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 2 MICT-16-99-A 736 PUBLIC/JAVNO Translation 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 3 MICT-16-99-A 735 PUBLIC/JAVNO Translation 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 4 MICT-16-99-A 734 PUBLIC/JAVNO Translation 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 5 MICT-16-99-A 733 PUBLIC/JAVNO Translation 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.