extremely important to take this occasion to emphasize once again that the entire proceedings conducted against the accused Professor Vojislav Šešelj before the ICTY for almost 14 full years were marked first and foremost by the systematic, persistent and brutal violations of his fundamental human and procedural rights. Consequently, the proceedings themselves and the Tribunal before which they were conducted long ago lost any shred of legitimacy that it might have had upon its establishment. 212. Therefore, we believe that it is necessary to provide in this submission a brief recapitulation of this historical and inappropriately long trial. 213. Professor Vojislav Šešelj voluntarily arrived in The Hague on 24 February 2003, after the text of the Indictment against him was confirmed by Judge O-Gon Kwon on 14 February 2003. 214. Vojislav Šešelj spent the period from 24 February 2003 to 12 November 2014 in continuous detention in the United Nations Detention Unit in Scheveningen. 215. The Indictment against Vojislav Šešelj was amended so many times that the amendments to the Indictment have become a special testament to the Prosecution’s “meandering” in its repeated, yet always futile attempts to “label” the accused Šešelj guilty of anything in any way possible. 216. On 1 November 2004, the Prosecution filed a proposed amended Indictment, which was confirmed by the Trial Chamber in its decision of 27 May 2005. Shortly thereafter, on 15 July 2005, the Prosecution filed a modified amended Indictment. Following a months-long exchange between the Prosecution and the Pre- Trial Chamber, on 8 November 2006 a redacted version of the modified amended Indictment finally saw the light of day. Due to its sloppiness and carelessness, in March 2007 the Trial Chamber ordered the Prosecution to file a reduced modified amended Indictment and the Prosecution complied. However, immediately thereafter, more precisely on 25 June 2007, the Prosecution filed a motion requesting permission to amend this version of the Indictment as well, and it ended up becoming the Second Amended Indictment.

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217. If we keep in mind that the Prosecution raises an indictment upon completion of an investigation, then a trial must follow very quickly after an indictment is confirmed, because an indictment is filed in order to have a trial, and not for the purpose of launching an investigation. Therefore, the Indictment and the charges against the Accused Vojislav Šešelj represent a clear act of arbitrariness by the Prosecution, with the sole aim of thereby attempting to justify the violation of his right to an expeditious trial and clearly demonstrate the unreadiness and inability of the Prosecution to participate competently in the trial. 218. The only case before the ICTY in which the Prosecution conducted an investigation after filing the indictment and detaining the accused is in fact the case against Vojislav Šešelj. It seems strange and abnormal, but the case file predominantly contains Prosecution evidence that was obtained after 24 February 2003. This points out the indisputable fact that the Indictment filed against Vojislav Šešelj was political, which also characterises his entire trial. 219. From the first day of his detention, the Prosecution directly and indirectly endeavoured to have hitherto unseen bans and restrictions established and imposed on Vojislav Šešelj so that he could not prepare for trial even while in detention. From a communication ban, a ban on receiving visitors in the Detention Unit, selecting who can be Vojislav Šešelj’s friend, imposing special conditions and obligations on his wife requiring her to sign an additional statement, which was not required of anyone else wanting to visit their spouse in the Detention Unit, putting a limit of 800 words on the length of his motions and submissions so that for every submission he had to request authorisation, refusals to receive and file Professor Vojislav Šešelj’s submissions, disclosure in English or in electronic format, deciding that the identity of protected witnesses would not be disclosed 30 days before the start of the trial but rather 30 days before their testimony, announcing that the right to cross-examination would be denied and curtailed, all the way to providing him with a faulty video player and many more minor and major infringements on his rights are all examples of the continued and clear determination of the Prosecution to prevent a fair and just trial in the case against Dr Vojislav Šešelj. 220. The few rights that were accorded to all the other accused before the Hague Tribunal were rights for which Vojislav Šešelj had to fight fiercely, even to the

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point of jeopardising his own life. For four solid years he waged a battle to have his right to self-representation acknowledged. Twice the Appeals Chamber had to uphold his right to this. From the very beginning of the proceedings, that is, from 28 February 2003, the Prosecution continuously and steadfastly persisted in requesting that Dr Vojislav Šešelj be assigned counsel, figuring that with such a counsel the trial would be brought to an end somehow, of course to the detriment of Vojislav Šešelj, which was the obvious intention of the Prosecution from the start. 221. Precisely because of this wish of the Prosecution to impose counsel on the accused Šešelj and the refusal to register the members of his team who were assisting him in preparing his defence, it was only at the end of the fourth year of Vojislav Šešelj’s detention that he was able to secure, for the first time, the possibility of a visit by his legal advisers. This was a precedent such as never happened before or after. 222. The refusal to register his legal advisers was only one of the ways in which the Registry persisted in refusing to enable the financing of Professor Vojislav Šešelj’s defence, and thereby its preparation. Despite the decisions by the Trial Chamber, the issue of defence funding remains an unresolved matter to this day, in the appeal stage of the proceedings, and Vojislav Šešelj is the only accused before the Hague Tribunal who has not had a single cent paid out for his defence expenses, even though his defence was an exceptionally successful one and prepared to a high standard. 223. Only Vojislav Šešelj was always ready for the trial, while the Prosecution and the Pre-Trial and Trial Chambers were only ready when they were sure that the conditions for an unfair and unjust trial had been established. To this one must add the continued attacks and political statements made by the Prosecution, culminating, of course, in the ban on the Accused communicating with the outside world on the grounds of the scandalous and legally unfounded explanation that elections were underway in Serbia and that Professor Vojislav Šešelj, unless his right to communication was denied, would influence the forming of the new government. 224. A particular contribution to the “wealth” of violations and abuses of the procedural powers to the detriment of the Accused were also the three cases for contempt of court against Vojislav Šešelj. It is an unprecedented instance in the legal

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practice of civilised states, let alone international courts, that a trial conducted against an Accused on allegations that he had committed the most serious international crimes is interrupted in order to conduct some sort of contempt proceedings. 225. That the Hague Tribunal is a tribunal of double standards is certainly evident in the fact that Vojislav Šešelj was forced to file a motion regarding offences by members of the Office of the Prosecutor, that is, prosecutors, who had interfered with the administration of justice and thereby committed the offence of contempt of the Tribunal. This motion was neither rejected nor adjudicated, but it was instead decided that it would be determined after Vojislav Šešelj’s trial was completed. Therefore, if we know that the Trial Chamber, too, deemed Prosecution officials to be suspect and that their responsibility will be determined at a later time, then one can only imagine how suspect the documents are on which the Prosecution based its allegations. 226. In order to give an idea of the scope of the obstructions Vojislav Šešelj faced to prepare his defence, one must mention figures such as the approximately 600,000 pages of Prosecution material that were not disclosed to the accused Šešelj pursuant to the decision of the Trial Chamber; the redacted versions of materials that did not leave anything for the reading, although a defence against them needed to be prepared; numerous instances of ex parte annexes; nothing but protected witnesses; the fact that many witnesses did not testify in court but rather their statements that had been taken during the pre-trial stage under suspicious circumstances by the Prosecution were admitted into the record so that Vojislav Šešelj could not cross- examine them. 227. All of the aforementioned was dealt with in several hundred submissions by Dr Vojislav Šešelj, from which it can be clearly and unequivocally concluded that not a single condition for a fair and just trial was met. All deadlines for a fair and just trial were exceeded, resulting in permanent and lasting harmful consequences so that the trial itself was nothing more than a final confirmation that, from the very filing of the Indictment, there had never been a plan to conduct a fair and just trial within a reasonable time. 228. This was a political and vindictive trial against the man who had clearly, precisely and publicly given the diagnosis of the ICTY during his initial appearance

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before the ICTY. For Serbs, all that is needed is an indictment, constituting nothing more than a piece of paper, while the law, due process, the respect of the rights of the Accused, a fair and just trial, international standards, the presumption of innocence and everything else that the civilised world is proud of remains at the door of the ICTY because it is not valid inside. 229. On 27 November 2006, the Trial Chamber unsuccessfully attempted to commence the trial even though immediately after the announcement that the trial would begin with an unlawfully assigned counsel, on 10 November 2016 /as printed/, Vojislav Šešelj began a hunger strike that lasted 28 days, during which Vojislav Šešelj did not take any food or medicine because that was the only option remaining to him to fight for his fundamental human and procedural rights. The strike ended with the granting of all of Vojislav Šešelj’s requests and the annulment of the trial that had commenced without his presence, instigated by the Prosecution, the Registry, the Trial Chamber and the imposed counsel. 230. If the court’s obligation to ensure that conditions for a just trial are met is judged by the actions and conduct of the participants in the proceedings against Professor Vojislav Šešelj before the ICTY, and the specific abuses of the proceedings committed by the Prosecution that were identified thus far, it can be concluded that the trial could in no way be deemed to have been fair. The abuses that were committed in the past 13 years were so egregious that the proceedings could not be consolidated in any way, nor could a fair trial be conducted. This is attested to by an analysis of all the aspects of the right to a fair trial in the case against Vojislav Šešelj before the ICTY. 231. The standard is that anyone who is arrested or detained must be immediately informed of the reasons for his arrest or detention, and about his rights, including the right to an attorney. The purpose of the right to be informed as soon as possible about the charges faced by an accused is that he should be able to challenge the lawfulness of his arrest or detention and, if he is charged, to be able to begin preparing his defence. This right includes the following rights: a) to be informed immediately about the reasons for the arrest or detention, b) to be informed about his rights, c) to be informed about the right to an attorney,

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d) to be informed immediately about the charges, e) to be informed in a language that he understands. 232. Detention, as a measure to ensure the presence of the accused for the criminal proceedings, is always for a limited period of time. Detention must never be indefinite. 233. The relevant standards governing the right to be informed about the reasons for one’s detention are as follows: Article 9(2) of the International Covenant on Civil and Political Rights (hereinafter: International Covenant): “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.” Principle 10 of the Body of Principles: “Anyone who is arrested shall be informed at the time of his arrest of the reason for his arrest and shall be promptly informed of any charges against him.” Principle 11(2) of the Body of Principles: “A detained person and his counsel, if any, shall receive prompt and full communication of any order of detention, together with the reasons therefor.” 234. As already mentioned, the Prosecution’s intention, to obstruct the proceedings by continuously attempting to have counsel imposed, was clear from the very beginning. Its attitude was that “all accused have the right to self-representation, but only Professor Vojislav Šešelj must also have stand-by counsel, just in case, who will annoy him, because he insists on representing himself, and when the Prosecution deems that the accused needs to be removed from the courtroom, the entire defence will be taken over by the assigned stand-by counsel and the proceedings will be concluded expeditiously.” At the same time, Slobodan Miloševi ć, who does not have a PhD in Law and was not a university law professor, was allowed to represent himself with the assistance of his three legal advisers, and an amicus curiae was even appointed, which is completely unrelated to an accused’s right to self-representation. 235. Thus, Professor Vojislav Šešelj was informed about his rights, but he was immediately told on his second and fourth days in detention – this does not apply to you. The Prosecution’s request was upheld by the Trial Chamber on 9 May 2003, when it issued a decision on appointing a stand-by counsel. Even more extreme

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violations of the Accused’s rights were committed on two occasions in 2006, when Professor Vojislav Šešelj’s right to self-representation was removed and transferred to the imposed counsel. In the decisions of 20 October 2006 and 8 December 2006, the ICTY Appeals Chamber had to reinstate Professor Vojislav Šešelj’s right to self- representation. 236. Any arrested or detained person has the right to be informed promptly of the charges against him. There are two fundamental reasons for the requirement to provide information on the charges for the crime in question in the shortest possible time. First, arrested and detained persons are given information based on which they can challenge the lawfulness of their detention, which is the main purpose of the protection provided under Article 9 (2) of the International Covenant and the relevant provisions found in regional agreements. Second, anyone who is waiting to be tried on criminal charges, whether he is in detention or not, is given the opportunity to start preparing his defence, which is the main purpose of the guarantees under Article 14 (3) (a) of the International Covenant, Article 8 (2) (b) of the American Convention and Article 6 (3) (a) of the European Convention. 237. In the proceeding against Vojislav Šešelj these rights were effectively denied through multiple amendments of the Indictment, due to which the Accused could not know what charges he was facing. It was not until 12 June 2005 that Vojislav Šešelj was notified of the charges, that is, after 28 months spent in detention. Therefore, for 28 months Vojislav Šešelj was kept legally misinformed and was steered in the wrong direction for preparing his defence. 238. The situation was similar when it came to the right of the accused to have the indictment and the evidence against him disclosed in a language that he understands. Instead of his native Serbian, Professor Vojislav Šešelj, upon his arrival in The Hague, encountered for the first time a hybrid quasi-language referred to as B/C/S, which was unknown to him. Consequently, Vojislav Šešelj found himself in a situation where, instead of receiving all the information in Serbian, his mother tongue, which he fully understands, he had to guess what certain words meant, even though

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the purpose of this right is that an accused does not have to make any guesses or ask for additional explanations. 239. It should probably be pointed out that not a single encyclopaedia makes reference to the “B/C/S language”. Perhaps linguists should know hybrid languages such as Esperanto, but this is not a requirement for individuals, particularly not for individuals accused before an international tribunal. The B/C/S hybrid is not a language, yet the ICTY insists on using this particular quasi-language for translation, based on the premise that this is a language understood by all of the accused. 240. Detainees have the right to contact with the outside world, with their family, their attorney, a doctor, court organs and, if the detainee is a foreigner, a consular representative or relevant international organisation, as soon as possible. On the basis of experience, an international standard was established that contact with the outside world is of particular importance to protect against human rights violations such as “disappearances”, torture and inhuman treatment, and essential for ensuring a fair trial. This right implies and encompasses the following: a) the right to communicate and receive visits, b) detention without the right to communication, c) the right to contact family. 241. Detention without the right to communication with the outside world (incommunicado) contributes to torture, inhuman treatment and “disappearances”. Long-term detention without communication with the outside world can, on its own, constitute a form of brutal, inhuman or degrading treatment. Typically this constitutes torture, or a particular form of pressure on the detainee with the clear intention of persuading him to consent to something, so that this restriction might be lifted, that he would not consent to if he was free. International standards do not explicitly prohibit detention without the right to communication in all instances, however, international standards and expert bodies advocate that any restrictions on and delays concerning the right of detainees to communicate with the outside world be permitted only under exceptional circumstances, and for a brief period of time. This means that it is possible to restrict the right to communication exceptionally under certain conditions, but only for a very

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short period of time. What is a short period of time in the case of Professor Vojislav Šešelj? 242. Detainees have the right to communicate with their families and friends within reasonable limits and to have them visit. These rights are subject to restrictions and supervision only “if that is in the interest of the administration of justice and the security and good order of the institution.” Vojislav Šešelj has never interfered with the administration of justice nor endangered the security and good order of the institution, and therefore there were never any grounds on which to prevent him from communicating with the outside world. 243. The Inter-American Commission deems that the right to family visits is “a fundamental element” for the respect of the rights of detainees and the right to the protection of the family, and that the conditions or procedures for visits must not violate other rights protected under the American Convention, including the right to personal integrity, privacy and family. The Commission points out that the right to visits applies to all detainees, regardless of the nature of the offence charged or conviction. The Commission deems that provisions allowing only brief, irregular visits and the transfer of detainees to distant locations constitute arbitrary punishment. 244. The proceedings against Professor Vojislav Šešelj are certainly also in the annals because of the incredible violation of all of the international standards governing the right to trial within a reasonable time. If a detainee is not brought to trial within a reasonable time, then he has the right to be released from detention pending trial. This is an international standard found in all the relevant human rights conventions, and is guaranteed as the minimum right for detainees and accused persons. Judging from the report of the United Nations Secretary-General, the ICTY Statute reflects the maximum level of human rights guarantees. This statement is significant because it removes any possible doubts that could be raised by the wording of Articles 20 and 21 of the Statute. ICTY case law has promoted the principle that regardless of the wording of individual articles in the ICTY Statute, international standards take precedence when interpreting the provisions of the Statute. Within the framework of international standards, this right encompasses the right to a trial within a reasonable time or release from detention pending trial.

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245. Anyone detained on charges that he has committed an offence has the right to be tried within a reasonable time, or to be released from detention pending trial. There are two groups of standards that require trials to be conducted within a reasonable time, and both rest on the presumption of innocence. 246. The first group of standards relates to detainees and requires that detained persons be brought to trial within a reasonable time, or be released from detention. This right is protected by the provisions under Article 9(3) of the International Covenant, Article 7(5) of the American Convention and Article 5(3) of the European Convention. This right is based on the presumption of innocence and on the right to personal freedom, from which it follows that anyone who is detained has the right to have his case considered a priority and to have the proceedings conducted with exceptional expeditiousness. 247. The second group of standards relates to all those who are accused of a crime, whether they are detained or not, and requires that the trial for the crime be held without unnecessary delay so that the accused awaiting trial should not be exposed to an extended period of uncertainty and so that evidence will not be lost or its significance diminished, which is the main purpose of the protection envisaged under Article 14(3)(c) of the International Covenant, Article 8(1) of the American Convention and Article 6(1) of the European Convention. 248 . The relevant standards are as follows: Article 9(3) of the International Covenant: “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. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.” Principle 38 of the Body of Principles: “A person detained on a criminal charge shall be entitled to trial within a reasonable time or to release pending trial.” Article 7(5) of the American Convention:

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“Any person detained 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 be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.” Article 5(3) of the European Convention: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” Paragraph 2(C) of the Resolution of the African Commission: “Persons arrested or detained shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or be released.” 249 . Immediately upon his arrival at The Hague, Professor Vojislav Šešelj informed the ICTY that he was ready for trial. He said that he would conduct his own defence and requested that the trial commence immediately. After spending a year in detention, Vojislav Šešelj applied for provisional release until the commencement of the trial, since it was clear to everyone that the Prosecution was being passive and that in fact it did not have evidence, was not prepared and had no intention of starting the trial. Vojislav Šešelj then received the Prosecution’s answer that the trial would commence in December 2004 and based on this answer the Trial Chamber denied Vojislav Šešelj’s application. In November 2005, Vojislav Šešelj filed a request for either the trial to commence by 23 February 2006 or that he be released. Naturally, this request was also denied and Vojislav Šešelj never received the answer to his question on why his right to an expeditious trial was being violated. 250. As it is a well-known fact that his right to an expeditious trial was violated, it is not clear how it was at all possible to hold a trial. It is impossible to remedy the violation of the right to an expeditious trial, considering that the violation remains on the record, branding it without the possibility of being expunged. Therefore, if this violation stands as a gaping wound on the trial, it is a permanent scar, a mark that will call into question everything else that is done as part of the

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proceedings. This is a defect which cannot be removed. The situation would not have been significantly different if the Prosecution and the Trial Chamber had acknowledged this violation of Vojislav Šešelj’s rights, as it would still cast a shadow on everything that was done. 251. Every court should be distinguished by a high level of likelihood that the judges are faultless in applying the rules of procedure. After all, this is why parties to the proceedings turn to the court for a resolution of the dispute between them. Knowledge of the law in general, of the laws and of the rules of procedure is the presumption with regard to a court and judges. This presumption rarely fails. A specific feature of the trial of Professor Vojislav Šešelj is that he has proven this presumption does not apply to or even exist in his case before the ICTY. The proof of this is the Tribunal’s handling of his right to an expeditious trial. 252. The judges were fully aware of this and often expressed their alleged concern that the trial had not yet commenced, but this alleged concern could not also be reconciled with the proceedings. Has the trial of Professor Vojislav Šešelj fallen outside international standards and the ICTY rules? 253. The reasonable duration of the pre-trial detention period has been assessed by the Human Rights Committee and regional organs on a case-by-case basis. In their assessments, they took into account the following parameters: the gravity of the crime committed, the nature and severity of the possible punishments, and the risk that the accused might flee if released from detention. They also examined whether the representatives of the authorities exhibited “exceptional industry” in conducting the proceedings, taking into account the complexity and special characteristics of the investigation and whether constant delays were caused by the accused or the Prosecution. 254 . In cases in which the accused is in pre-trial detention, the duration of time that is considered reasonable may be shorter than the reasonable delay to the commencement of the trial of a person who is not in detention. For instance, the European Commission believes that even though the time before the trial can be acceptable under Article 6(1) of the European Convention, holding a person in detention for the same period of time before the trial may be in contravention of

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Article 5, “because the purpose is to limit the duration of detention and not to advocate a fast trial.” 255. In the case of a murder suspect in Panama who was held without bail for three and a half years before his acquittal, the Human Rights Committee stated that “in cases involving serious charges such as homicide or murder, where the accused is denied bail by the court, the accused must be tried in as expeditious a manner as possible”. The Human Rights Committee in its conclusion says that the 16-month detention of the accused for a murder carrying capital punishment in the absence of a satisfactory explanation from the state or justification based on the case file constitutes a violation of his right to be tried within a reasonable time or released from detention. 256. In a case from Uruguay, the accused was held in detention incommunicado between four and six months (the accuracy of the dates is disputable) and the trial before a military court on charges of subversive association and conspiracy against the Constitutional order commenced after five to eight months. The Human Rights Committee is of the view that Article 9(3) of the International Covenant was violated because the accused “was not brought promptly before a judge or other officer authorized to exercise judicial power; and because he was not put on trial within a reasonable time.” 257. The African Commission holds that a two-year delay of the hearing or the scheduling of a trial constitutes a violation of Article 7(1)(d) of the African Charter. In another case, the African Commission established that a seven-year detention without being taken to trial constituted a violation of the principle of “a reasonable time” prescribed by the African Charter. 258. The Inter-American Court considers it unjust for a person to be deprived of his liberty for a period that is disproportionate to the punishment for the crime with which he is charged. The Court considers that detention of three and a half years in the Suarez-Rosero case violates the right to the presumption of innocence. 259. These examples serve to establish that the concept of reasonable time is not unknown to the judges of the ICTY. It is indisputable that in the case against Vojislav Šešelj the right to an expeditious trial has been violated; it is more important to establish the real reason for the violation of this right. The answer to this question is

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offered by the court records in this case, the chronology of the Prosecution’s documents and, in particular, the time when a number of the documents on which the Prosecution relied were obtained. Looking at this confirms Dr Vojislav Šešelj’s basic argument that the Prosecution did not have any evidence and that it used detention as a means of gaining the time it needed to prepare evidence or, rather, to manufacture it and adapt it to its charges. 260. This indicates that the Prosecution did not actually raise the Indictment against Vojislav Šešelj on the basis of the evidence it had in its possession but, rather, that what was important to the Prosecution was to deprive Vojislav Šešelj of his liberty. The primary goal of the Prosecution was to remove Vojislav Šešelj from the political scene in Serbia, which is why this trial cannot go beyond the framework of politics and political persecution, so the violation of the right to an expeditious trial is a fully expected consequence of these proceedings. 261. What is unusual is that Vojislav Šešelj is the only accused to have twice filed a request asking for his trial to start, and that he is the only one still seeking an answer to the question of why his right to an expeditious trial was not respected. 262. Any violation of the right to an expeditious trial ultimately means that the authorities are not respecting the presumption of innocence. The right to a fair trial entails respect for the right of the accused from the first day in detention, not from the start of the trial. The right to a fair trial does not allow for a situation in which the judges are fully aware that none of the accused’s rights had been respected in the pre- trial phase and that, with the start of the trial, all previous violations of the rights of the accused are forgotten. It is considered that a reasonable period of pre-trial detention may depend on the complexity of the case, on the nature of the crime and on the number of accused. 263. According to the European Court, persons being held in pre-trial detention have the right to demand that the authorities conduct the proceedings with “due diligence”. These positions and international standards in the case against Vojislav Šešelj would have some justification if Vojislav Šešelj had been caught red- handed as the perpetrator of a crime, then detained and charged, and had been awaiting the beginning of the trial in detention, or rather, if the Registrar had scheduled the commencement of the trial for 23 November 2004.

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264. However, this situation in the case against Vojislav Šešelj is not even possible. He was first indicted and then detained. He has been charged for acts and conduct dating back 10-12 years before the Indictment was raised. The Prosecution had to have secured the evidence in this case: not only the evidence sufficient for the confirmation of the Indictment by ICTY judges, but all the evidence that would be presented at the trial. This is why it is prescribed that, as soon as the accused pleads not guilty, the judge shall call on the Registrar to set a date for the start of the trial. 265. This is not simply a matter of whether the ICTY organs have been efficient since 23 February 2003 or whether they should have demonstrated their efficiency even before the detention, but also of whether there is any form of sanctions for inefficiency, where the right of the accused to a fair trial is concerned. More precisely, the extent to which the inefficiency of the Prosecution, the Registry and the Trial Chambers can be tolerated is limited by the reasonable time requirement and the right of the accused to an expeditious trial, based on the right to liberty and the right to the presumption of innocence. It is not acceptable that Vojislav Šešelj should suffer the consequences of the proven inefficiency of the ICTY organs. 266. If the question is raised of what can be understood as the inefficiency of the ICTY organs, we then come to the true answers that, from the very beginning when the Indictment was raised, the trial had been planned and prepared to ensure that it would not be fair or just. To recall: as early as on 28 February 2003, the Prosecution had asked for counsel to be imposed on Professor Vojislav Šešelj and insisted that it present its material in electronic form and in a foreign language. The Prosecution insisted on this for a full four years, and it continues to do so to this day, although it is duty-bound to respect the decision of the Trial Chamber by which Vojislav Šešelj was given back the right to defend himself and the Prosecution was instructed to disclose material in the Serbian language, in written form and on paper. The Prosecution has still not disclosed over 600,000 pages of material to Vojislav Šešelj, yet it allegedly intends to commence with the trial. 267. What hides behind and beneath the Prosecution's inefficiency? What form does the Prosecution's inefficiency take and what does it represent? Vojislav Šešelj provided answers to these questions in his submissions and at public status conferences. For four years the Prosecution refused to provide translations of the

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documents. Why would Vojislav Šešelj be subjected to sanctions because of this? But he has been! This situation is presented here because it clearly shows that a flight risk could justify to a certain degree the inefficiency of the prosecution organs. 268. Judging by some statements, Vojislav Šešelj's trial was envisaged so as to start even before the Prosecution had discharged fully its obligation to disclose material, that is, so that the material would be disclosed during the trial, and we are talking about more than 600,000 pages. The purpose of disclosing Prosecution material is to allow the accused to become familiar with and to be informed of the evidence that the Prosecution intends to use during the trial. Therefore, Vojislav Šešelj, who is representing himself, has to return from the courtroom every day and learn for the first time about some aspect of the charges, so he is in the situation of finding out today about a fact or detail that he could have used in his trial 15 days earlier, when a certain Prosecution witness was testifying, but could no longer use it the following day, as a different witness would be testifying about a different location. 269. All this, of course, on condition that he could cope with all the material, and the Prosecution has announced that there would be 600,000 pages of it. It must be recalled that the Prosecution wasted four years on trying to figure out how to trample on Professor Vojislav Šešelj’s rights institutionally, and it had no intention of providing translations of documents and material because it was counting on a trial in which Professor Vojislav Šešelj would have an imposed counsel with him in the courtroom who would only be interested in the money and not in the case, because this counsel, a real superman, would be professionally skilled enough to get through all the material in electronic form. He would read 100,000 pages a day. 270. In this way Judge Orie’s Trial Chamber and the Prosecution attempted to begin hearings in November 2006. The Prosecution would have been ready for the trial only if Vojislav Šešelj's rights had been trampled and if the rights guaranteed to every accused in the world had been denied to him. Therefore, this is not a question of the Prosecution, Registry and Trial Chamber being inefficient; instead, this is a question of a system that is supposed to provide the visual appearance of a trial in which the rules and norms of international law are allegedly observed, while, in fact, Vojislav Šešelj would have to be convicted regardless of the evidence.

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271. Because the plan from the start was to conduct a trial that would not be fair and just, this request should be granted. In addition, is it possible to conduct a fair and just trial if the rights of the accused Vojislav Šešelj have been violated systematically for five years? In terms of fair and just proceedings, Vojislav Šešelj's violated rights cannot be consolidated, because the question will always remain of what the Prosecution managed to achieve, other than to grossly violate Vojislav Šešelj's rights. 272. In the case against Vojislav Šešelj, every ICTY Trial Chamber has been involved one after the other, each one failing to respect his right to an expeditious trial. So how could these same judges now adjudicate and ensure a fair and just trial? 273. Vojislav Šešelj's trial is also not legitimate because his right to have adequate time and facilities for the preparation of his defence was not respected. 274. His right to adequate time and conditions for the preparation of his defence is an important aspect of the basic principle of "equality of arms". The defence and the prosecutor must be treated in a way that ensures that both parties have the same facilities to prepare and present their case in the course of the trial. The right to adequate time and facilities for the preparation of the defence applies to both the accused and his counsel, if he has one, throughout all the trial stages, including the time before the trial and during appellate proceedings. This right requires that the accused, in particular, be allowed confidential communication with his counsel, which is especially important for persons in detention. 275. The relevant standards are as follows: Article 11(1) of the Universal Declaration: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” Article 14(3)(b) of the International Covenant: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees:“(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.”

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276. Article 21(4)(b) of the ICTY Statute stipulates that the accused is entitled to these minimum guarantees: “to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.” Adequate time for the preparation of defence only makes sense if the accused is fully informed of all the aspects of the charges and evidence that the Prosecution intends to present at trial. If the accused does not have this most basic information, then the question can be rightly raised of how he should prepare his defence and from what he is defending himself. Vojislav Šešelj faced this problem from the very first day of his detention. 277. Adequate time must also be established in terms of when the accused was informed and when he received the material that the Prosecution intends to present at trial. In the case against Professor Vojislav Šešelj, this would mean taking into account when the Prosecution material was disclosed. The purpose of disclosing the Prosecution material to the accused is to ensure that the accused is fully informed of the charges and of everything that the Prosecution intends to present at the trial. 278. It is well known that the Prosecution did not discharge its obligation to disclose. For several years the Prosecution did not disclose almost anything or just the odd item, and when it decided to move to hearings, intending this to be a mere makeshift trial, it came up with the idea of using the imposition of counsel and to disclose through him in electronic form and in a foreign language the most important material that it intended to present at the trial. This was thwarted twice with the help of the Appeals Chamber. 279. In addition to refusing to register the members of Vojislav Šešelj's expert team who were assisting him in preparing his defence, the Registrar also prohibited visits to Šešelj by them. 280. Professor Vojislav Šešelj first met with the members of the team assisting in the preparation of his defence in December 2006, when the Registry acknowledged Aleksandar Vu čić, Zoran Krasi ć and Slavko Jerkovi ć as his official legal advisers, and Marina Raguš as the case manager. In practice, Vojislav Šešelj could not begin his defence preparations until December 2006, when the Registry gave him permission to hand over confidential Prosecution materials to his legal associates. Therefore, for a full four years Vojislav Šešelj was

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not even able to prepare his defence because he was not permitted to communicate with or to be visited by persons who were assisting him in the preparation of his defence. The attitude of the Prosecution, the Registry and the Trial Chamber to his right to adequate time for the preparation of his defence was simply “you are representing yourself and you can do that alone in detention”. The Appeals Chambers twice restored Vojislav Šešelj's right to represent himself and on two occasions they removed standby counsel. Therefore, Vojislav Šešelj was right from the start when he would neither hear of nor see any standby counsel. 281. It was not until July 2007 that Vojislav Šešelj was assigned a second connecting cell for his use as an office and a space to keep trial material. In December 2006, he was granted the right to privileged telephone communication with his legal advisers. 282. Any person charged with a crime, whether in pre-trial detention or not, has the right to be informed immediately of the charges against him. In order to conform with the right to a fair trial, information about charges, which is provided before the trial, must be detailed and must provide the “nature and cause of the charges” against him. 283. The European Commission in its interpretation of Article 6(3)(a) of the European Convention clarified that a person charged with a crime is guaranteed the right “to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusations against him.” The European Commission determined that the “nature of charges” relates to the legal character and classification of facts, while the “cause of charges” relates to facts that form the basis of the Indictment. The information provided must contain elements that would enable the accused to prepare his defence, but does not need to contain evidence on which the Indictment is based. 284. The relevant standards are as follows: - Article 14(3) of the International Covenant: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”;

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- Article 8(2)(b) of the American Convention: “Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: “b. prior notification in detail to the accused of the charges against him”; - Article 6(3)(a) of the European Convention: “Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”. These standards are also included in Article 21(4)(a) of the ICTY Statute: “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”. Article 14(3)(a)of the International Covenant and Article 6(3)(a) of the European Convention stipulate that information on charges must be provided “promptly”. Article 8(2)(b) of the American Convention requires “prior notification”. 285. In interpreting Article 14(3)(a) of the International Covenant, the Human Rights Committee has explained that the information should be given “as soon as the charge is first made by the competent authority. In the opinion of the Committee this right must arise when in the course of an investigation a court or an authority of the prosecution decides to take procedural steps against a person suspected of a crime or publicly names him as such.” Article 20(2) of the ICTY Statute stipulates that the accused shall be immediately informed of the charges against him. Therefore, the information is provided through the Indictment and the material presented with the Indictment or, if interpreted more broadly, by disclosing the material based on which the judge confirmed the Indictment. The term “immediately” could also mean: no more than 30 days after the Indictment is confirmed. This obligation was not discharged by the Prosecution immediately and, in some parts, it has not been discharged to this day. The information must be provided in a language which the accused understands. The charges are not simply contained in the Prosecution’s indicting document, regardless of its name or format, but also in the accompanying material on which the Prosecution

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relies to substantiate its charges. This means that the entire Prosecution material must fulfil the criteria required in terms of language which the accused understands. 286. In Vojislav Šešelj’s case, the language he understands is Serbian. Throughout the 12 years in detention, he was frequently subjected to continuous aggressive attempts by the Prosecution to disclose to the accused important Prosecution material related to the nature and cause of the charges in the English language. Of course, Dr Vojislav Šešelj refused to accept Prosecution material in the English language, and if the odd page in English did slip through in the large quantity of material sent to him, he would simply return it to the Prosecution. 287. The culmination of the lack of respect for Vojislav Šešelj’s guaranteed right was undoubtedly when the Prosecution requested that the Trial Chamber issue an order to allow Prosecution material to be disclosed to Vojislav Šešelj in the English language and in electronic form because Vojislav Šešelj allegedly knows English, which is sufficient to implement the provision on a language which the accused understands, and that Vojislav Šešelj should be offered training to be able to use a laptop. 288. Vojislav Šešelj had to go on hunger strike in order to keep his inviolable right to his own language. Although the obstacle to enjoying this right has now been removed, it must be noted that some permanent effects remain: one of them is that the accused did not receive timely information in the language which he understands, along with the fact that in the fifth year of his detention more than 600,000 pages of Prosecution material that has not been disclosed has piled up, and that the disclosure has been made electronically to assigned counsel Hooper without Vojislav Šešelj even knowing about it. 289. The right to adequate facilities for the preparation of defence includes the right of the accused to the professional opinion of independent experts while preparing and presenting his defence. Vojislav Šešelj was not able to exercise this right during the 12 years in detention. He required the professional opinion of independent experts about the Prosecution’s expert witness reports, but could not engage anyone as he did not have the means needed to pay for the experts.

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Vojislav Šešelj does not have any personal means of financing his defence because even the funds that he did have dating from before 1991 were frozen in an American bank in the USA, and these funds could have been released solely to pay for some American attorney who would be engaged to defend Vojislav Šešelj. As Vojislav Šešelj is representing himself, these funds remain frozen. 290. Everyone has the right to equality before the law. The right to equality before the law means that laws must not discriminate and judges and officials must not act in a discriminatory way when applying the law. The right to equal protection of the law prohibits discrimination in law or in practice in any area that is regulated and protected by representatives of the authorities. However, this does not mean that all differences in treatment are discriminatory, but only those that are not founded on reasonable and objective criteria. 291. As regards this standard, which can be found in all international texts and is guaranteed in all national legislation, the ICTY is an exception. The best evidence for this is the case against Vojislav Šešelj. The most significant and most serious discrimination by the ICTY was directed against Vojislav Šešelj. For four years he was not allowed to represent himself. He is practically the only accused in detention in the United Nation’s Detention Unit who was: - banned for four years from communicating with members of the expert team that was assisting him in the preparation of his defence; - not allowed visits from friends and in particular if they were members of the Serbian Radical Party (an example of this is that a visit from his long-term friend Igor Be čić on 15 June 2006 was initially approved and then suddenly prohibited because he was a member of the Serbian Radical Party), which makes the ICTY the only court in the world that establishes conditions – ones that apply only to Professor Vojislav Šešelj – that must be met for someone to be considered a friend; - banned for nine months from having any communication with persons outside the detention unit, and also for a period of several months because elections in Serbia had taken place, and since the Serbian Radical Party had done well, Professor Vojislav Šešelj could have influenced the forming of the government in Serbia from his detention (in fact, this is the most obvious example of his right to a presumption of innocence not being respected);

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- not allowed to receive visits from his wife who came on a regular visit, unless she signed a special statement that she would not pass on information about Professor Vojislav Šešelj’s health to anyone (no other visitor to the detention unit ever had to sign this type of statement, and this special statement was only demanded of Jadranka Šešelj); - not allowed a visit from his wife Jadranka Šešelj for 30 days because, during her previous visit to Vojislav Šešelj, he had allegedly revealed the names of eight protected Prosecution witnesses, and it later turned out that even Judge Orie admitted that this reason was impossible because the names of the protected witnesses had not even been disclosed to Professor Vojislav Šešelj; - the only one who was ordered by the Trial Chamber to limit his submissions to no more than 800 words and, if this limit is exceeded, the submissions and requests would be returned and not filed on record; and, if he wanted to exceed this 800-word limit, he first had to seek and receive permission from the Trial Chamber, which was presided over by Judge Orie (this type of limit did not apply to the Prosecution in this case, and there is no record of any case so far in which the Trial Chamber imposed additional limits on the length of submissions); - the only person who was ordered to go to school to learn to use a computer if he wanted to represent himself, and to whom documents in the English language were forcibly delivered; - the only one not to have had the Prosecution’s documents and material of more than 600,000 pages disclosed to him; - the only accused whose case file contains a considerable amount of ex parte Prosecution material, whose content he could only count on discovering when the trial started, and this would have been a few days before the testimony of some Prosecution witness through whom some documents would have been tendered; and the way the Prosecution planned it, a large quantity of ex parte documents would be tendered through the statements of some of the witnesses pursuant to Rule 92 bis and 92 quarter , and by the time Professor Vojislav Šešelj was able to discover the content of these documents, they would all be useless to him because he would not have had the opportunity either to cross-examine or to argue.

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292. One of the most striking examples of the violation of Vojislav Šešelj’s rights was the June 2006 decision of the Trial Chamber, presided over by Judge Orie, which stipulated, solely for Vojislav Šešelj, the permitted length of his motions or submissions. Professor Vojislav Šešelj is the only one of the accused representing himself from detention who has had a limit of no more than 800 words imposed on his motions and submissions. This limit was not imposed on the Prosecution in this case, and there is no other case before the ICTY where the defence has been ordered to limit their motions and submissions to no more than 800 words. 293. First, it must be noted that any limit imposed on the length of submissions is a violation of the rights of all the parties in the proceedings and, second, there is no record of any case so far where the court introduced a limit on the number of words used by the accused for his defence. Vojislav Šešelj has suffered discrimination, both in relation to the Prosecution as an equal party, and in relation to all the other accused at the ICTY, with whom he should undoubtedly be equal in rights. 294. All these indisputable facts presented here demonstrate, to put it mildly, the ICTY’s, and in particular the Prosecution’s, unfair attitude towards Vojislav Šešelj, and they have been presented here in order to remind the Appeals Chamber that the only possible and the only legally right decision in the trial against Vojislav Šešelj is an acquittal on all counts of the Indictment, as has already been ruled by the majority in the Trial Chamber. (By expert team member Nemanja Šarovi ć)

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THIRD SUPPLEMENTARY RESPONSE TO THE PROSECUTOR’S APPEAL

295. As the Respondent, Professor Vojislav Šešelj is hereby filing a substantiated submission in response to the Appeal Brief of the Office of the Prosecutor (hereinafter: Prosecution) of the International Criminal Tribunal for the Former Yugoslavia, as set out in the provisions of Rule 112 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia (hereinafter: ICTY). 296. After the Notice of Appeal of 2 May 2016 in Case No. IT-03-67-T, The Prosecutor v. Vojislav Šešelj of 31 March 2016 (hereinafter: Judgement of acquittal), on 18 July 2016 the Prosecution filed an Appeal Brief. 297. The Prosecution’s Notice of Appeal is rife with deficiencies in procedure, form and substance. The general impression of the appeal is that it is arbitrary, abstract and without a single argument that could lead the Appeals Chamber to amend in any way the Judgement of acquittal delivered to Professor Vojislav Šešelj by the Trial Chamber on 31 March 2016. 298. Rule 108 of the ICTY Rules of Procedure and Evidence stipulates that the appellant must identify in his appeal the order, decision or ruling challenged and indicate the substance of the alleged errors. The Prosecution Appeal Brief did not contain any of the prescribed elements. 299. The Prosecution Appeal clearly shows the personal nature of the Prosecution’s attitude towards Dr Šešelj. After all, this was the case throughout the trial. Despite being completely unprepared and without a single valid piece of evidence, the Prosecution embarked on the drafting of the Indictment against Professor Vojislav Šešelj. They accepted to play a role in the political trial of the leader of an important opposition party in Serbia, against a professor of law, who demonstrated during the trial his superiority, his flawless knowledge of international criminal law and his readiness to die for justice and the truth. 300. International justice was unattainable to Dr Vojislav Šešelj for almost 12 years; especially during the first five years he spent in detention while the trial against

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him had practically not even started. Do we need to be reminded that Vojislav Šešelj was forced to go on a 28-day hunger strike in order to win back his basic human and procedural rights, rights that he is guaranteed under all known and recognised international documents? 301. In his concurring opinion, attached to the Judgement, Judge Jean-Claude Antonetti recalls that the trial against Šešelj lasted for more than 13 years, and he wonders what were the reasons for this. The Prosecution is not interested in this, even though it bears the most responsibility for this situation. 302. The Prosecution attempted to prove its charges by using false witnesses. This unlawful way of proving charges was completely exposed and condemned by Professor Šešelj. This is the root of the Prosecution’s frustration, primarily for Serge Brammertz who had an irresistible desire to see Šešelj convicted. Evidence was not relevant to the Prosecution even in the trial proceedings, let alone now, in the appeal proceedings. 303. In the proceedings against Dr Vojislav Šešelj, a total of 90 witnesses were heard, and Vojislav Šešelj proved through cross-examination that the majority of these witnesses were false and had been orchestrated by the Prosecution. This is why some of them came over to the Defence side. 304. In its completely arbitrary and generalised Appeal Brief, the Prosecution claims that “no reasonable trier of fact could have acquitted Šešelj …” and it lacks even a single argument to prove its assertion. It follows from this that no reasonable prosecutor would file an appeal if he did not have a single legal argument to support it. 305. The Prosecution considers it important that apart from the accused, the Prosecution and Appeals Chamber, the victims, witnesses and public must also be assured that the case has been properly adjudicated by the Trial Chamber. Everyone, apart from the Prosecution, is already convinced of this. 306. The public, especially legal experts, did not have a single objection to the Judgement of acquittal. On the contrary; the judgement was as expected and the only one that was legally possible. Any objections from legal experts referred to the unacceptable duration of the proceedings and the complete lack of respect for the

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principle of conducting a trial within a reasonable length of time. It is interesting that the Prosecution failed to note this in its Appeal Brief. 307. The Prosecution needed to substantiate the position that the victims must also be assured that the Trial Chamber’s decision was correct with legally valid arguments and to cite at least one victim-witness who had blamed Vojislav Šešelj in his testimony for his personal misfortune. There were no such examples in the courtroom. Not a single victim-witness had accused under cross-examination Vojislav Šešelj, who had demonstrated in the course of the examinations understanding and a humane approach in order to avoid hurting their feelings. 308. During cross-examination, the Prosecution insisted on presenting statements that had allegedly been given by these witnesses to investigators of The Hague Tribunal, and it turned out that these statements, written in advance, had only been given to the witnesses to sign. One witness even received a written statement at his home address with a request from the Prosecution to sign it and return it to the Office of the Prosecutor. 309. The Trial Chamber rightly concluded that Vojislav Šešelj had simply intended to contribute to the war effort and protect the Serbs outside Serbia. What else could he have done? He did not have any official position in the government or in the military and police. During the period covered by the Indictment, he was only the leader of the patriotic Serbian Radical Party, a politician of the opposition, who wanted to help his compatriots and who was, at the time, the most persecuted politician by Slobodan Miloševi ć’s regime. 310. In its Appeal Brief, the Prosecution states that the “Majority”, which is what it calls the Trial Chamber, does not address the evidence in the record “showing that Šešelj’s goals and ideology were explicitly predicated on ethnic cleansing and the forced expulsion of non-Serbs from the areas he claimed”. If this is correct, and the Trial Chamber disregarded it, then the Prosecution should have cited in the appeal proceedings examples of such conduct by Šešelj. There is no mention of this in the Appeal Brief, because such evidence does not exist. It seems that only Serge Brammertz can see it. 311. The Prosecution maintains that Šešelj’s political aspirations were in fact criminal and is even amazed that the Trial Chamber did not deliver such a finding.

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Thus, it considers that the judges are not reasonable triers of fact, because it seems that only those who share the Prosecution’s opinion are reasonable, even if it there is no reason to it whatsoever, as in this instance. 312. The Prosecution clearly wants to give the impression to the Appeals Chamber that only the Prosecution’s reasoning is reasonable and “that the only reasonable conclusion to be drawn from the evidence that Šešelj and the other alleged JCE members established, controlled and deployed the Serb forces that executed a protracted ethnic cleansing campaign against non-Serbs is the existence of a common criminal purpose.” Of course, this is also only an arbitrary opinion of the Prosecution without a single concrete piece of evidence to prove its claims. It also maintains that the Majority failed to address key Prosecution arguments. Which ones? The Prosecution does not offer any arguments to the Appeals Chamber because the Trial Chamber allegedly avoided them. 313. The Prosecution has the legitimate right to file its Appeal Brief, but it must be a reasoned submission, legally substantiated by facts. This is not the case here. Instead of legal arguments, the Prosecution maintains that the Majority is not reasonable and that Vojislav Šešelj’s acquittal represents a miscarriage of justice. Instead of arguments, the Prosecution resorts to insulting the judges, who unequivocally established that Šešelj was not guilty on any count of the Indictment, which had already been determined by the international legal profession a long time ago. 314. In Vojislav Šešelj’s case, justice has been tardy. The greatest responsibility for the failure to try Vojislav Šešelj in a reasonable time must be borne by the Prosecution. The Prosecution amended the Indictment several times, the Prosecution sought an extension of time to present its evidence, the Prosecution attempted to impose counsel on Dr Šešelj and to deny him his right to represent himself, just like it also denied him timely disclosure of evidentiary material. 315. The Prosecution claims that the Trial Chamber’s judgement is inadequate and that there is a risk of undermining the credibility of the ICTY if the Appeals Chamber allows this judgement to stand. The Prosecution regards anything that is not to its liking as inadequate and deems that it risks undermining the credibility of the ICTY. The Prosecution should be aware of the fact that it was the one that contributed

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the most to the undermining of the ICTY’s credibility, and that this is precisely what Vojislav Šešelj proved during his 12-year detention. 316. The Prosecution’s position that the judgement must contain a “judicial decision” made in accord with the evidence and arguments is also arbitrary and incomprehensible. The Prosecution clearly does not accept the Trial Chamber’s freedom to evaluate evidence or the arguments the Trial Chamber used when delivering its Judgement of acquittal. This would be understandable if the Prosecution had cited at least some arguments to support its claim, but there are none. In its entire Appeal Brief, the Prosecution could not help making this personal and could not hide its negative approach to Vojislav Šešelj. The only thing that the Prosecution would consider as valid would be if Šešelj was sentenced to a number of years in prison, even without any evidence or arguments. As far as the Prosecution is concerned, he could have remained in prison for an indefinite amount of time. It was never interested in the length of the proceedings, nor were its members, who are all lawyers, concerned by it. 317. This is why the Prosecution insisted on Vojislav Šešelj being brought back to The Hague Tribunal, and Serge Brammertz gave press statements that seemed more political than ones that would be given by an ICTY representative. Brammertz is also perturbed by Šešelj’s political activity, his charisma and popularity among the people. Brammertz cannot get over the fact that when he returned to Serbia, Šešelj was not kept under house arrest, isolated from real life in his own country. 318. The Prosecution did not succeed in its infernal plan, but it clearly could not come to terms with this. As soon as he returned from The Hague Tribunal, Vojislav Šešelj set to work. As president of the Serbian Radical Party, he went on tour across Serbia, he appeared in local media, held public gatherings and forums. Wherever he appeared, he was greeted by thousands of people who consider him a hero and a winner. And Brammertz’s vanity reared its head again. 319. Since he was not successful in bringing Šešelj back to The Hague Tribunal, Brammertz homed in on his associates. For reasons only known to him, he asked Serbia to extradite to the Tribunal officials of the Serbian Radical Party, Vjerica Radeta, Petar Joji ć and Jovo Ostoji ć, for an alleged contempt of court. The motion against the three members of the Radical Party did not present a single argument in

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support of the charges, which nobody can understand. It is also not clear or comprehensible with which witnesses Radeta, Joji ć and Ostoji ć allegedly interfered. It is interesting to note that the charges against Šešelj’s associates are not related to the main trial but to the case of contempt. 320. Brammertz attempts to attribute to Šešelj’s associates the methods used by the Prosecution investigators while searching for witnesses who would be prepared to give false testimony against Dr Šešelj. The investigators of The Hague Tribunal roamed Serbia gathering evidence, burst into people’s homes, into restaurants frequented by these people and demanded that they sign statements accusing Vojislav Šešelj of having committed alleged war crimes. All these people refused to do so out of hand, but the investigators were persistent. They blackmailed these people, threatened to raise indictments against them, pretending to have witnesses who would confirm their involvement in war crimes. They promised them a change of identity and resettlement in a third country, they were offered money. 321. Almost all these potential Prosecution witnesses gave statements about how and in what way they were coerced to accuse Šešelj. One of the persons who was subjected to torture that is unacceptable in civilised society was also Jovo Ostoji ć, and many submitted their statements to Vjerica Radeta and Petar Joji ć, who were members of the team assisting Vojislav Šešelj in the preparation of his defence. This is perhaps why they were selected as the subject of this unfounded allegation by the Prosecution. 322. When Vjerica Radeta, Petar Joji ć and Jovo Ostoji ć made public their position that they would not voluntarily go to The Hague because they had not violated in any way the rules of conduct towards potential witnesses and in particular since Serbia does not have a constitutional basis for extraditing its citizens to The Hague Tribunal for contempt of court, requests from Serge Brammertz for their extradition became more frequent. Even now, after the High Court in Belgrade made a final ruling that there were no grounds for extradition, Brammertz has not given up. He is now threatening the Serbian authorities, issuing warrants for the arrest of Šešelj’s associates and demanding that Serbia changes its law in order to act on the whim of The Hague Prosecutor. As a matter of fact, France rightly refused to extradite

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its citizen Florence Hartmann for contempt of court, and Serbia should not be treated differently. 323. Through his behaviour Brammertz clearly demonstrates his hatred for Vojislav Šešelj and he will use any means to harm him. It is obvious that by accusing Šešelj’s associates he intends to cast a shadow on the Trial Chamber Judgement, since he does not have a single legally valid reason for the Appeal Brief. 324. The entire proceedings against Professor Vojislav Šešelj were public and the public, especially the legal profession, was fascinated by everything that Šešelj showed in the courtroom of The Hague Tribunal. It was equally horrified by the unjustified duration of the proceedings. It is important to emphasise that Šešelj in no way contributed to the inappropriate length of the proceedings. He was never absent from the courtroom, even when he was hampered by serious illness. Šešelj endured heroically and, when compared to the Prosecution, displayed superiority during the detention which started on 24 February 2003 and ended on 12 November 2014, without any request from him, by a decision of the Trial Chamber. He was freed to await the Judgement of 31 March 2016. 325. The degree of interest, first and foremost in Serbia, is best illustrated by the fact that in only a few days the activists of the Serbian Radical Party gathered around one million two hundred thousand signatures from citizens demanding that the state television broadcast his trial from The Hague Tribunal. The trial was broadcast late at night both on terrestrial and on satellite channels, which made it available to the public worldwide. People are still talking about how many sleepless nights they spent watching the trial and admiring Šešelj’s brilliant mind and fantastic knowledge of law. Hundreds of thousands of members and supporters of the Serbian Radical Party wore badges with Šešelj’s image for many years, and young people used Šešelj’s responses in court instead of a ringtone on their mobiles. He has simply been and remained a Serbian hero. 326. The Committee for the Defence of Vojislav Šešelj organised and held dozens of scholarly gatherings at which eminent experts on international law from all over the world spoke about the trial against Dr Vojislav Šešelj. Everything that relates to this historic trial has been published in 150 volumes of documents.

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327. With regard to the Prosecution Appeal Brief, its arbitrary evaluations and alleged arguments must be considered first and foremost in respect of all the assertions in the paragraphs above. 328. The Prosecution claims that the “Majority” did not carry out any analysis of the record which could lead to the conclusion that the Prosecution forgot to tender the relevant evidence. These are simply the Prosecution’s insinuations. The Trial Chamber naturally analysed and assessed all the evidence, including their relevance. The Trial Chamber decided by a majority of votes, and it is inappropriate for the Prosecution to divide the Trial Chamber and to call the Judges who voted against the Prosecution’s expectations the “Majority” and not the Trial Chamber, which is what they are. 329. In its objection that there was no assessment of the wealth of evidence on the alleged crimes of the respondent, the Prosecution in fact reproaches the Trial Chamber for not analysing the critical issues of the credibility of witnesses who recanted their statements, and that these issues were left unaddressed. It clearly means nothing to the Prosecution that the witnesses changed their statements because they did not want to be the Prosecution’s false witnesses and that they had made public in their changed statements the conditions and the pressure under which they had given their previous statements. If the Trial Chamber had been careless and unprofessional and accepted the initial witness statements, the Prosecution would not have brought into question its credibility. This position speaks clearly about the credibility of the Prosecution and its hostile intentions towards Dr Vojislav Šešelj. 330. As a ground for appeal the Prosecution also states that the Trial Chamber did not take into account the majority of Šešelj’s public statements in which he promoted the idea of Greater Serbia. The Trial Chamber rightly found that by advocating the idea of Greater Serbia, Vojislav Šešelj did not intend to commit any crime. Šešelj explained at trial the idea of Greater Serbia from both the historical and political aspects, and this is the only correct explanation. 331. The Prosecution criticises the Trial Chamber for relying extensively on Dr Vojislav Šešelj’s evidence as a witness in Miloševi ć and for this being the crucial component in the Trial Chamber’s analysis of the JCE. The Trial Chamber reached the correct finding because Šešelj is the only politician in recent Serbian history who

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promoted the idea of Greater Serbia and he revived this idea. Miloševi ć always found the idea of Greater Serbia alien and he supported Yugoslavia. 332. In its Appeal Brief, the Prosecution cites the opinion of Judge Lattanzi that there had been “a climate of intimidation, blackmail, threats and fear to which the Prosecution witnesses have been subjected” and that this is why they recanted their inculpatory evidence against Šešelj when testifying before the Trial Chamber. The Prosecution criticizes the Trial Chamber for giving preference to viva voce testimony in these cases. This type of objection would not be presented by any serious attorney, because testimony in the courtroom is the only correct form. After all, Šešelj perfectly exposed all the false witnesses of the Prosecution and proved to the Trial Chamber under what circumstances they had all given their statements in support of his alleged guilt. 333. It is interesting to note that the Prosecution has not substantiated any of its appeal grounds with any legally valid arguments. Even though it had a duty to do so, the Prosecution did not mention a single argument in its Appeal Brief to explain why any of the alleged errors in law may invalidate the rendered Judgement. 334. There is no truth in the Prosecution’s claims that Šešelj tried to obstruct the proceedings and that he did this by disclosing the identity of protected witnesses. This is simply not true. All of the witnesses who had been protected voluntarily disclosed their identity. They organised conferences for the media, gave interviews, certified statements at the relevant courts in Serbia under their full names and tried to inform the public of this in any way possible. 335. The Prosecution admits that at the heart of the Prosecution’s case lay the fact that Serbian forces, including Šešelj’s men, participated in mass crimes, and is concerned about the fact that this evidence was not addressed in the Judgement. This is completely untrue. The Prosecution is trying to put forward the argument that anything that is not in its interest actually has not been addressed. This is inconsequential and insulting to the Trial Chamber. 336. All the crimes covered by the Indictment were analysed in detail in the courtroom. Witnesses and expert witnesses were examined about all the circumstances. The fact that the valid evidence did not correspond to the Prosecution’s case demonstrates the error of its imposed argument. The Prosecution

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maintains that the Serbian authorities had taken discriminatory measures against non- Serbs, creating an atmosphere of fear, and forced many other non-Serbs to leave. Even if all this were true, how is Vojislav Šešelj responsible for this? Even the Prosecution says that this was allegedly done by the Serbian authorities. Vojislav Šešelj and the Serbian Radical Party were not the authorities in the period covered by the Indictment against Vojislav Šešelj. 337. The Prosecution maintains that the Trial Chamber should have weighed the arguments about whether the crimes with which Vojislav Šešelj was charged in the Indictment were committed pursuant to the execution of a common criminal purpose. According to the Prosecution, this is the indispensable context for assessing the meaning and impact of Šešelj’s violent and discriminatory propaganda. The Prosecution is attempting to be both prosecutor and judge. It cannot accept the essential position that in the period covered by the Indictment, Vojislav Šešelj was only an opposition politician and that, together with his party, he wanted to help the Serbs outside Serbia. Propaganda, as even the Prosecution discusses, cannot be criminal. 338. The Trial Chamber acted correctly in assessing the historical and political context of the conflict in the former Yugoslavia, and the Prosecution is bothered by the fact that this was discussed in the Judgement of acquittal. Presumably, the Prosecution would have been satisfied if it had dictated the wording of the Judgement, because it clearly believes that it is the only one that does not err and whose positions are correct. 339. The Prosecution also wrongly refers to the position of the Pre-Trial Chamber that allowed the Prosecution to lead evidence of crimes in municipalities that the Prosecution was ordered to drop from the Indictment to prove, inter alia , the purpose and method of the JCE and the persecutory campaign in Croatia and Bosnia and Herzegovina. The fact that the presentation of some alleged evidence is allowed does not mean that the Trial Chamber must give credence to this evidence. Having made its assessment, the Chamber rejected this evidence, and it had a right to do so. The Prosecution constantly refuses to allow for the possibility that the Trial Chamber is the only competent authority to assess evidence.

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340. The Trial Chamber has a duty to assess the credibility of every piece of evidence; it is therefore incredible that the Prosecution almost angrily mentions that the Trial Chamber did not take into account the evidence on the pattern of the crimes, because the Prosecution had presented it precisely for that purpose. The Prosecution does not understand that the Trial Chamber does not have to take into account everything that is presented to it by either party in the courtroom. The role of the Chamber consists precisely in assessing and not simply accepting a priori. The fact that the Prosecution sees a similarity in some conduct as the existence of a pattern does not bind the Trial Chamber in any way. 341. The Prosecution criticises the Trial Chamber for not presenting in its Judgement a detailed analysis of the report of the European Community Monitoring Mission to the Balkans and the Helsinki Watch report or, rather, the fact that these reports were not regarded as evidentiary material. The Prosecution’s position is scandalous. What would trials and judgements look like if any informal reports from various non-governmental organisations were treated seriously in evidentiary proceedings? The Prosecution undoubtedly knows this. Its main guide in Serbia, who secured witnesses and their false testimonies, was Nataša Kandi ć, the then president of the Humanitarian Law Centre. Because of her openly treacherous actions, Nataša Kandi ć is the most hated woman in Serbia. 342. The Prosecution also discusses the general pattern of mistreatment which, it claims, was replicated in Zvornik, Greater Sarajevo, Mostar and Nevesinje. Its logic amounts to: that is what we have established and that is how it is. And it continues to object because the Trial Chamber disregarded – as it calls it – this clearly relevant evidence. It considers that this constitutes an error of law that invalidates the entire Judgement because the Trial Chamber did not use the evidence that the Prosecution deemed relevant to crimes against humanity, the existence of a criminal purpose and Šešelj’s intent. 343. The Trial Chamber correctly concluded that the volunteers of the Serbian Radical Party were part of the JNA, that Šešelj did not have any command responsibility and that none the volunteers of the Serbian Radical Party participated in the commission of war crimes. The Trial Chamber reached this conclusion on the basis of relevant evidence, which is not the case with the Prosecution evidence.

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344. The Prosecution thinks that the Trial Chamber should have dealt with the substance of Šešelj’s ideology and goals. As if there were something mysterious and secret in this! Vojislav Šešelj spoke before the Trial Chamber about his ideology, about the idea of Greater Serbia from the time of Count Đor đe Brankovi ć until its revival through his own actions and acts. Šešelj said in the courtroom in The Hague that he was proud that his ideology had become immortal. There is nothing criminal in this ideology and there never has been. The Trial Chamber understood perfectly the substance of this ideology. 345. It is interesting to note that in the Appeal Brief, the Prosecution cites Zoran Đin đić. It calls him a moderate politician who warned of the danger linked to “the verbal and visual militarisation” by Vojislav Šešelj and the Serbian Radical Party. This, as the Prosecution puts it, “moderate politician” is known among the Serbian people as a traitor who invited the Western powers to bomb Serbia in order to turn the people against Slobodan Miloševi ć so that he could come to power. 346. This in fact happened in 2000, after the revolution in Belgrade, which was given serious financial and logistics support by the Western powers. As soon as he took power, Đin đić made connections with criminal groups and in 2003 he was killed in a mafia showdown. 347. Vojislav Šešelj was Zoran Đin đić’s most severe critic. He revealed to the public his connection to the mafia, to privatisation through theft, and all the criminal activities that marked Đin đić’s rule. This is precisely why Đin đić asked the then ICTY Prosecutor, Carla Del Ponte, to take Šešelj away and never return him to Serbia. Carla Del Ponte testified to this in her book The Hunt , whose publication in Serbian was almost thwarted by the regime of Boris Tadi ć, the person who continued Đin đić’s criminal and treacherous policies. The question must be asked: why would the Prosecution deem relevant the opinion of such a man? 348. The Prosecution is also not satisfied with the way in which the Trial Chamber treated the evidence by expert Yves Tomi ć, which the Prosecution considered relevant. The Prosecution was surprised by the fact that the Trial Chamber “completely disregard(s)” central aspects of Tomi ć’s testimony on which the Prosecution relied. If the Chamber accepted everything on which the Prosecution relied, then the proceedings would make no sense at all. Throughout its entire Appeal

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Brief, the Prosecution has forgotten that it is only one party in the proceedings and that any of its evidence and allegations must be verified thoroughly and, of course, that the other party in the proceedings must be given the opportunity to refute the evidence. The public well recalls how Yves Tomi ć fared when cross-examined in the courtroom. As they say in Serbia: like walking barefoot over thorns. 349. The Chamber was correct to consider the Crisis Staff of the Serbian Radical Party, or rather the Serbian Chetnik Movement, from a primarily humanitarian aspect. It is true that the War Staff of the Serbian Radical Party, or rather the Serbian Chetnik Movement, had recruited volunteers for the JNA. The War Staff neither armed them nor sent them on its own initiative to particular war areas, as the Prosecution has attempted to insinuate in its allegations. 350. The Prosecution also has a problem in that, according to it, the Trial Chamber did not address the statements which Šešelj made “freely” in interviews, speeches, parliamentary debates and in his published work. Is the Prosecution’s problem that Šešelj made statements freely? Are they in favour of banning freedom of speech? It should be kept in mind that throughout the trial the Prosecution tried to take from Šešelj many of the guaranteed human rights. It often succeeded in this, which also made Vojislav Šešelj famous for being the detainee whose human and procedural rights were most often violated. 351. The Prosecution also found the forming of the Serbian Radical Party controversial, as well as the fact that the Trial Chamber admitted into evidence a large number of Šešelj’s statements from the bar table. Why would there be a need to go through witnesses, when Šešelj was in the courtroom, ready to repeat any of his statements and when he had published in his books every single word he had spoken. Šešelj never called for bloodshed, as the Prosecution claims, and not a single witness could confirm that. 352. In its attempt to bring freedom of speech charges against Šešelj, the Prosecution Appeal Brief claims that Šešelj euphemistically advocated for “population exchanges”. It does not provide a single example because that would be impossible. Šešelj always told the truth and never embellished things. The incendiary nature of Šešelj’s speeches is a matter of the listener’s personal impression. People in Serbia have always liked, and still do today, listening to Vojislav Šešelj’s speeches,

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because each of the speeches was educational, instructive, presented academically, but understandable to any listener. 353. The Appeal Brief states that Šešelj propagated a climate of fear using inflammatory language about past victimisation and genocide against the Serbs. The genocide against the Serbs, Jews and Roma in the Ustasha Independent State of Croatia during World War Two is a historical fact. Mentioning this genocide must not be considered as inflammatory speech, but every Serb has a duty to speak and write about this and to remind his people of the fascist Ustasha conspiracy, precisely in order to avoid any recurrence of it. In 2010, the Serbian Radical Party group of deputies requested that the National Assembly of the Republic of Serbia adopt a resolution condemning the genocide of the Ustasha NDH /Independent State of Croatia/. Unfortunately, pro-European forces, headed by Boris Tadi ć, refused to vote in favour of this document. 354. Today Croatia, which occupied the Republic of Serbian Krajina, is a member of the European Union even though its regimes have not renounced the Ustasha ideology. It may have done so on occasion just as a formality, but never in essence. The Croatian President, Kolinda Grabar Kitarovi ć, sings Ustasha songs at public gatherings and glorifies the Ustasha ideology. Serge Brammertz seems to mind that Vojislav Šešelj warned about the obvious return of the Ustasha ideology, but he does not mind being a frequent guest of Croatian officials, for whom the Ustasha ideology remains fundamental even today. Even though he often comments in the media in all the countries of the former Yugoslavia, Brammertz has never reprimanded his Croatian friends for their pro-Ustasha behaviour and rhetoric, but he went along with their request to ensure that Šešelj is convicted at any price, just like Carla Del Ponte previously went along with Zoran Đin đić’s request to take Šešelj to The Hague and never return him to Serbia. 355. Vojislav Šešelj, as a politician who openly and fearlessly speaks about all the negative aspects of society, is undoubtedly not liked by any government, but this cannot be a reason to insist on convicting him for crimes with which he had nothing to do. This should also have been the case of the ICTY Prosecution. 356. If it had been so, the Prosecution would not have been able to claim that Šešelj advocated merciless violence, refusing any compromise and that he promised

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bloodshed if Muslims and Croats were to refuse Serbian territorial ultimatums. The Prosecution criticises the Trial Chamber for not discussing this in the Judgement. How could it have discussed it, when this is a notorious untruth? The Prosecution was not able to find a witness to testify to the existence of such speeches. In fact, even the Prosecution acknowledged that Šešelj published all of his speeches, so if there had been a sentence calling for the shedding the blood of Muslims and Croats, it would have appeared somewhere. 357. It is true that the Serbian Radical Party’s paper Velika Srbija wrote about the threat of genocide that was looming over the Serbian people in the territory of Croatia, and that the Serbs were facing a new wave of extermination in certain territories. That this warning was justified is best illustrated by the ethnic cleansing of the Serbs in the Ustasha Operation Storm and the occupation of the Republic of Serbian Krajina. None of this happened because of Šešelj’s incendiary speeches but because of the revival of the Ustasha ideology, which Šešelj had already warned about. 358. The Prosecution wrongly concluded that by failing to address what it claims is clearly relevant evidence, the Trial Chamber did not provide a reasoned opinion and thus allegedly erred in law. It forgets, however, the key fact that it is not up to the Prosecution but to the Trial Chamber to determine the relevance of evidence. The Prosecution may point to a failure of the Trial Chamber on the basis of a specific fact, but not in this arbitrary way without presenting any arguments. 359. The Prosecution considers that the Trial Chamber failed to provide a reasoned opinion for findings on war crimes with which the Respondent was charged. The Prosecution does not understand on which part, as it says, of the lengthy evidence exhibits the Trial Chamber relied and claims neither the parties in the proceedings nor the Appeals Chamber have any way to understand the basis for the Trial Chamber’s conclusions. This statement is an insult to common sense. How would the Prosecution know what the Respondent understands as a party in the proceedings and what the Appeals Chamber will understand? The Prosecution considers itself to be the gauge for truth and justice, and even for what can be understood. Therefore, if the Prosecution does not understand something, neither Vojislav Šešelj nor the members of the Appeals Chamber will. Either the Prosecution is being arrogant or it is trying to

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impose its view on the Appeals Chamber, warning it in advance that only what is understood by the Prosecution is generally understandable. 360. It is similar when the Prosecution considers that the Trial Chamber does not give sufficient reasons for its conclusion that there was no widespread or systematic attack against the non-Serb civilian population in Croatia and Bosnia and concludes that the “Majority” does not explain what evidence it considered. What then, in the opinion of the Prosecution, is the meaning of the Trial Chamber’s following sentence: “In light of the totality of the evidence in the case file”? Any legal professional, or a layperson with any education, understands clearly that the Trial Chamber addressed all the evidence on record and ruled on that basis. This raises the question of what the Prosecution in fact wants to achieve with this type of inarticulate objection and whether it would have objected to this type of assessment if the Trial Chamber had, by some chance, found Šešelj guilty and sentenced him as the Prosecution had wanted. 361. The Prosecution objects to the fact that the Trial Chamber correctly noticed that the Prosecution had not met its burden because it did not clearly demonstrate that the civilians had been targeted en masse, when in fact they were not taking part in fighting and presented no danger to the Serbian fighters. The Prosecution is annoyed by the Trial Chamber, instead of admitting that such a charge had been imprudent and arbitrary and that it was not possible to substantiate it with evidence. In a civil war, in street fighting for every house, the presence of civilian combatants was typical. Many witnesses testified to this; even Prosecution witnesses. 362. The Prosecution analyses the statements of two witnesses and considers insufficient their statements that civilians had fled because of combat and that buses were provided for humanitarian purposes. It says that this should have been weighed against other evidence. Vojislav Šešelj had to be blamed at any cost. That is the only argument presented by the Prosecution in its Appeal Brief and it seems that it is not able to conceal its attitude towards Šešelj. Or perhaps it does not want to? If this had not been the case, it would never have dreamt of claiming in its Appeal Brief that the statements of the witnesses whose testimony it analysed had been taken out of context.

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363. In its analysis of a statement by a witness-victim, the Prosecution describes in detail an incident reported in the testimony that clearly shows that even this witness did not connect in any way Šešelj and the volunteers of the Serbian Radical Party to the tragic events experienced by the witness’s family. Šešelj did not challenge this during cross-examination either, so the question of what the Prosecution wanted to achieve through these allegations remains. The only logical conclusion to be reached is that the Prosecution thinks that all that is important in its Appeal Brief is to talk about crimes against non-Serbs and that this will lead the Appeals Chamber to the conclusion that these crimes are connected to Vojislav Šešelj. 364. This similarly applies to the analysis of other witness statements. Witnesses have spoken about the existence of some crimes in specific locations, but none of them pointed towards the existence of any sort of link between Šešelj and these possible crimes. Each time, the Prosecution draws the same conclusion or, rather, claims that the conclusions of the Majority cannot be reasonable in view of the evidence on record which the Trial Chamber had supposedly failed to consider. How is it possible that every time that it mentions the findings of the Trial Chamber, or rather the “Majority” as it call it, the Prosecution insinuates that the Trial Chamber did not address the evidence presented by the Prosecution? This is completely incorrect, of course, because the Trial Chamber based its decision precisely on this evidence, but the fact that the Prosecution offered pseudo-evidence is neither the problem of the Trial Chamber, nor of the Resistent /as printed/ and it should not be a problem for the Appeals Chamber. 365. Throughout its entire Appeal Brief, the Prosecution complains that the Trial Chamber did not provide sufficient reasons for its decision to acquit. This is simply unbelievable in view of the detailed reasons provided by the majority of the Chamber who voted for the decision and especially in view of the precise reasons provided for every detail set out in the concurring opinion of the Presiding Judge Jean-Claude Antonetti, which he attached to the Judgement. 366. The Prosecution claims that the Serbian authorities introduced restrictive and discriminatory measures for the non-Serbs, and gives as an example the takeover of power in Zvornik. Even if the Prosecution's allegations on the discrimination of the non-Serbian population were true, how has this anything to do with Vojislav Šešelj,

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since it is well known that neither he nor the Serbian Radical Party were in power in Zvornik? 367. When describing the incidents by location, the Prosecution did not produce a single new argument, a single fact that the Trial Chamber had not taken into account when reaching its decision. The Appeal Brief is simply a modified version of the Prosecution's Closing Brief, in which the Prosecution simply makes accusations and is angry at the Trial Chamber for not taking account of its allegations; as though this were the Trial Chamber's duty! If the Trial Chamber had acted in this way there would have been serious doubts about its independence. 368. On the matter of “widespread and systematic” attacks in Croatia and Bosnia and Herzegovina, the Prosecution concluded that it remains unclear how the Majority reached its conclusion on this. The problem here seems to be the Prosecution's understanding and not the potential omissions of the Trial Chamber because there were no omissions, where the Majority was concerned. 369. The Prosecution reaches the completely wrong conclusion that Šešelj could have been a part of the JCE simply because he organised volunteers and because he was kept informed by state officials, whose task this was, of the number of volunteers required in a particular location. The sending of volunteers with the intention of helping one's own people cannot be a war crime. The Serbs have always regarded this as being the height of patriotism and, as a patriot, Šešelj is proud of this. 370. The Prosecution insisted on the Trial Chamber dealing solely with their JCE theory and would not accept that the majority of the Trial Chamber, as they put it, embarked on a lengthy discussion of whether a plurality of persons had "the same views". The Prosecution's problem is that it cannot accept that the Trial Chamber has already addressed a matter that the Prosecution had not presented as an allegation. A strange understanding of justice and adjudication! 371. The Trial Chamber is correct in its position, even if the Prosecution objects to it, that the Prosecution’s Closing Brief also postulates, a priori , that the Serbian military campaign was illegal. If this had been the case, there would have been no need to differentiate between a military campaign that could have been legitimate and possible criminal departures from it, which could have been the only

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ground to convict. This very argument from the Closing Brief continues to be presented by the Prosecution throughout its Appeal Brief. 372. In its Appeal Brief, the Prosecution stated that it had never alleged that establishing Serbian autonomous regions, recruiting and deploying volunteers and arming civilians was criminal per se . Perhaps this is theoretically true, but throughout the Indictment and the evidentiary proceedings, the Prosecution attempted to prove otherwise. Thus, in the Appeal Brief, the Prosecution claims that it showed that Serb forces established, deployed and controlled by Šešelj and other JCE members systematically committed violent crimes against non-Serbs. The Prosecution did not prove this argument and was not able to prove it even by orchestrating witnesses. Thus, the Trial Chamber is correct when it states that “the bulk of the recorded crimes do not implicate Šešelj's men …". The Prosecution wonders which recorded crimes this relates to, as though it was not the Prosecution itself that wrote the Indictment against Vojislav Šešelj. 373. It is generally known, and was also noted by the Trial Chamber, that Vojislav Šešelj was in latent conflict with the persons that the Prosecution includes with him in the JCE. The Trial Chamber is right to conclude that Šešelj and Miloševi ć collaborated in order to defend the Serbs, and not in order to commit crimes, which is how the Prosecution wanted to portray this collaboration. The Serbian Radical Party and Vojislav Šešelj never had any military formations. All the volunteers that were sent out were under the command of the JNA, and Šešelj never participated in the forming, arming, training and sending of the so-called Serbian forces. He could not have done because he was only an opposition politician who had several serious conflicts with Slobodan Miloševi ć's regime. 374. The only argument used by the Prosecution to link Vojislav Šešelj to the JCE is its arbitrary assessment or, should that be, its regret that this was not what was adjudicated, and the conclusion is that it is unclear to the Prosecution in what way the Majority reached its conclusion. Presumably by deliberating and voting. 375. The Prosecution considers that the majority of the Trial Chamber failed in not following the Prosecution’s arguments when ruling on Šešelj’s responsibility for instigation. The Prosecution followed its own position that Šešelj’s propaganda campaign prompted crimes against non-Serbs. It seems that for the Prosecution, to

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prosecute someone for the spoken word is the height of civilizational achievement. The Prosecution cannot accept the Trial Chamber’s completely correct position that Šešelj’s statements were support for the war effort of his compatriots or that they were election campaign speeches. 376. The Prosecution concludes once again that the Majority of the Trial Chamber failed to provide a reasoned opinion on Šešelj’s criminal responsibility. The Majority found that such responsibility did not exist, and this is the Prosecution’s only problem. The Prosecution accuses the Trial Chamber of not providing sufficient reasons for its acquittal. In fact, the Prosecution accuses the Chamber for something that it does itself, especially in the Appeal Brief. 377. It is clear throughout the Appeal Brief that the Prosecution used specific forms of manipulation, that they had taken some of the reasoning in the judgement out of context, or that they only cited parts of paragraphs, all with the intention of confusing the Appeals Chamber. Similarly, throughout the proceedings, the Prosecution attempted to influence and shape the position of the Trial Chamber and was then surprised that its manipulation was not successful. 378. The Prosecution’s insistence on the Majority when talking about the failure to provide sufficient reasons for the acquittal from its point of view, of course, indicates that the Prosecution also has a problem when interpreting the ICTY Statute. By putting emphasis on the Majority, it is as if the Prosecution wants to draw the attention of the Appeals Chamber to the fact that the Majority did something wrong and that it did not have the right to do so. Or perhaps it wants to warn the Appeals Chamber that all the members must have identical positions. If two judges voted in favour of the Judgement, this is still the Judgement of the Trial Chamber, with any potential separate opinion of any dissenting judge. This is the judges’ right and stems from the ICTY Statute. 379. It is as if the Prosecution wants to say through this type of position that only those who share its opinion have the correct way of thinking and, as such, are more important. When it speaks of the Judges who voted for Vojislav Šešelj’s acquittal, the Prosecution is very doubtful, angry and even offended, which is not the case when it mentions Judge Lattanzi. As a party in the proceedings, the Prosecution must respect the Trial Chamber and the decision reached. It can attack the decision

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solely by using legally relevant arguments. Anything else casts doubts on the Prosecution’s good intentions. It is undeniable that the Prosecution has no such intentions where Vojislav Šešelj is concerned, but it should have with regard to the Trial Chamber. 380. The Prosecution’s view that the charge against Vojislav Šešelj is based on denigration of Croats in his speech of 6 May 1992 which the Prosecution considers to have been a violation of the right to security is incredible. Even if it is true that Šešelj denigrated Croats in his speech, that he used insulting or defamatory language when talking about them, it can by no means be the basis for the charge of persecution. This was the Trial Chamber’s conclusion that bothers the Prosecution. 381. The Prosecution also alleges that it is not relevant, in respect of any potential violation of the right to security, whether Šešelj’s alleged appeals for expulsion of Croats were ultimately carried out. Thus, the Prosecution considers that even though Šešelj spoke and his speech did not have any consequences, he must be held accountable. Why? Perhaps because he is Vojislav Šešelj. There is no rational explanation for the Prosecution’s position. 382. The Prosecution argues that evidence shows that after Šešelj’s speech, the Croats in Hrtkovci were subjected to discrimination, harassment and violence forcing them to leave Hrtkovci. The only problem is that the evidence mentioned by the Prosecution exists solely in its imagination. The real evidence confirms that not a single Croat was forced to leave Hrtkovci and that none of them left before concluding an agreement on exchange of property, which was normally of a disproportionately greater value to the Croats who were leaving Hrtkovci than to the Serbs who were moving into their houses after being expelled from Croatia. 383. The Prosecution’s conclusion on the matter of aiding and abetting liability is interesting. The Prosecution is quite perplexed that the Trial Chamber could have credited the non-criminal nature of the Accused. It asserts that this is not true. The Prosecution presumably thinks that Šešelj was born a criminal, and even though this is not possible to prove, it would be good if the Trial Chamber concluded it. Perhaps this is the Prosecution’s message to the Appeals Chamber and its plea to have Šešelj defined as a man of criminal nature.

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384. The Prosecution maintains that the Trial Chamber erred in fact by acquitting Vojislav Šešelj on all counts of the Indictment, and this error of fact occasioned a miscarriage of justice. The only truth is that it took an unacceptably long time for Vojislav Šešelj to obtain justice and it is precisely the Prosecution that bears the greatest responsibility for this, as it entered into proceedings without a single shred of valid evidence. And now, everyone else is to blame and at fault, only the Prosecution is faultless and only the Prosecution’s reasoning is correct. The fact is that it has no interest in the law or justice, that it does not care about the expeditiousness of proceedings and that it has demonstrated throughout all these years a lack of interest and lack of professionalism – and now, it considers all of this unimportant. 385. The Prosecution is suggesting to the Appeals Chamber that, if the Appeals Chamber is not able to find that the Trial Chamber erred, this too will lead to a miscarriage of justice. This is a completely unacceptable way of communicating in an appeal brief. The Prosecution has the right and the duty to highlight any potential Trial Chamber failure, but it must not insinuate what it would mean if the Appeals Chamber rules one way or another. 386. The Prosecution persistently, throughout practically every paragraph, threads the argument that the Trial Chamber did not deliver a reasoned Judgement. Reading this gives the impression that the Prosecution did not even read the Judgement or that it does not understand what a Judgement is or what it should look like. The Prosecution should know that, in addition to the basic text, a Judgement is composed of separate opinions of the Trial Chamber members and that all of this makes up the reasoning behind the Judgement. In the Judgement of acquittal of Vojislav Šešelj delivered on 31 March 2016, the reasoning amounts to 642 pages. Without the attachments, the Judgement is 105 pages long, the concurring opinion of Judge Antonetti is 482 pages long, and the separate opinion of Judge Niang numbers 6 pages, while Judge Lattanzi’s partially dissenting opinion amounts to 49 pages. Therefore, it is undeniable that the Judgement does not lack sufficient reasons, as the Prosecution continuously repeats throughout its Appeal Brief. 387. The civil war that took place in the territory of the former Yugoslavia in the period covered by the Indictment against Vojislav Šešelj did not take place in the

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territory of Serbia; not on any part of it. This seems to be clear to everyone apart from the prosecutors of The Hague Tribunal, who are not backing away even in their Appeal Brief from their absolutely unfounded position that crimes were allegedly committed in Hrtkovci and that they were committed in armed conflict. The Prosecution also maintains that no reasonable trier of fact could have found that the crimes in Hrtkovci were not committed in armed conflict. Should it be understood as a threat to the members of the Appeals Chamber that the Prosecution will declare the Appeals Chamber unreasonable if it upholds the position – the only correct one – held by the Trial Chamber that there had been no armed conflict in Serbia. 388. If the Prosecution states in the Appeal Brief that the Trial Chamber erred in fact in finding that a common criminal purpose to permanently forcibly remove non-Serbs from areas around Croatia and Bosnia and Herzegovina through the commission of crimes is not proven, it is then actually admitting that it did not have the legally relevant evidence to support its claims in the Indictment. 389. If the Indictment against Dr Vojislav Šešelj had had any basis, the Prosecution would not have had a problem presenting evidence to substantiate the charges. It was not because the Trial Chamber was sympathetic towards Vojislav Šešelj that it supported his side and adopted its decision because of empathy. Not at all. The Trial Chamber conducted a trial in which the Prosecution was privileged over Vojislav Šešelj. 390. Teams of people worked for the Prosecution who had at their disposal all the possible technical and technological resources, all available archives and documents, the wholehearted assistance from the ruling regime in Serbia and non- governmental organisations, and they all assisted the Prosecution in recruiting witnesses. All the expenses incurred by the Prosecution, including the salaries for the prosecutors and the other staff, were covered from the ICTY budget. 391. On the other hand, Vojislav Šešelj defended himself alone. On the one side in the courtroom there was the Prosecution team, on the other side – Vojislav Šešelj. Vojislav Šešelj formed a team that assisted him in the preparation of his defence, but he never received any reimbursements for the cost of engaging the team and the expenses incurred by the team members. Not a single dinar. It was not made

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possible for Vojislav Šešelj to finance his defence. This is another precedent at the ICTY. 392. The members of Vojislav Šešelj’s team frequently changed, mostly against his wishes. The Hague Tribunal itself did not allow him to appoint legal advisers as he wished. The legal advisers who were selected and registered were denied the right to privileged communication; some legal advisers withdrew from the team because they had left the Serbian Radical Party after being subjected to various influences. For a long time, Šešelj did not have a case manager. Is there any need to mention the months of complete isolation, when he was not allowed any contact with his legal advisers, or even with members of his immediate family. 393. Therefore, it is clear that Šešelj was in a completely unequal position compared to the Prosecution and that only truth and justice were his allies. Added to this, of course, was his legal knowledge and general education. 394. This is why the Prosecution must take responsibility for not proving a single charge. It was not able to, because Šešelj has never been involved anywhere in even the most minor crime, let alone a war crime. If this had not been the case, he would have been convicted a long time ago. 395. It is simply unbelievable that the Prosecution emphasises in practically every paragraph that the crime it laid at Šešelj’s door has not been proved. It clearly demonstrates its anger and fury because of this. As though someone else, and not the Prosecution, had a duty to prove these allegations. If it was not able to do this, it is pointless to blame the Majority, as it calls them, for this, and to repeat incessantly that the Judges of the Trial Chamber have erred. 396. The Prosecution is bothered by the fact that Šešelj was admired by the Serbian Radical Party volunteers, that they respected him and considered him as their moral authority. This is true, but does not represent a war crime. 397. The Prosecution persists in its intention to portray Šešelj’s speeches as prompting violence against non-Serbs, and the Trial Chamber Judges as not being reasonable triers of fact because they assessed correctly that Šešelj’s speeches had been support for the war efforts aimed at reinforcing the morale of soldiers and that Šešelj’s speeches galvanised the Serbian forces. Of course, some speeches were purely political, they were simply election campaign speeches.

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398. It is completely unclear how the Prosecution substantiates its view that Šešelj’s speeches contributed to the commission of crimes. The Prosecution repeats this assertion paragraph after paragraph, like a parrot, and does not have a single shred of evidence for it. Nobody has ever heard Šešelj calling for the commission of crimes. He did influence the Serbian Radical Party volunteers by calling on them to be brave and honourable soldiers, to be chivalrous in combat and not to commit any war crimes. 399. Inflammatory rhetoric, as the Prosecution calls Šešelj’s speeches, is not criminal. In order to support its opposing claim, the Prosecution relies on the fact that in an interview, a volunteer repeated Šešelj’s typical “phraseology” about the Karlobag-Ogulin-Karlovac-Virovitica line. Of course, it is not clear what is criminal in somebody wanting one day to restore the historical borders of his country. In fact, the idea of Greater Serbia is even today the most popular one in Serbia. 400. The Prosecution repeated countless times that the Trial Chamber had erred in fact because it concluded that Dr Šešelj had not aided and abetted war crimes. The Prosecution continuously repeats that Vojislav Šešelj instigated crimes through his speeches. Perhaps it thinks that an often-repeated lie will become the truth. 401. The Prosecution maintains that there can be no doubt that Šešelj’s conduct had a substantial effect on the charged crimes committed by Šešeljevci . This is followed by the Prosecution’s astonishing position that it is irrelevant whether his conduct was specifically directed towards the commission of crimes. This is in fact the Prosecution’s position with regard to Vojislav Šešelj. For the Prosecution, he is guilty, the evidence that disproves this is not relevant to it and anyone who thinks otherwise is unreasonable. 402. The Prosecution also has a tendency to put forward metaphysical arguments. Along with the regularly-used remark that no reasonable trier of fact could conclude that Šešelj’s speech in Hrtkovci did not amount to physical commission of persecutions, the Prosecution presents its unbelievable view that for the people who left Hrtkovci allegedly because of Šešelj’s speech, the speech itself constituted the force that drove them out, which makes Šešelj the physical perpetrator. 403. The Prosecution reaches a similar conclusion about Vukovar. Additionally, the Prosecution claims here that the use of the term “Ustasha” in the

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midst of escalating ethnic distrust and violence amounts to a violation of the right to dignity. And, of course, the conclusion is that Šešelj’s speeches represented a physical commission of persecution, deportation and forcible transfer. 404. It is true that Dr Vojislav Šešelj is an excellent orator, who is capable of galvanising and motivating, but the idea that he can carry out physical acts through his words is, it seems, only known to prosecutors of The Hague Tribunal. 405. The entire Appeal Brief is rife with arbitrary assessments. Words and expressions are repeated, the work of the Trial Chamber is treated with disdain, and the Prosecution is cross and suggests that only the Prosecution’s opinions and statements are correct. Without any evidence, of course. The impression is that the Appeal Brief was drafted simply because it was someone’s job to do it, while being aware that it is impossible to secure a conviction for Professor Vojislav Šešelj, simply because the entire legal profession believes in his innocence. 406. Nonetheless, the Prosecution requests that the Appeals Chamber find Vojislav Šešelj criminally responsible and sentence him accordingly. The Prosecution instructed the Appeals Chamber that it can also order additional briefing and reminded the Judges of the Appeals Chamber that they are only in a position to assess the evidence on the record and reach the relevant findings to assess Šešelj’s criminal liability. 407. Šešelj’s criminal liability is the Prosecution’s obsession, which must not in any way be the motive for the Judges of the Appeals Chamber, who can only uphold the Judgement of acquittal for Vojislav Šešelj on all counts. 408. The Prosecution has prepared an alternative for the Appeals Chamber and suggested that if the Appeals Chamber cannot establish Vojislav Šešelj’s criminal responsibility on the basis of the entire trial record, it should order a retrial. A retrial would suit the Prosecution, especially if the new detention lasted another 12 years. If Šešelj survived it, that is. 409. Professor Vojislav Šešelj is opposed to the remedy and the Prosecution’s proposals, and submits to the Appeals Chamber that it should reject both Prosecution proposals, because any further action in the Šešelj case before the ICTY would be a rape of justice.

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410. Professor Vojislav Šešelj hereby notifies you that this is his final communication with the ICTY and that he does not further intend to participate in any way in proceedings before the ICTY. 411. Professor Vojislav Šešelj will never return to The Hague Tribunal voluntarily because he spent almost 12 years in ICTY detention and was at The Hague Tribunal’s disposal. The Prosecution did not prove his guilt, because it does not exist, which Šešelj has proved before the ICTY. 412. Professor Vojislav Šešelj is taking the opportunity in his last submission to the ICTY to inform the Appeals Chamber that he has no intention of coming to The Hague even for the rendering of the Appeal Judgement, if any.

(By expert team member Vjerica Radeta) Word count: 30,000 /in the original/ /signed/ Professor Vojislav Šešelj

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