Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17

1 Monday, 3 July 2006

2 [Open session]

3 [The accused not present in court]

4 --- Upon commencing at 8.32 a.m.

5 JUDGE ROBINSON: Will the registrar please call the case.

6 THE REGISTRAR: Good morning, Your Honours. This is case number

7 IT-95-14-R77-T, the Prosecutor Josip Jovic.

8 JUDGE ROBINSON: Thank you. And the appearances.

9 THE INTERPRETER: Microphone, please.

10 MR. ACKERSON: For the Prosecution, David Ackerson. I'm here with

11 Salvatore Cannata and Sebastiaan van Hooydonk. Sorry. My microphone

12 wasn't on. I hope that was picked up.

13 JUDGE ROBINSON: Yes, we have it on the transcript.

14 Yes.

15 MR. KRSNIK: [Interpretation] Good morning, Your Honours. Kresimir

16 Krsnik, attorney-at-law from Zagreb, Croatian Bar, on my own. Thank you.

17 JUDGE ROBINSON: Mr. Krsnik, the first matter that we had planned

18 to deal with was the Prosecution's application for admission of evidence

19 pursuant to Rule 89(C), but I gather that you have something to say.

20 Perhaps you might wish to tell us where the accused is.

21 MR. KRSNIK: [Interpretation] By all means, Your Honour. That is

22 probably the very first thing that I have to say. I need to apologise on

23 behalf of my client, and I hope the Chamber will show some understanding.

24 My client was unable, until as late as Saturday evening, to say what would

25 happen. His wife is ill, and we needed someone to look after her for

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1 three days. As you know, my client lives in Split, and I myself live in

2 Zagreb. It's a matter of connecting flights. We need to leave a day

3 early, before the trial, and then go back a day late. We needed to find

4 someone to take care of Mrs. Jovic, who is unable to move. She can't even

5 go as far as the loo.

6 We needed a person to look after her for three days. We spoke to

7 the Centre for Social Work as soon as we received your decision to start

8 our trial today, because they are the only institution in the Republic of

9 Croatia that has the duty to organise such care. This notwithstanding,

10 their reply was negative.

11 An emergency arose for us, and I wrote another motion describing

12 what happened, and I also attached their report. They sent out a team.

13 They went to their house, and they went to see their children. At our

14 request, they informed you accordingly.

15 Your Honours, I don't think there's any need to do too much

16 explaining. I'm sure you all understand that Mr. Jovic would much prefer

17 to be in the courtroom himself, and can we now please briefly go into

18 private session for something.

19 JUDGE ROBINSON: Yes, private session.

20 [Private session]

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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11 Pages 19-20 redacted. Private session.















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16 [Open session]

17 THE REGISTRAR: We are in open session, Your Honours.

18 JUDGE ROBINSON: Well, let me just repeat that. I was saying that

19 the order scheduling this trial was issued on the 15th of June. That is

20 more than two weeks ago. That is more than time enough, in my view, for

21 some arrangements to have been made.

22 MR. KRSNIK: [Interpretation] I fully agree, Your Honour, but our

23 efforts to organise this were enormous. We waited until Saturday night.

24 Mr. Jovic is under a lot of stress right now, as you probably can imagine.

25 He knows there's a trial here, and he just couldn't leave his wife. Even

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1 if he was here today, I'm not sure that he would be mentally able to focus

2 on the proceedings, even if we had been successful in setting the whole

3 thing up.

4 JUDGE ROBINSON: Yes, Mr. Ackerson.

5 MR. ACKERSON: Your Honour, I think that a warrant must issue in

6 this case. The Prosecution would ask for a warrant to issue. There is an

7 outstanding order for Mr. Jovic to be present. He's not present. Any of

8 these issues that are being raised, whether they are legitimate or not,

9 are matters for mitigation when Mr. Jovic appears. So we would ask that

10 this Court issue a warrant for his arrest.

11 JUDGE BONOMY: Mr. Ackerson, can we not carry on with the trial?

12 MR. ACKERSON: A trial in absentia?

13 JUDGE BONOMY: Mr. Jovic is represented.

14 MR. ACKERSON: Your Honour, I don't think that would be a prudent

15 way forward. I don't think that would actually resolve this case

16 successfully in the end.

17 I did speak to Defence counsel about the possibility of Mr. Jovic

18 appearing here a week from today, and that's a distinct possibility,

19 apparently, and so maybe we could make arrangements that we have a

20 provisional trial date a week from today, and then if he shows up we can

21 take the matter of his failure to appear into the mitigating circumstances

22 that Defence counsel is raising then.

23 JUDGE KWON: Mr. Krsnik, even if we are to allow the postponement,

24 you cannot guarantee that Mr. Jovic would be able to attend the trial

25 again, even after three months' time from now.

Page 23

1 MR. KRSNIK: [Interpretation] As for the leg fracture, that is

2 something that I can guarantee. The only thing I cannot guarantee, and

3 could we please just go into private session? There's something I would

4 like to say.

5 JUDGE ROBINSON: Mr. Jovic, are you sure we need -- Mr. Krsnik,

6 are you sure we need to be in private session? This is a public trial.

7 MR. KRSNIK: [Interpretation] No. I would not like to see the

8 recurrence of another illness, the illness that I mentioned in private

9 session, which is very serious and which at this time is receding, thank

10 God. I just didn't want to specify the illness. It is now in recession.

11 As for the fractures, I can guarantee that he will eventually

12 appear. I'm in a position to offer the Chamber these guarantees. The

13 only problem right now is the fact that she's unable to move. As soon as

14 we take care of that, if the other illness comes back, obviously she will

15 immediately -- immediately be hospitalised, but it will no longer be the

16 case of her being unable to move, which is what is hindering us now.

17 JUDGE ROBINSON: I imagine, Mr. Krsnik, the possible recurrence to

18 which you refer is like the sword of Damocles over the Chamber's head.

19 JUDGE BONOMY: Just for the avoidance of any doubt in the public

20 mind, what we're talking about here is a woman who has the use of elbow

21 sticks, elbow crutches to move around, a fairly common situation for many

22 people. The fracture was of which part of the leg?

23 MR. KRSNIK: [Interpretation] Your Honour Judge Bonomy, I have her

24 medical file here. I think we have an English translation. It's her

25 letter of discharge. I attached this to my motion.

Page 24

1 JUDGE BONOMY: Yes. But it doesn't tell us -- the letter of

2 discharge doesn't tell us which part of the leg was broken.

3 MR. KRSNIK: [Interpretation] To be perfectly frank, Your Honour, I

4 don't know that either. I think it's a multiple fracture. That's what I

5 understand.

6 JUDGE BONOMY: That's pure speculation, Mr. Krsnik. What we have

7 here is a woman with a broken leg who has had a month's treatment in

8 hospital, gets released because her husband's at home can assist her and

9 there is no suggestion in this material here that she can't get to the

10 toilet. In fact, it's made specifically clear that she can. So I for one

11 am certainly not persuaded that there's even a good medical reason for her

12 husband to be there constantly.

13 MR. KRSNIK: [Interpretation] Your Honour, it's the Centre for

14 Social Work that arrived at this conclusion in the course of their field

15 work, and this is what they eventually reported, that she was unable to

16 even make it to the toilet. This was the conclusion of the officials of

17 the Centre for Social Work. They went out to inspect the situation and

18 this is their conclusion both as concerns the Jovics and their children

19 too. The last passage reads: "We inspected the situation today and found

20 the lady to still be unable to walk. She uses crutches and the assistance

21 of another person to get to the toilet. She is fully dependent on any

22 assistance she obtains from other people in order to be able to move."

23 This is what the officials wrote when they came to their flat to

24 see for themselves what the situation was. These are officials who wrote

25 this report on pain of penalty. I think the system is the same both in

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1 Croatia and all over the world. Their report is something that carries a

2 decree of criminal liability. If there are proved to be things in their

3 report that are not true, they can be prosecuted. This is a state

4 service, the service for which they work.

5 If I may, when I was talking before about the pressure applied by

6 the OTP, of course we have a trial here. I wasn't referring to that. I

7 was referring to what my learned friend and I were talking today when we

8 exchanged our motions. That's what I meant when I said pressure, when my

9 learned friend said, "Well, let's meet again seven days from now." That's

10 what I referred to as pressure.

11 One thing I can say is that certainly we'll be doing our best. We

12 just need to organise the kids. That's the main thing. There need to be

13 shifts, two or three shifts, daytime shifts and night-time shifts. So

14 this is what really proved an insurmountable problem for us in terms of

15 organising this shift regime.

16 JUDGE ROBINSON: But you had two weeks in which to do that.

17 MR. KRSNIK: [Interpretation] That is precisely what we were

18 working towards, Your Honour. That's why we addressed the Centre for

19 Social Work. Under the law, it would be their duty to organise this, but

20 they simply couldn't. They could have sent her back to the hospital, but

21 they didn't. These are truthful arguments. I'm really embarrassed for

22 myself, for my country, for what happened. And there is this suspicion

23 that the whole thing that I'm telling you now is simply not true. You

24 know, it's a person's life that's at stake here. It's a person's life

25 that is at stake. Let me be brutally frank about this. And had this

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1 person appeared here in this courtroom, what condition do you think they

2 would be in? Do you think they could focus on this trial? Mr. Jovic

3 would be thinking about his wife.

4 Can we not have a postponement that would be considered a normal

5 and usual thing anywhere in the world such as any court would grant under

6 the circumstances?

7 I do apologise, Your Honour. I think I'm perhaps getting carried

8 away a little.

9 I was involved in the whole thing for 14 days. I'm under stress

10 myself. I explained to Mr. Jovic what his failure to appear means. I'm

11 not indifferent to this, and he himself knows full well what this means.

12 This was hanging in the balance. Should he appear in court today or

13 should he stay with his wife? He opted for the latter in the hope that

14 you would understand.

15 JUDGE BONOMY: Am I right in thinking, Mr. Krsnik, that a warrant

16 had to be issued for the arrest of Mr. Jovic before in this case?

17 MR. KRSNIK: [Interpretation] Your Honour, as for the first case,

18 Mr. Jovic decided to go to one of our courts under the cooperation

19 agreement that Croatia has with The Hague Tribunal. He wanted to have his

20 legal position explained to him, and he wanted to wait for a Croatian

21 court to make ruling concerning his legal position, and he said he would

22 not appear before The Hague Tribunal before such a ruling was passed.

23 This is true, and it is also crystal clear.

24 The Croatian courts failed to rule on this, and Mr. Jovic was

25 placed in detention back in the Republic of Croatia. He remained in

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1 detention for nearly seven days. Therefore, he knows very well what

2 happens in case of his failure to obey an order of this Court. However,

3 back then he did not understand the difference between the constitutional

4 law on cooperation with this Tribunal and the rules governing the work of

5 this Tribunal. When I explained the situation to him, I told him that he

6 could expect rulings from the Supreme Court of Croatia on this. The

7 question was whether a man not indicted of war crimes could be arrested

8 and brought here.

9 Under the law passed by the Croatian parliament, it is clear that

10 the only persons who can actually be arrested and brought before this

11 Tribunal are those accused of war crimes. He wanted to be perfectly clear

12 about this, what his situation was. And then I explained that it might

13 take a little longer until this is cleared up, and then he decided himself

14 to appear before this Court and to have all these legal aspects discussed

15 here. Honourable Judge Orie was present when this happened. He

16 presided. We decided to take our case before this Court. We realise at

17 this point in time that this was the only Court where we can fight our

18 legal battle.

19 JUDGE BONOMY: You mentioned that that decision to come to The

20 Hague was taken after he was kept in custody in Croatia; is that right?

21 MR. KRSNIK: [Interpretation] It was not a legal decision. I have

22 to be open about this. I'm pressing charges against that Judge. There

23 were no provisions in Croatian law enabling him to place my client in

24 detention. There was enormous pressure being exerted on the Croatian

25 government through the Ministry of Justice.

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1 I am still too scared to say, to speak openly about this. We are

2 making steps towards democracy with the division of powers. That is my

3 honest hope. But Mr. Jovic was unlawfully detained, and there is no

4 provision in Croatia to justify his detention.

5 I'm sorry that I'm letting the cat out of the bag now. I wanted

6 to keep this under wraps, but I am pressing charges against the Judge who

7 did that.

8 JUDGE BONOMY: If for any reason, illness or whatever, Mr. Jovic

9 was rendered incapacitated, what would happen as far as his wife's care is

10 concerned?

11 MR. KRSNIK: [Interpretation] I find it hard even to entertain --

12 entertain that thought, Your Honour. It's hard for me to even say this,

13 but I will nevertheless: Anything can happen. I believe it's a matter of

14 life and death. I personally had occasion to satisfy myself of that,

15 because if there is no one to take care of the lady, she will be left to

16 her own devices. The children may come during the morning, prepare a meal

17 for her, but who would take care of her over the night? She would be left

18 to the mercy of God.

19 JUDGE ROBINSON: How far away are the children?

20 MR. KRSNIK: [Interpretation] As is stated in the letter by the

21 social centre, one of the sons resides in Solin, an old ancient Roman

22 town. This is a suburb of Split. It's some 15 to 20 kilometres away from

23 Split. The other son lives at Krbavska Street, which is not strictly the

24 centre of town. It is part of the new housing developments in the

25 outskirts of Split, about five or six kilometres away from Mr. Jovic's

Page 29

1 home, roughly speaking, of course.

2 JUDGE BONOMY: Is there any form of animosity between the children

3 and their parents?

4 MR. KRSNIK: [Interpretation] Truth to tell, I don't know. I am

5 not that intimate with the family.

6 JUDGE ROBINSON: They live in the neighbourhood. That's what

7 you're just saying. Virtually they are in the same area. I had thought

8 they lived many, many miles or kilometres away. They're in the same

9 geographical area. Why are they not able to attend to their mother for

10 two or three days?

11 MR. KRSNIK: [Interpretation] I reiterate: We did all in our power

12 to organise this, and even Mr. Jovic on his part did his best, and had we

13 been successful in that, Mr. Jovic would be here today.

14 JUDGE ROBINSON: We will adjourn for half an hour, and we'll

15 consider this matter, including the application made by the Prosecutor.

16 --- Recess taken at 9.03 a.m.

17 --- On resuming at 9.35 a.m.

18 JUDGE ROBINSON: I'll give the Chamber's decision in this matter.

19 The trial is set for next Tuesday, the 11th of July, at 8.00 a.m.

20 We'll sit for half a day.

21 If the accused does not attend, a warrant will issue for his

22 arrest, and the accused will stay in custody until a convenient time is

23 found for the trial. It needs to be borne in mind that the Tribunal

24 breaks for summer recess on Friday, the 14th, and resumes on August the

25 7th.

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1 I am to say that Judge Bonomy dissents in the latter part of the

2 decision. He would grant the Prosecution's application for the issue of

3 the warrant to be enforced if the accused did not make satisfactory

4 arrangements for attendance in advance of next week's hearing.

5 The hearing is adjourned.

6 --- Whereupon the hearing adjourned at 9.37 a.m.,

7 to be reconvened on Tuesday, the 11th day of July,

8 2006, at 8.00 a.m.