1 Thursday, 30 November 2006
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.06 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Madam Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. This is case number
8 IT-95-14-R77.6, the Prosecutor versus Domagoj Margetic.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 The trial was scheduled to start at this very moment.
11 Nevertheless, the Chamber has decided that we'll first, before the trial
12 starts, have a brief hearing on an outstanding matter in relation to
13 witness protection where the Chamber earlier decided that it would hear
14 the Defence first before taking any decision. For that reason, we now
15 turn into private session.
16 [Private session]
11 Pages 18-20 redacted. Private session.
17 [Open session]
18 THE REGISTRAR: We are in open session, Your Honour.
19 JUDGE ORIE: Thank you, Madam Registrar.
20 We've now come at the point that the trial in this case will
22 The Chamber has in mind to proceed in the following way: First to
23 hear brief opening statements from Prosecution and Defence, perhaps
24 followed by a few questions by the Chamber to verify whether we have
25 understood exactly what the Prosecution, what the Defence case is, then
1 put some additional questions on the basis of the opening statements to
2 explore whether there are any facts not in dispute so that we could
3 proceed without paying attention to it in presentation of evidence, and to
4 then proceed to the presentation of the Prosecution's case and later hear
5 the evidence the Defence would like to present.
6 Therefore, Ms. Sutherland, I'd like to give you the opportunity to
7 make an opening statement if you wish to make one, and I'd like to limit
8 your time to seven minutes.
9 Please proceed.
10 MS. SUTHERLAND: Your Honours, the essential facts in this case
11 revolve around the accused publishing on the internet web site,
12 www.domagojmargetic.com, the entire confidential Prosecution witness list
13 in the case Prosecutor versus Blaskic and three articles authored by him
14 about protective witnesses contained in the witness list. The accused
15 disseminated to the public the identity of 48 persons who had been granted
16 pseudonyms, 21 of which had been granted closed-session status by the
17 Blaskic Trial Chamber. The magnitude and implications arising from such
18 egregious conduct distinguishes this case from any other contempt case
19 heard by the Tribunal to date. The evidence will establish beyond
20 reasonable doubt the accused published the witness list and the first,
21 second, and third articles on the web side www.domagojmargetic.com
22 knowingly and wilfully in violation of orders of the Blaskic Trial Chamber
23 and interfered with the Tribunal's witnesses. As such, he interfered with
24 the administration of justice and should be found in contempt of this
1 First, witnesses are expected to testify that they observed the
2 witness list and the first, second and third articles on the said
3 web site. The first article authored by the accused which accompanied the
4 witness list clearly showed --
5 THE INTERPRETER: Could Ms. Sutherland please slow down. Thank
7 JUDGE ORIE: Ms. Sutherland, you heard the request. I hope it's
8 not caused by the time-limit I set.
9 Please proceed.
10 MS. SUTHERLAND: The first article authored by the accused which
11 accompanied the witness list clearly shows that the accused knew the
12 material was confidential. In the article he stated: "I have decided to
13 publish this list of protected witnesses."
14 On the 12th of September, the accused issued an official statement
15 on the web site www.croatianworldwideassociation.com web site wherein he
16 stated: "I published one of the witness names in an article on my
17 web site on July 14, 2006. Subsequently I published the entire witness
18 list on my web site on the 23rd of July, 2006. I removed and deleted the
19 entire witness list from my web site on August 2nd, 2006."
20 Second, the evidence will show that the accused knew that the
21 information disclosed was protected. The accused received the witness
22 list from the Prosecution pursuant to its Rule 65 ter obligations in
23 another case. The witness list consisted of two ICTY registry
24 confidential lists and a public ICTY registry public list of the
25 Prosecution witnesses in the Blaskic trial. Of the two confidential
1 lists, one had a handwritten annotation in English on the first page
2 "confidential," and the other, a handwritten annotation in English,
3 "confidential, do not distribute." The witness list included the
4 identities of 48 witnesses and their pseudonyms.
5 The witness list also included the words "clos.," c-l-o-s., next
6 to the witnesses who testified in closed session. The cover letter that
7 accompanied the witness list received by the accused on the 16th of May,
8 2006 explicitly warned him that: "This material is subject to oral and
9 written non-disclosure orders. None of this material is to be used or
10 disclosed for any purpose not directly related to the preparation and
11 presentation of the above-titled cases. It may not be used for any other
12 purpose including as to any other case or proceeding at the ICTY."
13 In the second and third articles authored by the accused, the
14 accused acknowledged that the witnesses he was writing about enjoyed
15 protective measures status and referred to that fact, that a number of
16 witnesses testified in closed session under pseudonym. Evidence will show
17 that subsequent to the publication of the witness list and the articles
18 the accused admitted on a number of occasions that he was aware of the
19 confidentiality of the material.
20 On the 2nd of August, 2006, he was reported by HINA news agency as
21 saying: "He published a list of all the protected Prosecution witnesses
22 from the trial of Bosnian Croat General Tihomir Blaskic on his web site
23 three weeks ago."
24 JUDGE ORIE: Ms. Sutherland, when I listen to the French
25 translation, they are quite a bit behind, so would you please give them
1 some time to catch up and then proceed a bit more slowly.
2 MS. SUTHERLAND: Thank you, Your Honour. I apologise to the
4 On the 20th of August, 2006, in a handwritten note --
5 JUDGE ORIE: Ms. Sutherland, please proceed.
6 MS. SUTHERLAND: On the 20th of August, 2006, in a handwritten
7 note to the Zagreb County Court, the accused stated: "I give you my word
8 and promise that I will never again disclose or in any way use
9 confidential ICTY information."
10 Other documentary evidence will show that the information
11 disclosed was covered by court orders issued by the Blaskic Trial Chamber.
12 The evidence will establish beyond reasonable doubt that by publishing the
13 witness list the accused interfered with the administration of justice by
14 interfering with witnesses who testified in the Blaskic case. The
15 interference is that their lives have been significantly affected because
16 they were witnesses before the ICTY and the disclosure of their identity
17 promised to remain confidential has affected their willingness to
18 cooperate with the Tribunal in the future. In fact, the violation of
19 their protections by the accused has caused one witness to indicate that
20 the witness no longer is willing to cooperate with the Tribunal, and two
21 of the witnesses that they are unwilling to cooperate with national
23 By his actions and words, it is evident that the accused intended
24 to interfere with witnesses. At a minimum, it is evident that the accused
25 was aware of the likelihood that his disclosure of the protected identity
1 would interfere with witnesses. With this awareness, he continued
2 regardless thereby accepting the results. There is evidence that the
3 publication of the witness list by the accused interfered with the
4 witnesses. The witnesses are expected to testify that as a result of the
5 publication they have suffered psychological harm in their lives and that
6 of their families have been seriously affected. One witness is undergoing
7 psychiatric treatment as a result. They live in constant fear for their
8 safety and security and that of family members. They live in fear of
9 repercussions for having testified against Blaskic. Their freedom of
10 movement has been enormously curtailed.
11 The evidence will show that the accused was aware and accepted the
12 likelihood that -- or at least he was manifest indifferent to the
13 repercussions which may occur from the publication of the witness list
14 and/or that the witnesses may not be willing to cooperate with the ICTY or
15 future judicial -- or judicial bodies in the future. The evidence will
16 show that the accused's cavalier approach to the effect of his publication
17 or the relevance to the people whose identity he reveals. In the first
18 article, the accused said he would "sooner or later publish that
19 confidential document because I have done so before. I have said that I
20 will always and regardless of the people in question do the same,
21 publish the information I obtained."
22 The evidence will show that the accused carried out the
23 intentional dissemination of the protected identities of 48 witnesses with
24 no control or limits on the dissemination. The protected information
25 disclosed by the accused was disseminated to a wider audience, including
1 web sites www.011385.com and www.lijepanasadomovinahrvatska.com. The
2 information was either copied or hyperlinked back to the offending
3 material on the accused's web site, www.domagojmargetic.com.
4 Publishing information on the internet makes the information
5 accessible to an indefinite audience and therefore greatly increases the
6 likelihood of interference with witnesses. The evidence will finally
7 prove that the accused's denigrating characterisation of the witnesses
8 whose identity he chose to expose to the public. In the accused's
9 official statement, he states: "The reason I published the witness list
10 in part was to reveal to the world that some witnesses were in fact
11 Mujahedin or better known to the world as terrorists. In light of the
12 anniversary of 9/11, it is important for the public to know with whom the
13 ICTY were working with to prosecute General Tihomir Blaskic."
14 The Prosecution case --
15 JUDGE ORIE: Ms. Sutherland, I gave you seven minutes. We are
16 quite a bit beyond the seven minutes now.
17 MS. SUTHERLAND: Your Honour, I have one sentence in conclusion.
18 JUDGE ORIE: Then we'd like to hear that last sentence.
19 MS. SUTHERLAND: The Prosecution case is the oral evidence you are
20 about to hear on the documentary evidence submitted as part of the Rule
21 65 ter exhibits. The evidence shows in this case will prove beyond
22 reasonable doubt that the accused knowingly and wilfully violated the
23 orders of the Tribunal, interfered with the Tribunal's witnesses and as
24 such the accused interfered with the administration of justice and is in
25 contempt of this Tribunal.
1 This completes the opening statement, Your Honour.
2 JUDGE ORIE: Thank you, Ms. Sutherland.
3 Mr. Miljevic, do you want to make an opening statement as well, or
4 would you like to delay your opening statement?
5 THE INTERPRETER: Microphone, please, for Defence counsel.
6 JUDGE ORIE: Mr. -- Yes.
7 MR. MILJEVIC: [Interpretation] Your Honours, I can say a few
8 introductory words.
9 First of all, this indictment was filed on the basis of the
10 inherent powers of this Tribunal. I have to say despite the earlier
11 adduced positions in different other cases that my client and I feel that
12 this Tribunal does not have jurisdiction to try cases like these; namely,
13 I'm quite certain that the intention of Resolution 808 of the 3rd of May,
14 1993, and Resolution 827 of the 13th of May, 1993, whereunder this
15 Tribunal was established and when its Statute was adopted did not foresee
16 its jurisdiction for cases like these. I have carefully read both
17 Resolutions, and they do not refer to what this Tribunal should by example
18 try or predominantly try but it says expressis verbis that it is the
19 exclusive jurisdiction of this Tribunal to try severe violations of
20 humanitarian law in the former Yugoslavia.
21 This is what I felt I should say in the introduction, because I
22 believe that this Tribunal is not competent to try such cases on the basis
23 of its inherent powers, inherent authority.
24 Now, as regards the indictment itself, the indictment considers
25 that my client, Domagoj Margetic, a Croatian journalist, is in breach of
1 Rule 77(A)(i) and (A)(iv) by having disclosed a list of protected
2 witnesses. I have to say in brief that it will not be at all in doubt
3 that all these witnesses have under decisions of previous Trial Chambers
4 in 1997, concretely speaking on the 10th of July and the 10th of November,
5 1997, acquired protective status. That is indubitable. There is no duty
6 also that Domagoj Margetic has already been before this Tribunal and that
7 proceedings for contempt of court had already been instituted which
8 referred to the same list of protected witnesses.
9 However, what will be disputable is what follows after Count 3 of
10 the indictment, which is the 7th of -- of July, 1997. I don't know why
11 the OTP chose that day, but by a careful examination of the documentation
12 I found nothing of significance which happened on that particular day in
13 relation to this legal matter. In fact, to be quite honest, I found
14 nothing which is of relevance to this legal matter. It seems to my client
15 and it seems to me that this date was chosen deliberately because my
16 client still maintains, and he also maintained so in July and August of
17 this year, that as of the 11th of July this year that list of protected
18 witnesses was not -- has not been confidential but was in the public
19 domain, accessible to the public.
20 Now, whether my client maintains that with justification or
21 misinterprets the rulings of this Court will be seen during the
22 proceedings. It is, however, quite clear that on the 11th of July, during
23 the trial to the accused journalist Josip Jovic this Tribunal adopted a
24 decision on the basis of a submission by the OTP whereunder the list was
25 published, the list of protected witnesses.
1 My client, who is also a jurist -- who is not a jurist and only
2 has some indirect knowledge of jurisprudence, can say that on the 7th of
3 July nothing happened. On the 14th of July, Domagoj Margetic, on his
4 web site www.domagojmargetic.com named a handful of witnesses who were on
5 the list of the protected witnesses in the Blaskic trial. And between the
6 23rd and the 26th of July, the other articles which the OTP refers to were
8 My client learned that on the 28th of July, 2006, the Prosecutor
9 filed an ex parte and urgent motion for an order for the immediate
10 cessation of violation of protective measures, and even before being
11 served that motion by the county court in Zagreb my client -- yes. It
12 will be easier for me to -- thank you.
13 My client, the moment he learned about this motion of the 28th of
14 July of this year he actually extinguished his web site on the 1st of
15 August this year. My client maintained that all until the 22nd of August
16 it had been absolutely permitted to publish that list, and it was in that
17 conviction that apart from the fact on -- that on the 11th of July the
18 ruling was brought in the proceeding against the Josip Jovic, and on the
19 22nd of August a ruling was handed down by this Tribunal which was read by
20 Justice Patrick Robinson whereunder the list of protected witnesses was
21 again proclaimed confidential and sealed.
22 If this happened between the 7th of July and the 2nd of August,
23 and my client claims that from the 11th of July to the 22nd of August this
24 list was not at all confidential, then it is quite certain that as
25 required by Article 77 under (A) this is something which is not applicable
1 to him, that is, voluntary and wilful component of guilt, namely
2 deliberate interference with justice on his part. Actually, my client
3 acted in a quite permitted way after the 11th of July until the 1st or 2nd
4 of August this year or at least he was -- he laboured under a justified
5 misconception to the effect that such conduct was permitted.
6 So what will be at issue here will be elements; namely, whether at
7 the time of the commission of the acts that my client is charged with,
8 whether his conduct had been disallowed at all; secondly, on what web
9 pages was this list published; third, in whose possession are those
10 web sites, web pages; and fourth, what are the exact dates of the
11 publishing of the disputable materials on the internet and on the listed
12 web sites. In responding to these precisely define questions which are
13 also so defined in the brief of the defence of my client who only
14 yesterday came, it will be quite clearly shown that his intention had
15 never been to be in contempt of this court but that by publishing the
16 disputable material in an allowed period he wanted to indicate a certain
17 conduct on the part of the OTP of the Tribunal in The Hague.
18 Therefore, I claim that from the 7th of July, and especially from
19 the 11th of July this year up until the 2nd of August this year, my client
20 performed an allowable action. If that is not so, he was truly in a
21 justified misconception as to the acts of this court.
22 JUDGE ORIE: Thank you, Mr. Miljevic. As I said before, the
23 Chamber might have some questions as to the -- what -- to verify whether
24 it fully understands the Prosecution's case and the Defence case.
25 [Trial Chamber confers]
1 JUDGE MOLOTO: If I might start with you, Ms. Sutherland. May I
2 just find out from you, you told us in broad outline in your opening
3 statement what the accused is alleged to have said in the second and third
4 articles that he published. What did he say in the first?
5 MS. SUTHERLAND: What did he say in the first article, Your
6 Honour? That he was publishing a secret list of witnesses. He mentioned
7 that the witnesses were protected.
8 I can expand if you want. I can go to the exhibit, Your Honour.
9 JUDGE MOLOTO: We'll deal with that in evidence. I just wanted to
10 get the theme of what he said, what he talked about in the --
11 MS. SUTHERLAND: The title -- the title of the document is
12 called "Exclusive list of confidential Hague witnesses given to me by
13 Carla Del Ponte's assistant."
14 JUDGE MOLOTO: Thank you very much. You also mentioned in your
15 opening statement that the publication had the effect of interfering with
16 the witnesses in the Blaskic case. What I do want to find out from you
17 is, is it the Prosecution's case that the publication interfered with the
18 Blaskic case witnesses, protected witnesses, only, or does it go beyond
20 MS. SUTHERLAND: Your Honour, it's our position that -- that his
21 interference does go beyond the Blaskic witnesses, but the evidence that
22 we will bring before you in this case relates to three witnesses who
23 testified in the Blaskic case who have been -- who were the victims of --
24 of the disclosure. But the very fact that this information is on a
25 web site means that when people learn about this disclosure they may well
1 be put off testifying and cooperating with this Tribunal and/or national
3 JUDGE MOLOTO: It was indeed because of that statement you made
4 also in your opening statement that I wanted to find out whether is it the
5 Prosecution's case that it's only the witnesses in the Blaskic case or
6 future witnesses, potential witnesses, who may be called to come and
8 MS. SUTHERLAND: It's also potential witnesses. But the evidence
9 that we -- that we seek for you to hear is limited to the Blaskic case.
10 JUDGE MOLOTO: Okay. Thank you very much.
11 JUDGE ORIE: And could I ask one additional question then. The
12 three witnesses you want to call or all of the witnesses on the list?
13 MS. SUTHERLAND: All of the witnesses on the list.
14 JUDGE ORIE: Yes. And interference with witnesses under (A)(iv)
15 does that. Is it the Prosecution's case that you could interfere with
16 witnesses even if they are or may not be aware of their names being
17 published on a web site? Is it your case that you could convict for
18 interference with, well, let's say, all the 40 witnesses, the protected
19 witnesses, without evidence that all of these witnesses and not just three
20 were aware of the publication?
21 MS. SUTHERLAND: Just a moment, Your Honour. If you'd give me a
23 JUDGE ORIE: Yes.
24 [Prosecution counsel confer]
25 MS. SUTHERLAND: Your Honour, it is -- it is our position that you
1 can interfere with witnesses even if they're not aware of their names
2 being published on the web site, because it goes to the issue of potential
3 witnesses who may -- who may testify in the future.
4 We have direct evidence of -- that we wish to bring before the
5 Chamber of three witnesses who have been interfered with.
6 JUDGE MOLOTO: I'm not following your argument on this point,
7 Ms. Sutherland, because the question is: Can you interfere with witnesses
8 who are not aware of their names being on the list. Obviously a potential
9 witness in the future must be placed in the same position. He also has
10 not been aware that names were put -- were published on the web site.
11 That potential witness would not know that there had been a publication
13 MS. SUTHERLAND: Your Honour, it's the witnesses -- the 48
14 witnesses that are protected. Now, if they're not aware, one of those 48
15 witnesses aren't aware of --
16 JUDGE MOLOTO: The publication.
17 MS. SUTHERLAND: -- the publication, that doesn't mean that the
18 accused still can't be found guilty under 77(A)(iv) of interfering with
19 witnesses who have testified and other potential witnesses, because it's
20 other witnesses out there who read this information on the web site who
21 may well have testified but are now because of this incident are not
23 JUDGE MOLOTO: But that was not the question from Judge Orie. The
24 question from Judge Orie was: Is it possible to be -- to be interfered
25 with as a witness if you are not aware that your name has been published.
1 And then you responded by saying, well, it does interfere even if you are
2 not aware because future potential witnesses may not want to come. That's
3 when I intervened, and I said but based on the question that a witness
4 who's unaware of the publication of his name may or may not be interfered
5 with, then the future potential witness must also be unaware of the
6 publication, and the question was would the future potential witness who
7 is unaware of the publication, can he be said to be interfered with by the
8 publication that he's unaware of.
9 MS. SUTHERLAND: I take your point, Your Honour, and the answer I
10 think has to be no.
11 JUDGE MOLOTO: Thank you.
12 JUDGE ORIE: Thank you for these clarifications, Ms. Sutherland.
13 I'd like to explore at this moment what this case is actually about.
14 From the questions of the Bench, Ms. Sutherland, you may have
15 understood that one of the issues the Chamber would like to pay attention
16 to is -- is the exact structure of 77(A)(iv), perhaps together with 77(A),
17 the first initial paragraph. But perhaps more important the Chamber would
18 like to explore what is in dispute as far as facts are concerned.
19 I do understand from Mr. Miljevic that the Defence will be first
20 of all that the disclosed list was in the public domain, that the Defence
21 takes an issue on what web sites it was published. Third, who was the
22 owner of these web sites. The possessor, yes. In the written material I
23 saw ownership, but at least who was in possession of the web sites. Four,
24 that the dates on which the material was published are relevant. And
25 finally, the intent Mr. Margetic has had when publishing.
1 Therefore, I'd like to see whether all the other matters are not
2 in dispute.
3 Mr. Miljevic, do -- does the Chamber well understand the position
4 of the Defence that you're not challenging that Mr. Margetic published,
5 I'm not saying yet on what web site, but did publish at any time on a
6 web site the witness list?
7 THE INTERPRETER: Microphone.
8 MR. MILJEVIC: [Interpretation] Your Honours, I believe that I was
9 quite clear before. We are not challenging at all that Domagoj Margetic
10 indeed published a list of those witnesses, but in a period between the
11 15th of July and the 26th of July this year.
12 JUDGE ORIE: Yes. Is there any dispute -- I don't think when I
13 understood you well, there's no dispute about the fact that until, as you
14 said, the 11th of July, and let's just keep it to that for the moment,
15 that protective measures were in place in respect of the witnesses that
16 appear on the list that was published by -- or was put on the web site by
17 Mr. Margetic? The parties agree on that?
18 Mr. Miljevic.
19 MR. MILJEVIC: [Interpretation] That is true. That is the
20 demarcation line. That is what I said in my introductory comments, that
21 the 11th of July is the date from which Domagoj Margetic thought,
22 considered, maintained that it would be allowable conduct to publish that
23 list. After the motion of the 28th of July by this Tribunal, he removed
24 that list from his web site.
25 JUDGE ORIE: Yes. Then we talk about putting the within list on
1 the internet. Also the indictment says that publications were made by
2 Mr. Margetic. Again, I'm not talking about a time-limit, but that's not
3 in dispute either, I take it?
4 THE INTERPRETER: Microphone, please. Microphone.
5 MR. MILJEVIC: [Interpretation] Your Honours, what do you mean
6 again? If you are talking about the previous proceedings, it was on the
7 15th of June that the motion was filed and the case was actually abandoned
8 on the 15th of June. So I'm not sure what you're referring to.
9 JUDGE ORIE: What I'm talking about is that the indictment does
10 not only say that Mr. Margetic published a list of witnesses but also that
11 he wrote articles in which he revealed names of witnesses. Is that in
13 MR. MILJEVIC: [Interpretation] It is in dispute, because that is
14 not the way it is claimed in the indictment. Under number 5 in the
15 indictment, it is said that on the 15th of July, Margetic authored and
16 published two articles on his web site with a list that he authored his
17 two -- that he published his own articles with a list, and this is what
18 I'm going to prove is indisputable, that that was so. But I don't
19 understand the meaning of again elsewhere, because this is not what the
20 indictment claims.
21 JUDGE ORIE: No. I'm just making a distinction at this moment
22 between publishing a list and publishing an article in which names are
23 mentioned, and that's not in dispute. I do understand that.
24 MR. MILJEVIC: [Interpretation] It's not in dispute. Indeed, on
25 the 15th of July two articles were published, and it is true that one
1 should make a distinction.
2 JUDGE ORIE: Yes. We've now explored what seems to be in dispute,
3 that is, when the publications took place, whether that was, as the
4 indictment says, on or about the 7th of July, or as the Defence claims,
5 after the 11th of July.
6 Still in issue is what web sites, and one of the issues is the
7 possession of the web site.
8 May I ask you, Mr. Miljevic, possession of the web site, to what
9 extent is that relevant? I mean, if I publish something on someone else's
10 web site, would that make any difference?
11 MR. MILJEVIC: [Interpretation] It wouldn't make any significant
12 difference. Indeed, you're right to intervene this way. However,
13 Croatian law does distinguish between possession and ownership. So we
14 will see in whose possession the web page was.
15 JUDGE ORIE: No, the issue is the following: Let's assume that
16 Mr. Margetic published on the web site of a multinational the same
17 information. Would that make any difference for the charges brought
18 against him?
19 MR. MILJEVIC: [Interpretation] Your Honour, basically no, but then
20 the Prosecution cannot persist in using this term that they use in the
21 indictment all the time. I counted the number of times that they used
22 this wording, that he published this on his web site. It is due to this
23 terminology used by the Prosecution that I said what I said, but otherwise
24 you are right.
25 JUDGE ORIE: Yes. Well, I think from what I've seen on the filed
1 materials that it's not only the Prosecution that uses that terminology
2 but that Mr. Margetic in his own submissions says -- talks about "my
3 web site." But that's evidence. We'll look at that later, whether -- to
4 what extent we need to hear evidence on that, to what extent it is
5 relevant in the context of this case.
6 Then finally you said you'd like to prove that Mr. Margetic had no
7 intent to disrespect the Tribunal. To what extent is that relevant?
8 I'm --
9 MR. MILJEVIC: [Interpretation] It is relevant because the basic
10 features of the charges brought against my client from Rule 77(A), that
11 means that this is constituted only if a person does this wilfully and in
12 full awareness. My witness -- my client stresses that he never wilfully
13 wished to commit any kind of contempt of this Court. He simply wanted to
14 indicate certain impermissible or erroneous acts on the part of the Office
15 of the Prosecutor, not the court, not by any means. That is why he wrote
16 this book which his Defence has given and wishes to have put in evidence.
17 JUDGE ORIE: Yes. The issue might be whether the rule requires
18 wilful behaviour in terms of the publication of lists of witnesses. So
19 whether it is a matter of intent or whether it's a matter of motive.
20 Motive might be important, rather, for sentencing than for -- for the
21 question whether the offence has been committed.
22 We've now focused on what seems to be in dispute --
23 [Trial Chamber confers]
24 JUDGE ORIE: Ms. Sutherland, the Prosecution will have an
25 opportunity now to present its case, to present evidence to the Court, and
1 we'll decide on the protective measures of MC2 and 3 after we have heard
2 the evidence you present without any problems in relation to protective
4 Please keep in mind that a lot of issues seem not to be in dispute
5 anymore. Is it clear to you?
6 MS. SUTHERLAND: Just one moment, Your Honour.
7 [Prosecution counsel confer]
8 MS. SUTHERLAND: Your Honour, just if I can go back to Your
9 Honour's question about the interfering with witnesses who are not aware
10 of the identity --
11 JUDGE ORIE: And specifically interference with witnesses under
13 MS. SUTHERLAND: Yes.
14 JUDGE ORIE: Which is, of course, a very specific, I would say,
15 example of how contempt of court could be committed.
16 MS. SUTHERLAND: And Your Honour put the question to me: Can he
17 still be found guilty under 77(A)(iv) of interfering with witnesses if the
18 witnesses weren't aware that their identities in fact had been disclosed.
19 It's our position that -- that he can be, because the risk of
20 repercussions to the witnesses who testified in the Blaskic case, even if
21 the witnesses aren't aware of the publication, that there still might be
22 repercussions against them in the future and they're unaware of their
23 identity being disclosed.
24 JUDGE ORIE: Yes. The same would not be true for, I would say,
25 the overall category of potential future witnesses. So then in this -- if
1 you explain 77(A)(iv) in this way, then your case would be limited to the
2 names of witnesses on the list whether aware or not.
3 MS. SUTHERLAND: Yes, Your Honour. But there's also the issue of
4 interfering with other potential witnesses as a result of what he did.
5 Other witnesses --
6 JUDGE ORIE: Yes. I do understand that if I see my neighbour
7 beating another neighbour that this might frighten me because the same
8 could happen to me. That's the effect of the offence. However --
9 MS. SUTHERLAND: Yes.
10 JUDGE ORIE: -- it might not be the offence itself.
11 MS. SUTHERLAND: Yes.
12 JUDGE ORIE: I'm trying to find out what, in your view, the
13 offence is. Is the offence interference with all potential future
14 witnesses and that under 77(A)(iv), or do you say he interfered with
15 witnesses on the list because they even not being aware, they may have --
16 they may experience in the future intimidation, whatever, by persons who
17 have seen that list, and this is very serious because it affects all
18 potential witnesses for the future. That's the consequence of this
19 offence. Is that your position? Because then it's not interference with
20 future potential witnesses but with these witnesses, and then you explain,
21 perhaps for sentencing purposes, how important it is that this should not
23 I'm just trying to find out exactly what your case is.
24 MS. SUTHERLAND: We're saying that the accused can be found guilty
25 under 77(A)(iv) with interfering with witnesses for two reasons, because
1 of the interference on a personal level, and that may be as a consequence
2 of the breach of 77(A)(ii), but we say it also rises to interference with
3 witnesses under 77(A)(iv). So there's the first thing, it's a personal
4 interference, but then there's also the interference with the
5 administration of justice, because some of these witnesses aren't prepared
6 to cooperate with the ICTY in the future or with national courts. So it's
7 a two-pronged effect.
8 JUDGE ORIE: Yes. At the same time when I asked you whether the
9 witnesses should be aware, you said no, it's not necessary that they are
10 aware because they, even if not aware, they could have to face the
11 reactions by others who have seen that list.
12 MS. SUTHERLAND: Yes.
13 JUDGE ORIE: But that, of course, is a reasoning which could not
14 apply to the general category of future potential witnesses because their
15 name is not there. No one could go to them and say, "I know that you
16 testified before the Tribunal and, therefore, never do that again." They
17 are unidentified persons.
18 MS. SUTHERLAND: Yes, you're correct, Your Honour.
19 JUDGE ORIE: And still my question, therefore, is: Are you
20 talking about the consequence of the interference with identified
21 witnesses, that the reason why it should not be done is because it might
22 keep others off from ever offering or accepting to testify before this
23 Tribunal, or do you say, no 77(A)(iv), the offence there is committed in
24 relation to all those unknown future unidentified potential witnesses?
25 MS. SUTHERLAND: Sorry. One moment, Your Honour.
1 JUDGE ORIE: Yes. Put your microphone off if you consult, please.
2 [Prosecution counsel confer]
3 MS. SUTHERLAND: Your Honour, it's our position that 77(A)(iv)
4 captures both, and it's not inconsistent, the position that you just put.
5 You can have interference with specific witnesses, but you can also have
6 interference with potential witnesses.
7 JUDGE ORIE: That would still fall under 77(A)(iv) and not just be
8 covered by the heading of 77(A).
9 MS. SUTHERLAND: No. That can be covered by 77(A), interference
10 with the administration of justice.
11 JUDGE ORIE: Yes, but also covered by (A)(iv)?
12 MS. SUTHERLAND: Yes.
13 JUDGE ORIE: Both? Okay. That's at least a clear answer.
14 Then, as I said before --
15 MS. SUTHERLAND: Moving on to the other matters, Your Honour.
16 JUDGE ORIE: Yes.
17 MS. SUTHERLAND: If I can respond to a couple of the matters that
18 the Defence raised --
19 JUDGE ORIE: Yes, although --
20 MS. SUTHERLAND: -- in relation to the Prosecution can make some
21 stipulations, Your Honour.
22 JUDGE ORIE: Yes, but what I tried to explore is what is agreed,
23 although not giving it, as usual, in a list specifying exactly, but the
24 areas, to see where there seems to be agreement between the parties and
25 the areas where there seems to be dispute among the parties.
1 If you want to say something about it, please proceed. If
2 there's -- but I with like to avoid at this moment to start a debate on
3 what is true and what is not true. I just wanted to explore more what we
4 should focus on when hearing the case or for you when presenting the
5 case. But if you'd like to make a few comments, please do so.
6 MS. SUTHERLAND: Your Honour, it's the Prosecution's position, the
7 reason why we put "on or about the 7th of July, 2006," was taken from the
8 HINA article, where the accused said himself that he -- on the 2nd of
9 August, that he published the information three weeks ago --
10 JUDGE ORIE: Yes, I think that --
11 MS. SUTHERLAND: So --
12 JUDGE ORIE: -- I would say that's matter of evidence. It's
13 clearly a matter of evidence. You put in the indictment "on or about the
14 7th." We see that that's a matter in dispute, so we'll hear in the
15 evidence why you think it was on the 7th or --
16 MS. SUTHERLAND: Your Honour, we are happy to stipulate that it
17 was published on the web site. If the accused stipulates that he did, in
18 fact, publish the witness list and the three articles on
19 www.domagojmargetic.com web site, we can stipulate that it wasn't
20 published -- that it was published after the 11th of July, 2006. That's
21 not --
22 JUDGE ORIE: Yes, okay.
23 MS. SUTHERLAND: That's not an issue for us.
24 JUDGE ORIE: So you do not insist on the 7th --
25 MS. SUTHERLAND: No.
1 JUDGE ORIE: -- so we could focus the case on what the liability
2 is of this accused if he published this on or after the 11th of July.
3 MS. SUTHERLAND: Yes, Your Honour.
4 JUDGE ORIE: Okay. That's --
5 MS. SUTHERLAND: Secondly --
6 JUDGE ORIE: -- certainly clarified.
7 MS. SUTHERLAND: In relation to the ownership, it's our view that
8 ownership is irrelevant. We are prepared to stipulate, in order to narrow
9 the issues, that Domagoj Margetic was not the registered owner of the web
10 site, but we don't concede that at the time he did not have the capability
11 to upload or download and/or pass information. But we do stipulate to the
12 fact that at the time he published the witness list and the articles he
13 wasn't the registered owner.
14 JUDGE ORIE: Yes. So we have to understand the indictment where
15 it says his web site as being the web site --
16 MS. SUTHERLAND: The web site --
17 JUDGE ORIE: -- where he could put articles on and take them off.
18 Is that what you --
19 MS. SUTHERLAND: Or pass information to persons to put information
21 JUDGE ORIE: Yes. On or from.
22 MS. SUTHERLAND: Yes.
23 JUDGE ORIE: Yes.
24 Mr. Miljevic, we don't have to -- I think, to pay a lot of
25 attention to possession or ownership of the web site since we now
1 understand that it's not the position of the Prosecution that Mr. Margetic
2 was the registered owner or the registered possessor of the web site, and
3 that -- yes?
4 MS. SUTHERLAND: Yes, Your Honour. If I can just add, the
5 reason -- using the word "his," as Your Honour rightly pointed out, the
6 Defence, in fact, on page 3 of the pre-trial brief that they filed
7 yesterday -- the translation yesterday, talks about his web site, and it
8 was simply talking about his web site because it's
9 www.domagojmargetic.com. But, in fact, it can read "the web site."
10 JUDGE ORIE: Yes. I now then talk about my street, and I'm not
11 the owner of my street, I can tell you for sure. That issue seems to be
12 clarified sufficiently as well. Any other matter, Ms. Sutherland,
13 where --
14 MS. SUTHERLAND: Your Honour, does the Chamber want to hear me in
15 relation to the fact that the Defence say that the witness list was public
16 between X date and Y date?
17 JUDGE ORIE: Well, I expect that the Defence will say -- that the
18 Defence will bring evidence or will say something about the public
19 character of the information during the period the 11th of July until the
20 22nd of August? Legal argument about it, we could leave that until after
21 we are informed, because until now it is the Defence who says that it was
22 public and we'll -- if the parties do not present any evidence on that,
23 and if it is such a key for the Defence case, then the Chamber might even
24 be interested in getting full information. But, of course, I expect the
25 Defence to bring evidence.
1 Yes, Mr. Miljevic.
2 But if the parties could agree on that as well. If the parties
3 are in agreement that on from a certain moment the list was in -- was a
4 public document --
5 MS. SUTHERLAND: No, Your Honour. It's the Prosecution's position
6 that it's always been confidential.
7 JUDGE ORIE: It's always been confidential, and it's the position
8 of the Defence that it was public. So, therefore, the parties agree that
9 until the 7th it was protected material, and the Prosecution takes the
10 position that also after the 11th, it still was protected material.
11 MS. SUTHERLAND: Yes.
12 JUDGE ORIE: It might be good to inform the Chamber about why the
13 Prosecution takes that position since, most likely, this will be
14 challenged by the Defence. So paying proper attention to that might be
15 not a bad idea.
16 Now, or -- well, if you can make any stipulations on the matter so
17 we have at least a factual basis to proceed on, that would be a good idea
18 as well.
19 MS. SUTHERLAND: No. It's our position that the document was
20 confidential, has always been confidential.
21 JUDGE ORIE: Yes, I do understand. But we also noticed that on
22 the 11th of July as we heard from Mr. Miljevic there may have happened
23 something in the Jovic case. Whether or not this affects the
24 confidentiality, perhaps the parties could agree on what happened without
25 agreeing on the legal consequences of that.
1 MS. SUTHERLAND: Excuse me, Your Honour.
2 JUDGE ORIE: Yes.
3 [Prosecution counsel confer]
4 MS. SUTHERLAND: Your Honour, the document in question was
5 admitted in that case on the 3rd of July, so we are at a loss to know what
6 the relevance of the 11th of July is in any event to that exhibit.
7 JUDGE ORIE: Yes. Was it tendered or was it admitted on the 3rd
8 of July?
9 MS. SUTHERLAND: It was admitted pursuant to -- as I understand
10 it, pursuant to a decision of the 3rd of July.
11 JUDGE ORIE: Yes. Without at this moment making an issue out of
12 the 3rd of July or the 11th of July, it was admitted as a -- is it the
13 Prosecution's position, do you stipulate that it was admitted under seal
14 or not under seal?
15 MS. SUTHERLAND: It's our position that it was admitted under seal
16 and that it's the registry court records that have caused the confusion in
17 this case.
18 JUDGE ORIE: Yes. Then I take it we'll hear some evidence on
19 that, or -- I think, as a matter of fact, we are coming too close to
20 evidential matters where the stipulations are not perfectly clear. Of
21 course, if you would like to make any further stipulations at a later
22 point you may always do that, Ms. Sutherland.
23 MS. SUTHERLAND: Thank you, Your Honour. Your Honour is going to
24 make a ruling or hear submissions from the Defence in relation to the
25 Rule 89(C) motion that we filed to seek the Rule 65 ter exhibits?
1 JUDGE ORIE: Yes. We have not heard the -- we have not heard yet
2 the position of the Defence on that. It's the admission of -- of
3 documentary material, yes.
4 MS. SUTHERLAND: Yes, Your Honour.
5 JUDGE ORIE: Mr. Miljevic.
6 MR. MILJEVIC: [Interpretation] Your Honour, I shall avail myself
7 of this particular opportunity to say something about the order of these
9 On the 31st of October of this year, a court order was issued with
10 regard to the start of trial. Already then these deadlines could not have
11 been met from 65 ter (E) or from 65 ter (F), because from the day the
12 court order was issued, the Scheduling Order regarding this case, there
13 were only 29 days available to this day. Therefore, six weeks, three
14 weeks, and other time-limits envisaged in 65 ter (E) and 65 ter (F) could
15 not have been met.
16 I would like to say that the Scheduling Order was provided to the
17 Croatian Ministry of Justice on the 16th of November. I received
18 Ms. Del Ponte's submissions on the 24th of November. As for all the other
19 material, on the 25th or the 28th of November.
20 I think that now it would be a good opportunity if you were to
21 draw on your authority from Rule 127 to change the time-limits, at least
22 to ensure 126 bis; that is to say, the minimum requirement of 14 days.
23 I would now like to ask the Trial Chamber, taking into account
24 these facts, that from the day the Scheduling Order is issued regarding
25 the start of trial the 65 ter deadlines could not have been met, and as
1 for the trial -- for the brief issued, filed by the Prosecution seven days
2 elapsed and for other material even less.
3 I read all of this. There is quite a bit of scope for
4 stipulations between the two parties as we could see through the
5 proceedings today. However, my client knows nothing about that. I admit
6 that if that is the point of Rule 89, then I do hereby recognise that
7 I received from the OTP everything that they claim that they have
8 submitted to me, and there are certain cover sheets that I saw in
9 the Prosecution material.
10 I would like to take this opportunity, now that I have the floor
11 anyway, to say that the Prosecutor obviously stipulated the main thing
12 with the Defence; namely, she said that on the 2nd of August, my client
13 said to his interview in HINA that he published the said article three
14 weeks before that. We know that July has 31 days. Then at any rate,
15 there are two days in August. So these are the three weeks, which would
16 make it the 12th of July, and that is after the 11th of July. Now, why --
18 JUDGE ORIE: These are evidently matters not to be discussed at
19 this moment.
20 MR. MILJEVIC: [Interpretation] Yes, they are.
21 JUDGE ORIE: What I would like to know is, first of all, you said
22 that the time-limits were not kept, that -- well, let's not at this moment
23 discuss whether this was implicitly changed by a Scheduling Order, and
24 let's also not discuss at this very moment, unless you feel that there is
25 need to do so, whether in a contempt case all the usual time-limits would
1 apply automatically.
2 When you said that -- when you explained to us when you received
3 material and that there's one day missing of the 30-day period, you were
4 talking about the two-week period, does this prevent you from proceeding?
5 Do you say, "This is a problem which has consequences for me, for my
6 ability to defend the case today," or would we proceed?
7 MR. MILJEVIC: [Interpretation] Your Honour, as for this material,
8 I received all of it and I confirmed that. I even managed to read all of
9 it, although I received some of this material only the day before
10 yesterday, which can be proven. However, my client has no knowledge of
11 this. I think that indeed for the sake of the quality of the defence it
12 would be necessary to change some of the time-limits, and that the Defence
13 should state its positions regarding what the Prosecution said as early as
14 possible but, say, within 14 days or so.
15 JUDGE ORIE: Yes. Could I ask the Prosecution to what extent all
16 the material is still necessary in view of large agreement on facts today.
17 MS. SUTHERLAND: Your Honour, we can go through the material, the
18 evidence in the break and let Your Honours know exactly what we --
19 documents we still seek to have admitted.
20 JUDGE ORIE: Yes.
21 MS. SUTHERLAND: But they would certainly be all of the statements
22 or admissions by the accused.
23 JUDGE ORIE: Yes. I take it that that material is -- the accused
24 is aware of. I mean, documents he signed himself, he submitted, for
25 example. I would not easily accept that he would have to study them first
1 before taking a position in that respect.
2 MS. SUTHERLAND: The Defence has been in possession of the
3 supporting material since the 13th of October, and all of the Rule 65 ter
4 material which was disclosed on the 16th of November when we filed our
5 pre-trial brief.
6 What the Defence is now saying they only received on the 25th was
7 the statement, the witness statements, and we don't seek to have those
8 statements admitted because we're leading that evidence from the
9 witnesses, and that was disclosed on the 25th of November pursuant to the
10 Judges' -- the Trial Chamber's order. So as soon as we got the order we
11 disclosed it. But all the other material, which is relevant to the 89(C)
12 motion, was disclosed on the 13th of October to the accused himself,
13 because -- and then the Rule 65 ter stuff on the 16th of November.
14 JUDGE ORIE: I think it's time for a break. The Chamber would
15 like to --
16 MS. SUTHERLAND: Your Honour, just one moment. Before the break,
17 the issue of Mr. Osorio's evidence, are we able to get that sorted before
18 the break so that we can determine whether in fact his memorandum is going
19 to be admitted pursuant to the Defence agreement via the letter that we
20 got yesterday?
21 JUDGE ORIE: Mr. Miljevic, there was a -- now, I have to refer to
22 what happened yesterday during an informal meeting I had with the parties.
23 Unfortunately, it could not be a formal meeting since Defence counsel
24 arrived only relatively late yesterday, and we were talking about
25 practicalities for today's trial.
1 One of the issues raised there was an exchange of correspondence
2 between the Prosecution and Defence, the question being whether Mr. Osorio
3 should be called as a witness or whether admission of a statement given by
4 him would be acceptable for the Defence.
5 The Prosecution, as far as I understood yesterday, received a
6 letter from Mr. Miljevic stating that there was no need to call Mr. Osorio
7 as a witness.
8 Mr. Miljevic, does that include that you accept that the written
9 statement of Mr. Osorio would be admitted into evidence and that there's
10 no need to cross-examine Mr. Osorio on that statement?
11 MR. MILJEVIC: [Interpretation] Your Honours, that's what I said
12 informally yesterday, and I confirm it today, and I make things easier by
13 virtue of that fact. If that pertains to the document dated the 14th of
14 September, 2006, and that is the only document that I found that could
15 have anything to do with Mr. Osorio, as I wrote in my filing yesterday,
16 I'm absolutely not opposed to having that particular submission in
17 evidence and not to have Mr. Osorio called to testify. However, if it's
18 something else in addition to that, then I don't know. That's the only
19 document that I have.
20 JUDGE ORIE: We will verify this with Ms. Sutherland.
21 Is it the 14th of September?
22 MS. SUTHERLAND: Your Honour, it's the 11th of August, 2006.
23 JUDGE ORIE: Yes. Then we'll have a break anyhow, and the parties
24 are invited not only to review their own positions in relation to -- in
25 relation to what evidence still needs to be presented, but also to briefly
1 discuss, perhaps have an exchange on material, written material, by
2 Mr. Osorio. So there seems to be some conclusion about whether there's
3 only 14th of September material or also 11th of August, I think it was.
4 So would you please clarify that during the break. We will then give a
5 ruling after having been informed by the parties.
6 Perhaps for those reasons we should take a little bit longer
7 break, half an hour.
8 We adjourn until 11.00.
9 --- Recess taken at 10.30 a.m.
10 --- On resuming at 11.07 a.m.
11 JUDGE ORIE: Could I ask the parties whether the Osorio matter has
12 been discussed and resolved.
13 MS. SUTHERLAND: Yes, Your Honour, it has. The Defence have
14 agreed that Exhibit 21 on the Rule 65 ter list can be admitted.
15 JUDGE ORIE: Yes.
16 MS. SUTHERLAND: They have no objection to that.
17 JUDGE ORIE: Yes. I have the habit to -- to accept what one of
18 the parties says unless the other clearly disagrees. So if Ms. Sutherland
19 says that there's an agreement, then I take it there is.
20 That being clarified, then, could you please -- Ms. Sutherland,
21 could you -- could you please tell us what remains from the 89(C) motion.
22 The advantage of having this material in evidence is that we have an
23 overall agreement on most of the facts, I would say, apart from a few. Of
24 course in these documents, which are mainly documents of a rather
25 objective nature, at least many of them, would enable the Chamber to use
1 them in preparing a judgement, either in favour of the Prosecution or
2 perhaps the same documents in favour of the Defence.
3 When I say "objective documents," it is, for example, if we have
4 the text of what was exactly published, if there's no disagreement about
5 publication of a list or the text of an article, that if this reflects
6 this article it would be good to have in evidence because we did not go
7 into that much detail when I explored what the issues in dispute were.
9 MS. SUTHERLAND: Your Honour, perhaps if we can start with
10 Table A.
11 JUDGE ORIE: Yes, Table A.
12 MS. SUTHERLAND: And if the Defence has that in front of them,
13 too, then --
14 JUDGE ORIE: Yes. As a matter of fact, I'm looking at the motion.
15 You're looking at the table at this moment.
16 MS. SUTHERLAND: The table's attached to -- Tables A to D.
17 JUDGE ORIE: Yes. Yes. Table A. Yes. Perhaps you first tell us
18 what you do not need anymore, and then -- or I don't know whether you
19 discussed it already with Mr. Miljevic, and then we'll hear from
20 Mr. Miljevic what his position is.
21 MS. SUTHERLAND: Your Honour, Mr. -- The Defence were kind enough
22 to also agree to Rule 65 ter Exhibit 17 being admitted with no objection.
23 JUDGE ORIE: 17 is --
24 MS. SUTHERLAND: Is on --
25 JUDGE ORIE: If you briefly --
1 MS. SUTHERLAND: -- Table D.
2 JUDGE ORIE: Table D. 17. Let me just have a look. Was Table D
3 attached as well?
4 MS. SUTHERLAND: Yes.
5 JUDGE ORIE: Yes, this is 17. That's the Osorio 14th of
6 September, is that --
7 MS. SUTHERLAND: Yes. That was -- that was a cover note from
8 Mr. Osorio attaching the HINA news agency --
9 JUDGE ORIE: Yes.
10 MS. SUTHERLAND: -- letter which confirms the authenticity of --
11 JUDGE ORIE: The interviews.
12 MS. SUTHERLAND: -- the 2nd of August news bulletin.
13 JUDGE ORIE: Yes.
14 MS. SUTHERLAND: But if we go back to --
15 JUDGE ORIE: We go back to --
16 MS. SUTHERLAND: -- Table A we obviously need Exhibit 1, which is
17 the witness list that was published.
18 JUDGE ORIE: Any objection, Mr. Miljevic, to have it admitted not
19 having been introduced by any witness?
20 MR. MILJEVIC: [Interpretation] Your Honours, I have no objections
21 whatsoever, either in reference to Exhibit number 1 or the one under 17.
22 JUDGE ORIE: Yes, 1 and 17, therefore, can be --
23 [Trial Chamber confers]
24 JUDGE ORIE: So in the absence of any objection the Chamber will
25 admit -- and I'm now using the number, 65 ter number 1 and 17.
1 Then what else would you need?
2 MS. SUTHERLAND: We need Exhibit 4, Your Honour, which is the
3 package of all the orders that we allege have been breached.
4 JUDGE ORIE: Yes. Any objection from the Defence?
5 MR. MILJEVIC: [Interpretation] No, no objections.
6 JUDGE ORIE: Then 4 is admitted as well.
7 MS. SUTHERLAND: Exhibit 15, Your Honour, is the --
8 JUDGE ORIE: Exhibit 4 is the package of written and oral orders
9 giving protection to these witnesses.
10 MS. SUTHERLAND: Yes, Your Honour.
11 JUDGE ORIE: Yes. Then 15 --
12 MS. SUTHERLAND: Exhibit 15 is the protective measures order
13 issued by the Duty Judge on the 28th of July, the cease and desist order
14 to the accused. We -- we don't seek to have that admitted.
15 JUDGE ORIE: Yes.
16 MS. SUTHERLAND: That goes with Exhibit 16, which is on Table B,
17 which we also don't seek to have admitted.
18 JUDGE ORIE: So 15 and 16 you're not seeking admission. Yes.
19 MS. SUTHERLAND: Back to Table A. Number 22.
20 JUDGE ORIE: Yes.
21 MS. SUTHERLAND: We do want that admitted.
22 JUDGE ORIE: Yes. Any objection from the Defence? Mr. Miljevic,
23 it's the reply --
24 MR. MILJEVIC: [Interpretation] Yes, I've found it. I have no
25 objection to that being tendered into the file. This is a personal
1 document of Domagoj Margetic, being -- it being his personal document, we
2 are not going to challenge it. And it is dated the 9th of August.
3 JUDGE ORIE: Then that's admitted as well. I'll just read it for
4 the record what we actually admitted so that there could be no confusion
5 about that. It is Rule 65 ter Exhibit number 22, reply by accused Domagoj
6 Margetic to the order of the Prosecutor filed confidential and ex parte in
7 case IT-95-14-R in relation to the order for the immediate cessation of
8 violations of protective measures.
9 Yes, Ms. Sutherland.
10 MS. SUTHERLAND: Table B.
11 JUDGE ORIE: Table B.
12 MS. SUTHERLAND: Given that the Defence take issue with the fact
13 that the accused received the letter from the OTP warning him that the
14 material was covered by orders of non-disclosure, we do seek to admit
15 number 2.
16 JUDGE ORIE: Yes. Any -- Mr. Miljevic, any objection against
17 admission of number 2, which is the consignment report by TNT in relation
18 to material that was couriered to Domagoj Margetic? Any objection against
19 admission of that document?
20 MR. MILJEVIC: [Interpretation] No objection to it being tendered
21 into the file. But I think that something quite different emanates from
22 that document in contrast to what is described here in the exhibit.
23 JUDGE ORIE: Okay. That's fine. I not without reason did not in
24 the description read the last two lines as it was presented by the
25 Prosecution because those lines read, "Report confirms delivery of the
1 material on the 16th of May," and the person who signed for received, D,
2 is Domagoj Margetic. That's comment. We are now talking about the
3 document -- document as such is admitted into evidence. And whether it
4 says who signed it and whether the date is correct is another matter.
5 It's an evidentiary matter.
6 Yes. So 2 is admitted as well. I just read the description.
7 Ms. Sutherland.
8 MS. SUTHERLAND: And Exhibit 3 we seek to have admitted, which is
9 the cover letter from the OTP to Domagoj Margetic dated the 6th of April,
11 JUDGE ORIE: Any problem with that, Mr. Miljevic?
12 MR. MILJEVIC: [Interpretation] No objection to that document being
14 JUDGE ORIE: Then Rule 65 ter Exhibit number 3 [Realtime
15 transcript read in error "4"], cover letter from the OTP to Domagoj
16 Margetic dated April 6, 2006, is admitted into evidence.
17 Ms. Sutherland.
18 MS. SUTHERLAND: As I previously mentioned, Rule 65 ter Exhibit
19 number 16 we don't seek to tender.
20 JUDGE ORIE: Yes, that's out.
21 MS. SUTHERLAND: Turning to Table C. Rule 65 ter Exhibit number 5
22 is the HINA --
23 JUDGE ORIE: There is -- there's a mistake on the transcript. The
24 cover letter, the transcript says -- perhaps I made a mistake. It's
25 Rule 65 ter Exhibit number 4, but it is number 3. I might have misspoken,
1 but that doesn't matter.
2 MS. SUTHERLAND: So Exhibit number 5 is the HINA news agency news
3 brief bulletin of the 2nd of August, 2006, quoting an interview with
4 Mr. Margetic.
5 JUDGE ORIE: Mr. Miljevic, any objection? Since you did not
6 object against Mr. Osorio's letter, it would be logical --
7 MS. SUTHERLAND: Yes, number 5 and 17 go together, in our view,
8 Your Honour.
9 JUDGE ORIE: May I therefore take it there is no objection,
10 Mr. Miljevic, to 5 either?
11 MR. MILJEVIC: [Interpretation] No objection, Your Honour, because
12 these are in fact HINA's replies, and they are in conjunction with the
13 Osorio document.
14 JUDGE ORIE: Yes. Then, Ms. Sutherland.
15 MS. SUTHERLAND: Number 6, Your Honour, we do seek to tender.
16 That is the article --
17 JUDGE ORIE: Could we perhaps deal with 6, 10, and 11 together,
18 because these are all the three texts. Any objection against these texts
19 to be -- to be admitted into evidence without being introduced through a
20 witness, Mr. Miljevic? The first one the B/C/S article authored by
21 Domagoj Margetic published on this web site titled "List of secret Hague
22 Witnesses sent to me by Carla Del Ponte." I believe [indiscernible]
23 gives a bit of the text.
24 Any objection to that?
25 MR. MILJEVIC: [Interpretation] No.
1 JUDGE ORIE: [Previous translation continues] ... 10, printout of
2 the web site, 15th of July, 2006, authored by Domagoj Margetic, and then:
3 "Who were The Hague Prosecution's protected witnesses?" That's the
4 quote with a question mark.
5 Any objection against that?
6 MS. SUTHERLAND: Your Honour, in fact -- sorry.
7 JUDGE ORIE: Yes.
8 MS. SUTHERLAND: The description of the document, the article
9 actually comes from Domagoj Margetic's web site. That's the -- the --
10 JUDGE ORIE: Number 10?
11 MS. SUTHERLAND: Yes, we have it in both. We have it from both
12 web sites, but Exhibit number 10 comes from his web site.
13 JUDGE ORIE: Okay. Then we need another description.
14 Any objection against having the same text but as put on the --
15 MS. SUTHERLAND: His web site.
16 JUDGE ORIE: -- Margetic's web site -- yes, I'm hesitant to say
17 his web site. But his web site, as we now understand it to be.
18 Any objection Mr. Miljevic?
19 MR. MILJEVIC: [Interpretation] No objections even though that is
20 not his web site, but that is a matter of proving, but no objections to it
21 being admitted.
22 JUDGE ORIE: Then 11.
23 MS. SUTHERLAND: In relation to that exhibit, I would ask that we
24 don't read the title of the document because it actually lists the name of
25 the witness, the protected witness.
1 JUDGE ORIE: Oh, the next one, you'd say.
2 MS. SUTHERLAND: Yes, number 11.
3 JUDGE ORIE: Yes, yes, yes. Number 11 is a printout of a
4 web site, also 15th of July --
5 MS. SUTHERLAND: No, that's also from Margetic's web site, Your
7 JUDGE ORIE: So that here again the source, the
8 www.lijepanasadomovinahrvatska.com is wrong and should be the Domagoj
9 Margetic web site as cited before.
10 MS. SUTHERLAND: Number 12, Your Honour.
11 JUDGE ORIE: Yes. And the title is I'll not read it in full. Why
12 was --
13 MS. SUTHERLAND: No.
14 JUDGE ORIE: X.
15 MS. SUTHERLAND: Sorry. Yes.
16 JUDGE ORIE: Why was X a protected witness in The Hague. Yes?
17 MS. SUTHERLAND: Yes. Yes, Your Honour.
18 JUDGE ORIE: Yes. Yes, I do understand your concerns. No
19 objection. 11 therefore is admitted as well.
20 Please proceed.
21 MS. SUTHERLAND: Number 12 is the Google cache report for web site
22 www.011385.com re the Margetic article "List of secret witnesses" which in
23 fact has just been admitted as Exhibit 6, but this exhibit gives the full
24 text in B/C/S, because in Exhibit 6 the B/C/S version has been cut off
25 down one side.
1 JUDGE ORIE: Yes, I --
2 MS. SUTHERLAND: And it also shows that it was on this web site
3 www.011385.com. So we would seek to have that admitted to show the -- the
4 different web sites.
5 JUDGE ORIE: Yes. It doesn't say anything about ownership or
6 possession. No.
7 MS. SUTHERLAND: No.
8 JUDGE ORIE: Any objection, Mr. Miljevic?
9 MR. MILJEVIC: [Interpretation] None.
10 JUDGE ORIE: 12 is the Google cache report for web site
11 www.011385.com is admitted into evidence.
12 Ms. Sutherland.
13 MS. SUTHERLAND: Exhibit number 13 the print without of the web
14 site www.lijepanasadomovinahrvatska.com showing the -- the links -- the
15 two articles which are now Exhibits 10 and 11. So we seek to have that
16 document admitted.
17 JUDGE ORIE: Yes, it's more of an administrative nature.
18 Any objections, Mr. Miljevic?
19 MR. MILJEVIC: [Interpretation] No, Your Honour.
20 JUDGE ORIE: Yes. Next one.
21 MS. SUTHERLAND: Exhibit 18 is the Vecernji List newspaper article
22 dated the 4th of August, 2006, entitled "Prosecutor Akerson gave me the
23 secret list," and continues. We seek to have that admitted.
24 JUDGE ORIE: Yes. Any objection, Mr. Miljevic?
25 MR. MILJEVIC: [Interpretation] No.
1 JUDGE ORIE: 18 the Vecernji List newspaper article dated the 4th
2 of August is admitted into evidence.
3 Ms. Sutherland.
4 MS. SUTHERLAND: Exhibit number 25 is Domagoj Margetic's official
5 statement dated the 12th of September, 2006, published on the web site
6 www.croatianworldwideassociation.com. We seek to have that admitted.
7 JUDGE ORIE: Yes. Any objection, Mr. Miljevic? You're nodding
8 yes, but may --
9 MR. MILJEVIC: [Interpretation] No.
10 JUDGE ORIE: Then the Domagoj Margetic official statement dated
11 the 12th of September as published on the web site just referred to by
12 Ms. Sutherland is admitted into evidence.
13 Ms. Sutherland.
14 MS. SUTHERLAND: Turning now to Table D.
15 JUDGE ORIE: Yes.
16 MS. SUTHERLAND: We've discussed Exhibit 17.
17 JUDGE ORIE: Yes.
18 MS. SUTHERLAND: That's admitted. Number 19 are the Zagreb County
19 Court minutes of the serving of the order.
20 JUDGE ORIE: Do we need that at this moment?
21 MS. SUTHERLAND: Yes, Your Honour.
22 JUDGE ORIE: Yes.
23 MS. SUTHERLAND: We seek to have that admitted.
24 JUDGE ORIE: Any objection, Mr. Miljevic?
25 MR. MILJEVIC: [Interpretation] Number 19? No. No objections.
1 JUDGE ORIE: Then the Zagreb County Court, minutes of serving an
2 order, is admitted into evidence.
3 Number 20.
4 MS. SUTHERLAND: Exhibit 20 is the record of interrogation of the
5 accused to the Zagreb County Court. We seek to have that admitted.
6 JUDGE ORIE: Yes. That court document from Croatia, Mr. Miljevic,
7 any objection?
8 MR. MILJEVIC: [Interpretation] No, no objection.
9 JUDGE ORIE: Also admitted into evidence.
10 Ms. Sutherland.
11 MS. SUTHERLAND: And Exhibit 23, the handwritten declaration by
12 Mr. Margetic re the disclosure of confidential materials to the public.
13 We seek to have that admitted.
14 JUDGE ORIE: Any objection.
15 MS. SUTHERLAND: Dated the 20th of August, 2006.
16 JUDGE ORIE: Yes. Mr. Miljevic, any objection against that?
17 MR. MILJEVIC: [Interpretation] No.
18 JUDGE ORIE: Then we have dealt with all of them, Ms. Sutherland,
19 if I'm not mistaken, or -- no.
20 MR. MILJEVIC: [Interpretation] Your Honour, by your leave I would
21 like to say something.
22 JUDGE ORIE: Yes. Please do so.
23 MR. MILJEVIC: [Interpretation] We have now dealt with all the
24 exhibits on the OTP's list. However, in the documents which were
25 submitted to me by the OTP, we also have the press conference of this
1 Tribunal of the 23rd of August, 2006. After that, we have a document list
2 of cases and decisions rendered by this Tribunal in the different cases,
3 and on that list under the date 22nd of August we have Blaskic and the
4 Kordic and Cerkez contempt, and the decision -- this is the exhibit which
5 I was given by the OTP, and I should like that document to also be
6 admitted into the file because it was submitted by them to me.
7 Apart from that, on the list of exhibits which have -- with which
8 we have just dealt --
9 JUDGE ORIE: Mr. Miljevic, if I may just interfere. If documents
10 are disclosed by the Prosecution to you and if they're not tendered into
11 evidence, I don't know whether at any further stage the Prosecution will
12 seek admission of these documents, if it has not sought admission of these
13 documents, it's entirely up to you while presenting the Defence case
14 whether or not you want to present these documents, fortunately already
15 they're in two languages, to be admitted into evidence, but I don't think
16 that we should do that before even the Prosecution had started presenting
17 its case.
18 MS. SUTHERLAND: Your Honour, we haven't disclosed this material
19 to the Defence.
20 JUDGE ORIE: You haven't disclosed --
21 MS. SUTHERLAND: No.
22 JUDGE ORIE: Well, we will see that. But if there are any
23 documents -- that was one of the issues we discussed yesterday evening on
24 a very practical level whether the Defence would seek any documentary
25 evidence to be admitted. It -- of course then should be presented in at
1 least one of the official languages of this court.
2 Let's keep it to that. You'll have an opportunity later to
3 present whatever evidence the Defence would like to present.
4 [Trial Chamber confers]
5 JUDGE ORIE: The Chamber, flexible as always, changes the order a
6 little bit. We'd like now to go into private session.
7 [Private session]
11 Pages 68-78 redacted. Private session.
23 [Open session]
24 THE REGISTRAR: We are in open session, Your Honours.
25 JUDGE ORIE: Ms. Sutherland, the first witness the Prosecution
1 would like to call is that a protected witness or is that an unprotected
3 MS. SUTHERLAND: No, Your Honour. The Prosecution now calls
4 Mirjana Oklobdzija, and Mr. Cannata will put the questions pursuant to
5 Rule 92 ter.
6 JUDGE ORIE: You are presenting this evidence under Rule 92 ter.
7 Mr. Miljevic, you are aware of what Rule 92 ter means in this
8 respect. That is, that the witness will not be examined but that the
9 written statement will be admitted into evidence, that the witness is
10 present in court and that you have an opportunity to cross-examine the
12 The first witness being, Ms. Sutherland, you said Ms. Mirjana
13 Oklobdzija. Yes.
14 Madam Usher, would you please escort the witness into the
16 MS. SUTHERLAND: Your Honour, while we're waiting for the witness
17 to come in.
18 JUDGE ORIE: Yes.
19 MS. SUTHERLAND: Given the admission by the Defence that
20 Mr. Osorio's memorandum of the 11th of August, 2006, will be admitted with
21 no objection, we will not be calling him. Can the registrar or the usher
22 get a message to the witnesses MC1 and MC2 that they can return to -- to
23 the hotel and that the office -- someone from the Office of the Prosecutor
24 will be speaking with them as soon as this -- we finish today.
25 JUDGE ORIE: Yes, because I can imagine that it needs some
1 explanation for the witnesses why they were not called.
2 [The witness entered court]
3 JUDGE ORIE: Madam Registrar, I take it you will take care of
5 WITNESS: MIRJANA OKLOBDZIJA
6 [Witness answered through interpreter]
7 JUDGE ORIE: Good morning. I may have some difficulties in
8 pronouncing your name properly. Perhaps you could give us your name,
9 although it's usually the first question put by the calling party.
10 THE WITNESS: Okay.
11 JUDGE ORIE: Your name is?
12 THE WITNESS: Mirjana Oklobdzija.
13 JUDGE ORIE: Oklobdzija. Yes, I'll try to do my best.
14 Before you give evidence in this court, and you are called as a
15 witness by the Prosecution, the Rules of Procedure and Evidence require
16 you to give a solemn declaration that you'll speak the truth, the whole
17 truth, and nothing but the truth. May I invite you to make that solemn
18 declaration. The text will now be handed out to you by Madam Usher.
19 THE WITNESS: [Interpretation] I solemnly declare that I will speak
20 the truth, the whole truth, and nothing but the truth.
21 JUDGE ORIE: Thank you. Please be seated, Ms. Oklobdzija.
22 Ms. Sutherland, I take it that the witness is aware of the
23 procedure under Rule 92 ter or -- that's you.
24 MR. CANNATA: Yes, Your Honour.
25 JUDGE ORIE: Then please proceed.
1 MR. CANNATA: Thank you, Your Honours.
2 The witness is a research officer with the leadership research
3 team of the Office of the Prosecutor. The witness's responsibilities at
4 the Tribunal include analysis of public documents in order to detect any
5 information concerning Tribunal's past, current, or pending cases and
6 search for relevant data.
7 As part of her duties, on 26th July, 2006, the witness checked the
8 web site www.domagojmargetic.com and noticed there a publication
9 entitled "Exclusive: List of confidential witnesses in The Hague given to
10 me by an assistant of Carla Del Ponte." Attached to the above-mentioned
11 article the witness found on the same web site the path, which is
12 www.domagojmargetic.com/media/POPISTAJNIHSVJEDOKA.pdf, which led to a
13 separate document entitled POPISTAJNIHSVJEDOKA, which is to be translated
14 as "list of secret witnesses."
15 The witness opened this document and observed that it appeared to
16 be a list of the names of witnesses in the Blaskic case explicitly marked
17 as confidential. The list was accessible via the aforementioned web page
18 path. The witness informed the OTP staff working in the Blaskic review
19 case about the article and the attached list and handed over printouts of
20 the B/C/S version of the article as well as the list of witnesses
21 published on the web site.
22 And that completes the summary, Your Honours.
23 JUDGE ORIE: Well, to call it a summary it's almost a complete
24 reading of it. Next time you're invited to make it a summary, because one
25 of the reasons, it's just to inform the public because the document as
1 such is known to the parties.
2 For the Defence now to cross-examine the witness.
3 MR. CANNATA: Your Honour.
4 JUDGE ORIE: Do you have any additional questions?
5 MR. CANNATA: By your leave, I would just ask one question -- a
6 couple of questions to the witness.
7 JUDGE ORIE: Yes.
8 MR. CANNATA: Because it goes without saying that the Prosecution
9 seek to tender the Exhibit 7 of the Prosecution Rule 65 ter exhibit list,
10 which is the witness statement into exhibit. That is the preliminary --
11 JUDGE ORIE: Witness statement dated the 29th of August, 2006.
12 Yes, please proceed.
13 MR. CANNATA: And before we do that, we actually, for the record,
14 would like to comply with prescription of Rule 92 ter by asking the witness
15 to authenticate the witness [sic]. So by your leave, I would like to ask
16 a few questions to the witness.
17 JUDGE ORIE: Yes, please do so.
18 MR. CANNATA: Thank you.
19 Examination by Mr. Cannata:
20 Q. Good morning, Witness.
21 A. Good morning.
22 Q. Please state your full name and for the record spell it?
23 A. My full name is Mirjana Oklobdzija.
24 Q. Did you provide a statement to the Office of the Prosecutor on the
25 29th of August, 2006?
1 A. Yes.
2 Q. Have you had an opportunity to review this statement during our
3 proofing session on the 28th of November, 2006?
4 A. Yes.
5 Q. Is this statement true and accurate to the best of your knowledge
6 and belief?
7 A. Absolutely.
8 Q. Do you attest that the statement accurately reflects your
9 declaration and what you would say if you were asked the same questions
10 again today?
11 A. Yes.
12 MR. CANNATA: Your Honours, as anticipated before, I seek to
13 tender the -- into evidence Exhibit 7 of the Prosecution Rule 65 ter
14 exhibit list, which is the witness statement.
15 JUDGE ORIE: Any objection, Mr. Miljevic, against submission of
16 the witness statement?
17 MR. CANNATA: I have copies for --
18 THE INTERPRETER: Microphone, please.
19 JUDGE ORIE: You will have --
20 MR. MILJEVIC: [Interpretation] No objection.
21 JUDGE ORIE: Then you will have an opportunity to -- yes.
22 MR. CANNATA: Once again, by your leave, Your Honour, I will just
23 put two questions for the sake of clarification and then I will be done
24 with the witness.
25 JUDGE ORIE: Okay.
1 MR. CANNATA: May I please ask the usher to show the witness
2 Exhibit 1 of the Prosecution Rule 65 exhibit list.
3 Q. Witness, do you recognise this document?
4 A. Yes, that is the list.
5 Q. Could you expand on this answer?
6 A. Yes. This is the list which was -- back to -- which was attached
7 to the article which I found on 26th of July on the web page
9 Q. Very well. Thank you.
10 MR. CANNATA: I move on to Exhibit 6, with the kind assistance of
11 the usher. Would you please show the witness Exhibit 6 of the Prosecution
12 65 exhibit list.
13 Q. Witness, do you recognise this document?
14 A. Yeah. This document is translation of the original article which
15 I found on the 26th of July on the web page in B/C/S, the original.
16 Q. Could I please ask you to turn to the original article in B/C/S,
17 which is the document --
18 A. Okay.
19 Q. Yes, there it is.
20 A. Yes, that's the original article.
21 Q. In B/C/S, Exhibit 6.
22 A. Yes.
23 Q. Now I ask you again the question: Do you recognise that document?
24 A. Yes, I do.
25 Q. Can you tell the Court, what document is this?
1 A. This is -- shall I read the title in --
2 Q. As you --
3 A. Croat? [Interpretation] "Exclusive: List of confidential Hague
4 witnesses given to me by Carla Del Ponte's assistant."
5 Q. Have you seen this before?
6 A. [In English] Yes. I saw it on the 26th [Realtime transcript read
7 in error "267th"] of July.
8 Q. Where?
9 A. On the web page www.domagojmargetic.com.
10 Q. Thank you, Witness.
11 A. You're welcome.
12 MR. CANNATA: Your Honour, I have no further questions for the
14 JUDGE ORIE: You have no further questions.
15 I think both the documents are already admitted into evidence
16 under Rule 89(C), so, therefore, we don't have to take any further
17 decisions on that it.
18 Mr. Miljevic, you have an opportunity to cross-examine the
20 Witness -- yes.
21 JUDGE MOLOTO: I notice the date, it's supposed to be 26th of July
22 but it says "267th" of July. We may never know if it was 26th or 27th.
23 JUDGE ORIE: That's now on the record. That saves us at least
24 listening to a lot of tapes.
25 JUDGE MOLOTO: It was the 26th of July.
1 Perhaps for the witness: You said it was the 26th.
2 THE WITNESS: The 26th of July, yes.
3 JUDGE ORIE: Then, Mr. Miljevic, you may cross-examine the
5 Witness, Mr. Miljevic is Defence counsel for Mr. Margetic.
6 Mr. Miljevic, please proceed.
7 Cross-examination by Mr. Miljevic:
8 Q. [Interpretation] Madam Witness, as far as I understood, at your
9 workplace in the OTP of the International Tribunal, you examine
10 documentation and you analyse documents referring to cases before the
11 Tribunal; is that correct?
12 A. Yes.
13 Q. Before the 26th of July, 2006, did you have occasion to examine
14 what referred to the internet page of Domagoj Margetic?
15 A. [In English] I was looking at that web page on a regular basis,
16 which doesn't mean daily but regular, because Mr. Margetic was accused
17 before this Tribunal before. But it wasn't on a daily basis. Yes, from
18 time to time I was looking at that web page.
19 Q. That is exactly why I asked. Can you be more specific? When did
20 you start to regularly monitor his web page?
21 A. [Interpretation] I cannot give you the exact date.
22 Q. Approximately.
23 A. Several months before that, when Mr. Margetic had problems with
24 this Tribunal on account of his first disclosure, publication of the
25 testimonies of a protected witness in the Blaskic case.
1 Q. You said that this was not a daily thing but a regular matter.
2 Can you say something in between? What would "regularly" imply and not on
3 a daily basis?
4 A. Well, at a time when someone is already before a tribunal or is
5 scheduled to appear before a tribunal, then it can be also on a daily
6 basis. In the case of Mr. Margetic, who no longer was indicted by our
7 Tribunal, that was no longer on a regular basis because we thought that
8 that problem had been overcome. However, as it was still relatively
9 recent, I looked at it every couple of weeks or 10 days; namely, examined
10 his web page on that basis.
11 Q. Thank you. I have no further questions.
12 JUDGE ORIE: Thank you, Mr. Miljevic.
13 Is there any need to re-examine the witness?
14 MR. CANNATA: No. No questions.
15 JUDGE ORIE: Then I'd like to thank you very much for coming,
16 Ms. Oklobdzija.
17 THE WITNESS: Oklobdzija.
18 JUDGE ORIE: Yes, Oklobdzija. I'm learning, slowly. I'd like to
19 thank you very much for coming in to answer questions of the parties. I
20 first have to verify whether the Bench has any further questions. I
21 assumed we would not have, but now that's verified as well. Thank you
22 very much for coming.
23 THE WITNESS: You're welcome.
24 JUDGE ORIE: Madam Usher, would you please escort the witness out
25 of the courtroom.
1 [The witness withdrew]
2 JUDGE ORIE: Your next witness, Ms. Sutherland, would be?
3 MS. SUTHERLAND: Your Honour, the Prosecution calls Carry Spork.
4 JUDGE ORIE: Yes. Madam Usher may not be aware that ...
5 A summary would really do. The purpose of it is that the public
6 is at least aware when listening to the cross-examination of the witness
7 what is the core of the statement that is at that moment in evidence.
8 MR. CANNATA: Thank you, Your Honour.
9 MS. SUTHERLAND: Your Honour, the Prosecution intends calling
10 Mr. Spork viva voce as set out in the Rule 65 ter witness list.
11 JUDGE ORIE: Yes.
12 [The witness entered court]
13 JUDGE ORIE: And time you would need approximately would be?
14 MS. SUTHERLAND: I think 15 minutes, Your Honour.
15 JUDGE ORIE: Yes. Please.
16 WITNESS: CARRY SPORK
17 JUDGE ORIE: Mr. Spork -- at least I take it you are Mr. Spork.
18 Before you give evidence in this court, the Rules of Procedure and
19 Evidence require you to make a solemn declaration that you speak the
20 truth, the whole truth and nothing but truth. The text is now handed out
21 now by Madam Usher, may invite you to make the declaration.
22 THE WITNESS: I solemnly declare that I will speak the truth, the
23 whole truth, and nothing but the truth.
24 JUDGE ORIE: Thank you please be seated. You'll first be examined
25 by Ms. Sutherland, counsel of the Prosecution.
1 Examination by Ms. Sutherland:
2 Q. Mr. Spork, you were born in Holland on the 6th of January, 1958?
3 A. That's correct, ma'am.
4 Q. After completing secondary school, you joined the Dutch military?
5 A. That's correct.
6 Q. And in 1979, you joined the Dutch police and until 1995 worked as
7 an investigator on serious crimes, including murders, narcotics, and a
8 kidnapping case?
9 A. And that's correct too.
10 JUDGE ORIE: Ms. Sutherland, should we not first, before we know
11 when he's born, know who is he?
12 MS. SUTHERLAND: Oh, I'm sorry, Your Honour.
13 Q. Mr. Spork, can you state your name for the record.
14 A. My name is Carry Spork.
15 Q. In March 1996, you were seconded by the Dutch government to the
16 Office of the Prosecutor of the ICTY, becoming a UN staff member in 1998?
17 A. That's correct.
18 Q. Besides a six-month leave of absence to work in the UN Office of
19 Internal Oversight in the Congo from October 2005 until April 2006, from
20 1996 until the present you have been investigating crimes committed in the
21 Herceg-Bosna area of Bosnia and Herzegovina?
22 A. Bosnia and Herzegovina and Herceg-Bosna both.
23 Q. As part of your duties, you were also tasked to investigate
24 matters pertaining to the accused in this case?
25 A. Correct.
1 Q. What and when were you tasked to do in this regard?
2 A. Initially I was tasked to look at the internet site of Mr. Domagoj
3 Margetic, which was known as www.domagojmargetic.com, and the purpose of
4 that was to establish the web host of that internet site in order to see
5 what possibilities there were to close down the internet site.
6 Q. What else were you tasked to do in relation to the -- the web
8 A. Besides the web hosts, I was looking on the web page to see what
9 kind of information was revealed on the web site and in addition if there
10 were any linkages to the web site from other web sites.
11 Q. Can you tell the Court which web sites you viewed?
12 A. I initially reviewed the Domagoj Margetic web site. Then via
13 Google I searched for leads to other web sites and I ended up with three
14 additional web sites which had a direct linkage to the Domagoj Margetic
15 web site. The first one was www.011385.com. The second web site was
16 www.lijepanasadomovinahrvatska.com. And the third web site was
17 www.hrvatska-hrvatom.com. And -- and these three -- the last three web
18 sites that are mentioned all had a direct linkage to the Domagoj Margetic
19 web site.
20 Q. Did you open any documents on -- any documents on these web sites?
21 A. The first document I opened was a list of witnesses that was
22 revealed on the Domagoj Margetic web site, and once I went to the other
23 web sites it was possible via these web sites to get direct linkage to the
24 Domagoj Margetic web site on which you could see these lists, and in
25 addition on www.011385.com, as well as www.lijepanasadomovinahrvatska.com
1 I found two articles that also had a linkage to the Domagoj Margetic
2 web sites but besides that they contained a text, actually some kind of a
3 publication, that was done by Mr. Domagoj Margetic. That's how it looked
4 at least.
5 MS. SUTHERLAND: Could the witness be shown Exhibit 1, please.
6 Q. Do you recognise that document?
7 A. Yes. This is the documents that I saw on the Domagoj Margetic
8 web site and which I actually printed a copy of.
9 Q. What was the date that you saw it on that web site?
10 A. On the 31st of July, 2006.
11 MS. SUTHERLAND: Could the witness be shown Exhibit 10.
12 Q. Do you recognise that document?
13 A. Yes, ma'am. This is one of the articles I was referring to which
14 was published on the two web sites I mentioned before. So the 011385 as
15 well as the www.lijepanasadomovinahrvatska.com web site. To make it easy
16 let's call it Lijepa web site.
17 And in addition, there was a heading -- this article had a heading
18 on the initial web page, web site, and you could -- there was a reference
19 that said "text" and if you would double-click on text the whole
20 publication would be -- you would be able to read the whole publication.
21 In addition, it made a reference, and as I -- as far as I remember it said
22 15th of July, 2006, Domagoj Margetic, and via that you could double-click
23 on that web site, get back to the original web site, which was Domagoj
24 Margetic, where you could also find this article.
25 MS. SUTHERLAND: Could the witness be shown Exhibit 13.
1 Q. Do you recognise that document?
2 A. This is the -- the second article that I was referring to.
3 JUDGE ORIE: In order to -- we have not earlier dealt with whether
4 or not material was admitted under seal or not. Certainly 13 would be
5 something to be admitted under seal.
6 MS. SUTHERLAND: Yes, Your Honour.
7 JUDGE ORIE: Would you please review your list of documents
8 whether there's any of the other documents before coming into the public
9 record whether they need to be admitted under seal.
10 MS. SUTHERLAND: Yes, Your Honour.
11 JUDGE ORIE: It might well be that many of them are.
12 MS. SUTHERLAND: In the -- in the table to Rule 65 ter list there
13 was a final column saying confidential or not confidential, and we
14 ticked -- there was either yes or no there, but we will be very clear in
15 what we --
16 JUDGE ORIE: My request is that admission should be only in
17 accordance with what you indicated there.
18 Would there be any problem with that, Mr. Miljevic, since we are
19 now looking at some of these documents? All confidential -- all documents
20 qualified as confidential by the Prosecution to be admitted under seal not
21 as public documents.
22 MR. MILJEVIC: [Interpretation] Quite okay.
23 THE INTERPRETER: As far as the interpreter could hear.
24 JUDGE ORIE: Then the decisions on admission are all in accordance
25 with the confidentiality note in the 65 ter list.
1 Please proceed.
2 MS. SUTHERLAND: Thank you, Your Honour. And we will double-check
3 the list to make sure that there are no other documents which are required
4 to be put under seal.
5 JUDGE ORIE: In order to avoid whatever misunderstanding, if
6 described as confidential, that means admission under seal. Yes. Please
8 I noticed that, to some extent, we are already a bit repetitious,
9 also in view of the stipulations made today by the parties. Please
11 MS. SUTHERLAND:
12 Q. Mr. Spork, can you look at the B/C/S version of Exhibit 13.
13 A. Yes, ma'am.
14 Q. Do we see there what you were referring to earlier in your
15 evidence about the 15th of July, 2006?
16 A. That's correct. It's almost -- it's the third paragraph, which
17 says, "15th Srpnja 06 Domagoj Margetic," and then the text, and then the
18 other paragraph, too.
19 Q. Thank you. Did you subsequently check these web sites again; if,
20 so, what did you observe?
21 A. I checked the web site again on the 4th of August, 2006, and I saw
22 on both web sites that these articles were still there. And I could open
23 the articles and read the articles -- still read the articles. But when I
24 tried to open -- to go to the Domagoj Margetic web site, the hyperlink --
25 it appeared that the web host had temporarily, or at least closed down the
1 web page, so I could not open that any more from these two -- from this --
2 these two web sites.
3 Q. And the two web sites you're referring to, so that the record is
5 A. That's www.011385.com and www.lijepanasadomovinahrvatska.com.
6 Q. I turn now to another topic. Did you have contact any of the
7 witnesses whose identities had been disclosed by the accused; and, if so,
9 A. I had contact with these witnesses twice, at least three of the
10 witnesses twice; the first time, on the 8th of September, 2006, and the
11 second time, on the 19th and 20th of September, 2006, respectively.
12 Q. Did you take any statements from these witness?
13 A. During my first contact on the 8th of September, I discussed with
14 them their feelings, about how they will felt that their names had been
15 disclosed or published. And then on the 19th and 20th of September, 2006,
16 I met the people in person and I took statements from them.
17 Q. Can you identify these witnesses by referring to their pseudonyms?
18 A. You mean the current pseudonyms or the pseudonyms before?
19 Q. The pseudonyms they've been given in this case.
20 A. That's MC1, MC2, and MC3.
21 JUDGE MOLOTO: May I just interrupt your questioning. I just want
22 to find out from Mr. Spork, you're saying that on the 19th and 20th, you
23 met them in person. Had you not met them in person on the 8th?
24 THE WITNESS: On the 8th I called them in order to see how they
25 felt, and since I was on a mission in Bosnia-Herzegovina on the 19th of
1 September, it was decided that I would meet them in person and take a
2 statement from them.
3 JUDGE MOLOTO: Thank you very much. You may proceed.
4 MS. SUTHERLAND:
5 Q. And the reason why you took the statements from them at that time,
6 on the 19th and 20th of November?
7 A. Initially the statement was taken from them by one of my
8 colleagues on, I think, the 15th of November, and after having received
9 the statement, it was decided that we might have to expand or clarify
10 certain points that were given in the earlier statement. And that was the
11 reason why I met them, to see if they would be willing to expand and
12 clarify certain issues.
13 Q. In respect to witnesses MC1 and MC2, were they willing to testify
14 in these proceedings?
15 A. They were willing to testify under certain conditions.
16 Q. And what conditions were those?
17 A. The first condition would be that they would be granted protective
18 measures as they had been granted in their previous testimony in the
19 Blaskic trial. But, in addition, they didn't want the accused in this
20 proceeding to know their actual names.
21 Q. And if that protective measure wasn't granted by the Trial
22 Chamber, were they still willing to testify?
23 A. No. They made it very clear that only under these conditions they
24 would be willing to testify. If their names would be revealed to the
25 accused in this case, they would not testify, in no way.
1 Q. Okay. Thank you.
2 MS. SUTHERLAND: I have no further questions, Your Honour.
3 JUDGE ORIE: Mr. Miljevic, you may cross-examine the witness.
4 Mr. Miljevic is counsel for the Defence, just for your
5 information, Mr. Spork.
6 Cross-examination by Mr. Miljevic:
7 Q. [Interpretation] Mr. Spork, when you established what you
8 described just now on the 31st of July, 2006, did you write a document
9 about that, a statement?
10 A. Yes, sir, I wrote an affidavit on that.
11 Q. Can you tell the Trial Chamber on what date this was?
12 A. That must be the day after that, so it must be the beginning of
13 September. Maybe -- I'm not completely sure, but the first week of
15 JUDGE ORIE: Yes. You're confusing us. You're confusing us a
16 bit, Mr. Spork. The question was about when you established, that you
17 described just now, on the 31st of July, and then you say a couple of days
18 later and you're talking about the beginning of September. Could you
19 clarify that, please.
20 THE WITNESS: [Interpretation] As I said, I did the investigation
21 on the internet site and I gathered all the information I needed in order
22 to be able to write the affidavit. I printed the pages, I printed the
23 other documents, and then I wrote an affidavit based on the outcome of
24 that initial investigation that I started on the 31st of July.
25 JUDGE ORIE: Yes. That certainly clarifies what is a couple of
1 days after. So I take it you started your investigation the 31st of
2 July. It then took you quite some time to gather documents, to put
3 everything together, and that you then wrote an affidavit relatively --
4 well, a couple of weeks after that. Is that the correct understanding?
5 THE WITNESS: That's correct, Your Honour.
6 JUDGE ORIE: Please proceed, Mr. Miljevic.
7 MR. MILJEVIC: [Interpretation]
8 Q. Am I reaching the proper conclusion if I say that in August you
9 did not write any statement or affidavit?
10 A. I -- I have to say I'm not sure anymore. It could be August, it
11 could be beginning the September.
12 Q. Can you say something a lot simpler, a lot easier? How many
13 affidavits or statements did you write in respect of what you established
14 on the 31st of July?
15 A. I wrote at least four affidavits. I took one statement of a
16 colleague from the leadership research team and in addition I took three
17 statements of persons whose name had been revealed.
18 Q. Now I'm interested in -- only in what you established on the 31st
19 of July when you found the list of witnesses. In respect of that, did you
20 make any other statements or affidavits?
21 A. You mean about the 31st of July, 2006? The initial affidavit
22 dealt with what was found on the internet, the documentation that was
23 found on the internet, the publications that were made on the different
24 internet sites. It also included documentation regarding the web host,
25 and then in addition I wrote additional affidavits that became apparent --
1 regarding information that became apparent after the 31st of July.
2 Q. That's precisely why I'm asking you this. Are all your statements
3 about that, that is to say what you saw on the 31st of July, 2006? Are
4 all of your statements the same or are they different?
5 A. All these statements are different because it's -- it's a
6 follow-up and one leads to another. One part -- one -- one part of the
7 investigation leads to another which made it necessary to write an
8 additional affidavit.
9 Q. Do you remember this published list that you recognised just now?
10 Was it only a confidential list or was there a public list involved as
12 A. I don't know to what extent the public list was public. I do,
13 however, recollect that the first list -- it were actually three similar
14 lists. The first list -- all three lists were in French. The first list
15 said "Confidential," and it had a capital letter C in front of
16 "confidential" with two stars on the side. The second document similar
17 to the first one said also "confidential," and then behind that "not to be
18 distributed." And the third list had no markings on it. But all three
19 lists were the same lists.
20 Q. Are you aware of the term Annex A, and did you attach anything
21 from this annex to your affidavits that had to do with what you had
22 established on the 31st of July?
23 A. You mean the Annex A to my affidavit, to my first affidavit?
24 Q. Exactly. Exactly.
25 A. As I said, I printed the witness lists and I attached them as an
1 Annex A to my affidavit. That's correct.
2 Q. Now, finally, the most important question. Did you remember later
3 on that this first affidavit you gave in relation to Annex A was not
4 correct, and then you made yet another affidavit, another statement on the
5 20th of September specifically?
6 A. I do, sir. Later on when I check the material, I found out that
7 even though all the papers had been printed and attached to the affidavit
8 I found out that two pages were missing, and I wrote an affidavit on that
9 and then attached these two missing pages to the second affidavit.
10 However, I would like to stress that when I wrote my first
11 affidavit and attached the annexes that was a complete set, and I mean all
12 three similar lists were attached as an Annex A. And only when after
13 checking and when I noticed that these two pages were missing I discussed
14 this with my superior and we decided I should write an additional
15 affidavit and explain what I noticed and then attach these -- the lists
17 Q. And the last question: Does that mean that your first affidavit
18 was wrong or untruthful in respect of Annex A?
19 A. No, definitely not, because as I told you I printed all the three
20 sets of papers and I attached them as Annex A. How two pages of this
21 annex got missing I don't know, but once we noticed they were not included
22 in the bundle, that's when we decided to write an additional affidavit and
23 attach them again. But no, no. It was not untruthful, and it was not
24 wrong either. I mean, the initial affidavit included all pages.
25 Q. But the annex did not have those two, right?
1 A. Initially it had, but apparently somewhere during processing two
2 pages got missing or lost.
3 JUDGE ORIE: Mr. Miljevic, we have to have a break very, very
4 soon. How much time would you still need? If it would be one minute or
5 half a --
6 MR. MILJEVIC: [Interpretation] I finished. I finished. I don't
7 even need a minute. This was my last question.
8 JUDGE ORIE: Thank you very much, Mr. Miljevic.
9 Any need to re-examine the witness? It's only relevant for what
10 I'm going to tell the witness now, because we would have to do it anyhow
11 after the break.
12 MS. SUTHERLAND: I just have one small area --
13 THE INTERPRETER: Microphone, please.
14 JUDGE ORIE: We have to have a break now because otherwise -- so
15 we'll have to do that after the break.
16 THE ACCUSED: [Interpretation] Your Honour.
17 JUDGE ORIE: If you want to address the Court, you can do that
18 through counsel. So during the -- if that would lead to any additional
19 question, we'll give an opportunity to that after the break, Mr. Margetic,
20 we'll hear from the counsel.
21 We'll have a break until five minutes past 1.00.
22 [The witness stands down]
23 --- Recess taken at 12.43 p.m.
24 --- On resuming at 1.08 p.m.
25 JUDGE ORIE: Before we continue, I'd like, first of all, the
1 witness to be escorted into the courtroom again and to inquire with the
2 parties on their availability after today.
3 Mr. Miljevic, would you be available tomorrow? When are you
4 leaving, Mr. Miljevic? Could you tell us?
5 [The witness entered court]
6 THE INTERPRETER: Microphone, please.
7 MR. MILJEVIC: [Interpretation] Your Honour, in several contacts
8 with the administration of this Tribunal, I was told that it would be only
9 one day, whereas I have some engagements in Zagreb tomorrow that cannot be
10 postponed at all, at several hearings, and a very important hearing in
11 Zadar. But far more important than that is the fact that at 3.00 in the
12 afternoon I am going to be an examiner at the bar examination in the
13 Ministry of Justice of Croatia, and that is where the programme cannot be
15 JUDGE ORIE: I'm --
16 [Trial Chamber confers]
17 JUDGE ORIE: At what time do you have to leave The Hague,
18 Mr. Miljevic, because that was the core of my question.
19 MR. MILJEVIC: [Interpretation] Sometime today, late in the
20 afternoon. I was told verbally that this would go on until 2.00 today,
21 possibly until --
22 JUDGE ORIE: Yes, that's clear to me. It's just for my
24 Then the Prosecution asked to put one or more questions to the
25 witness in re-examination. Yes. Please proceed, Ms. Sutherland.
1 MS. SUTHERLAND: Thank you, Your Honour. Could the witness be
2 shown Exhibit 8, please.
3 Re-examination by Ms. Sutherland:
4 Q. Mr. Spork, do you recognise that document?
5 A. Yes ma'am. This is my first affidavit which I wrote on the 4th of
6 August, 2006.
7 Q. And attached to that affidavit as Annex A?
8 A. Correct, ma'am.
9 Q. Is the witness list?
10 A. It is, ma'am.
11 Q. Do you see the three versions of the witness list there attached?
12 A. I have only two versions, ma'am.
13 Q. And which versions are they?
14 A. These were the two versions with the markings on it. The first
15 one with C -- with a star, "Confidential," which is -- and the send one
16 with "Confidential not distribute."
17 Q. And the one with star "confidential" consists of how many pages?
18 A. It consists of three pages and it's missing the last page.
19 Q. And the one marked "confidential do not distribute" consists of
20 how many pages?
21 A. It consists of four pages.
22 Q. And the public version is not annexed?
23 A. Not -- not in this folder, no.
24 MS. SUTHERLAND: Could the witness be shown Exhibit 9.
25 JUDGE ORIE: Could I ask one additional question in relation to
2 You say these were annexes to your first affidavit, which is dated
3 the 4th of August. Now, I see some handwriting on the top of the
4 "confidential not to distribute" copy, and it says "copied from," and
5 then I can't read it, "files," and then a date is attached which the month
6 very much appears to be a 9. Could you comment on that, Mr. Spork?
7 THE WITNESS: I can only see -- see the same things as you do,
8 Your Honour. It says 30, 9, 1995, 1995.
9 JUDGE ORIE: 1995, yes. Any clue as to what that means, this
11 THE WITNESS: No. No, I don't, I'm sorry.
12 JUDGE ORIE: Any idea on who put this date on it?
13 THE WITNESS: I don't know, Your Honour.
14 JUDGE ORIE: Please proceed, Ms. Sutherland.
15 MS. SUTHERLAND:
16 Q. Could you look at Exhibit number 9, please. Do you recognise that
18 A. Yes, ma'am. This is a follow-up on my first affidavit regarding
19 the missing of the first page of the first set of documents and the fact
20 that the public list was not contained in my Annex A.
21 Q. And the date that you became aware of that was?
22 A. The 13th of October. I wrote the affidavit on the 13th of
23 October, 2006.
24 Q. But you became aware of it -- of the pages missing on the 20th of
25 September; is that correct?
1 A. That's correct, ma'am.
2 Q. When you were questioned earlier by the Defence in relation to
3 Annex A, you said that two pages were missing from the document, but do
4 you -- do you still stick by that answer, or from what you've just told us
5 it seems to be different?
6 A. That's correct, ma'am. It's my mistake. I meant for the first --
7 the first document, which consists of the C confidential the last page is
8 missing and the whole public list was missing.
9 Q. Thank you. Could the witness be shown Exhibit 14, please.
10 Do you recognise that document?
11 A. Yes, ma'am. This is the affidavit I wrote after I contacted the
12 three witnesses.
13 Q. And the date of the contact with the witnesses?
14 A. That date was the 8th of September, and I wrote the affidavit the
15 same day.
16 Q. Thank you. I have no further questions.
17 JUDGE ORIE: Ms. Sutherland, these affidavits are not in evidence
19 MS. SUTHERLAND: Your Honour.
20 JUDGE ORIE: They are not.
21 MS. SUTHERLAND: No, Your Honour.
22 JUDGE ORIE: Then --
23 MS. SUTHERLAND: [Microphone not activated].
24 JUDGE ORIE: -- they need to be assigned a number at least. So
25 we're talking about three affidavits now, and they should be under seal
1 anyhow. These are the affidavits found on the 65 ter list under 8 -- 9 --
2 MS. SUTHERLAND: [Microphone not activated].
3 JUDGE ORIE: -- and 14, all being affidavits. The first one - let
4 me just have a look - I think it's the 4th of August. The second one --
5 or am I making a mistake now. No. I think the first one the 4th of
6 August, the second one dated the 13th of October, 2006, and the third one,
7 14, is the 8th of September, 2006. All three 2006. Yes.
8 Any objection, Mr. Miljevic, to the admission of these documents
9 in evidence?
10 THE INTERPRETER: Microphone, please.
11 MR. MILJEVIC: [Interpretation] No objections. That's exactly what
12 I asked the witness about, because it's obvious that there are at least
13 three statements or affidavits.
14 JUDGE ORIE: Yes, but they were not in evidence yet.
15 Admitted -- yes. These are admitted into evidence. Judge Moloto
16 has a question for you, Mr. Spork.
17 Questioned by the Court:
18 JUDGE MOLOTO: Just one question, Mr. Spork.
19 In your evidence you indicated that after discovering this
20 web site on the 31st of July you wrote an affidavit first you said a few
21 days later but then you said in September. I see the first affidavit that
22 you referred to here is dated the 4th of August. Is there any explanation
23 you can give for that, the 4th of August and September?
24 THE WITNESS: No, Your Honour. That was my mistake. As I
25 initially said, I was looking at the internet site and I was printing off
1 all the documentation that I could find there in order to avoid that if
2 the web site would be closed I would not be able to print it anymore, and
3 as I initially said maybe a couple of days later, maybe a week later, I
4 wrote my first affidavit and I made a mistake when I said afterwards that
5 it could be maybe the end of August, because it was the 4th of August.
6 This was definitely my first affidavit that I wrote when I started
7 the investigation.
8 JUDGE MOLOTO: Thank you very much. That's all.
9 JUDGE ORIE: Yes. Mr. Miljevic, I take it there are no -- there's
10 further need to examine the witness?
11 Then, Mr. Spork, this concludes your --
12 MR. MILJEVIC: [Interpretation] No need.
13 JUDGE ORIE: This concludes your testimony in this court. I thank
14 you very much for coming, although it was not very far, perhaps, but thank
15 you very much, and madam usher will escort you out of the courtroom.
16 [The witness withdrew]
17 JUDGE ORIE: The next witness to be called by the Prosecution will
19 MS. SUTHERLAND: Your Honour, the Prosecution calls Witness MC3.
20 JUDGE ORIE: And that is a protected witness, and the protective
21 measures are?
22 MS. SUTHERLAND: Yes, Your Honour. The Court granted this witness
23 protective measures for him to testify with a pseudonym, image, and voice
25 JUDGE ORIE: Yes. And then we need a break to have the voice
1 distortion in place. The Chamber would very much like to -- of course we
2 should have done this before during the last break.
3 I'm not fully aware of all the technicalities. What's the minimum
4 time we -- the technicians would need, because we're really trying hard to
5 see whether we can conclude the case today, but of course Defence still
6 has to present its case. What's the minimum time?
7 THE REGISTRAR: It would be done between 3 and 5 minutes. We can
8 even go into closed session. The technician will get and --
9 MS. SUTHERLAND: And the witness can be brought in at that point,
10 Your Honour.
11 JUDGE ORIE: I do not fully understand. We would then go into
12 closed session, and then meanwhile the system would be adjusted and then
13 later on we would -- yes. But then a small part of the testimony of the
14 witness could not be seen, although this very blurry picture, nothing at
16 Would that be any problem for you, Mr. Miljevic, if we would start
17 in closed session and immediately move to -- yes?
18 MS. SUTHERLAND: Your Honour, as I understand it, the audio booth
19 needs to have a break or to go into closed session so that they can do the
20 voice distortion. And so at that point the witness could be brought in,
21 and then once the voice distortion is set up we can start his testimony.
22 JUDGE ORIE: So we just wait here.
23 MS. SUTHERLAND: Yes.
24 JUDGE ORIE: We don't even go into closed session. We adjourn, as
25 a matter of fact, we adjourn for the time needed to adjust for the voice
1 distortion, and we'll resume then and perhaps even stay in the courtroom
2 until that's done.
3 THE REGISTRAR: Yes, Your Honour.
4 JUDGE ORIE: Okay. Then we'll adjourn for a couple of minutes,
5 the time needed for the adjustment of the voice distortion.
7 [The witness enters court]
8 JUDGE ORIE: We'll resume the hearing. Witness MC3, because
9 that's -- yes?
10 MS. SUTHERLAND: Yes, Your Honour.
11 JUDGE ORIE: Yes. Witness MC3, first of all, do you hear me in a
12 language you understand?
13 THE WITNESS: [Interpretation] Yes.
14 WITNESS: WITNESS MC3
15 [Witness answered through interpreter]
16 JUDGE ORIE: Witness, I call you by this name because we will not
17 use your real name. We'll use a pseudonym. Apart from that, your voice
18 could not be directly heard by the outside world, and your face also is
19 scrambled on our screens so that no one outside of this courtroom could
20 see your face.
21 Before you give evidence in this Tribunal, the Rules of Procedure
22 and Evidence require you to make a solemn declaration that you'll speak
23 the truth, the whole truth, and nothing but the truth, and the text is now
24 handed out to you by Madam Usher. May I invite you to make that solemn
1 THE WITNESS: [Interpretation] I solemnly declare that I will speak
2 the truth, the whole truth, and nothing but the truth.
3 JUDGE ORIE: Thank you very much. Please be seated. You'll first
4 be examined by Ms. Sutherland, who is counsel for the Prosecution.
5 Ms. Sutherland, I take it that we first go to the pseudonym sheet.
6 MS. SUTHERLAND: Could the witness be shown this piece of paper.
7 Examination by Ms. Sutherland:
8 Q. Witness MC3, the Trial Chamber has granted you permission to
9 testify today with a pseudonym, image, and voice distortion. Could you
10 have a look at that piece of paper, and without mentioning your name can
11 you confirm whether that's your name and your date of birth, please?
12 JUDGE ORIE: Would you please give your answer by saying
13 something, because for our interpreters and for the audio record, it's
14 important that we hear you say yes or no. Is it -- I take it from your
15 nodding that you confirm that you found your name and date of birth on
16 this piece of paper. Is that correct?
17 THE WITNESS: [Interpretation] Yes, it is.
18 JUDGE ORIE: Thank you. Then, Madam Registrar, that pseudonym
19 sheet will need a number.
20 THE REGISTRAR: It will be Prosecution Exhibit number 26. It will
21 be under seal, I understand.
22 JUDGE ORIE: Yes, thank you, and is admitted into evidence under
24 Please proceed.
25 MS. SUTHERLAND:
1 Q. Witness, you were recently informed by the Tribunal's victims and
2 witness section that your identity had been disclosed.
3 JUDGE ORIE: Please proceed, Ms. Sutherland.
4 MS. SUTHERLAND:
5 Q. Could you please tell the Court your initial reaction to being
6 advised of this.
7 A. I can tell you it was difficult. It was exhausting. I still feel
8 the consequences to this day in the sense of my security and what has been
9 done to us witnesses, because when we came to take the stand here, we came
10 because we believed all our rights would be guaranteed, and these rights
11 have all been taken away from us. Now I'm suffering heavy traumas. I'm
12 in severe pain.
13 Q. If I can just pause you there. We will go into more -- which is,
14 if you can just pause there. We will go into more detail in a moment in
15 relation to that. But first when you spoke to Investigator Spork in early
16 September 2006, what did you tell him at the time?
17 A. I told him that I would come to testify in The Hague, and I have
18 come, and I actually came, and I gave a statement as a protected witness
19 under a protected name. And you see after that now that appeared in the
21 Q. Witness, if I can just pause you there for a moment. When
22 Mr. Spork initially spoke to you, were you initially reluctant to testify?
23 A. What year was that?
24 Q. In relation to this case. When Mr. Spork spoke to you in
25 September, you were willing -- you were initially reluctant to testify,
1 were you not?
2 A. Yes. I can tell you that I hesitated because security is no
3 longer guaranteed us.
4 Q. Mr. Spork contacted you again in November, and you agreed to meet
5 with OTP investigators, and you subsequently provided two statements to
6 investigators on the 15th and the 20th of November, 2006. You had an
7 opportunity yesterday to review the B/C/S translations of those
8 statements. Is there anything you wish to clarify in relation to either
9 of those statements before we continue with your testimony?
10 A. When I arrived, I gave the statement to the effect that I would
11 come and take this witness stand here before this Tribunal, and I have
12 come. And there you have it. I'm present right now to testify, to make a
14 Q. Just pause there, Witness. So have you suffered any physical
15 consequences as a result?
16 A. When they informed us, first they called us on the mobile phone,
17 and they told us that we were uncovered as witnesses, that we had been
18 revealed on the internet and in the papers, and that really -- I took it
19 very hard, and I still feel the consequences to this day.
20 Q. Can you describe for the Court the consequences that you now
21 suffer as a result of your name being disclosed?
22 A. Well, I can tell you first and foremost I'm no longer secure.
23 Secondly, I have constant pains. I'm on medication at all times. And
24 that's about it. I'm not feeling well. I am undergoing treatment. I
25 have check-ups regularly. And I can't sleep simply. I experienced a
1 severe stress then because my security was endangered. And at the same
2 time, this affected my condition. I fell ill.
3 Q. You said that you are currently undergoing treatment --
4 THE INTERPRETER: Microphone, please.
5 MS. SUTHERLAND:
6 Q. You said that you were currently undergoing treatment. What sort
7 of treatment is that?
8 A. Well, every month I go to see the doctor, a specialist. That's
9 one. And secondly, I'm under constant control on his part. He -- he
10 gives me all sorts of medicaments which will help me walk easier and to
11 ease my condition, because I'm always fearful of the consequences that I
12 can have as a witness here, namely after having been uncovered as a
13 witness here.
14 Q. Is the treatment psychiatric treatment? Is the treatment you're
15 currently undergoing under a psychiatrist?
16 A. A psychiatrist, yes.
17 Q. When did you first start attending the psychiatrist?
18 A. I started seeing one when I found out about this matter. And I am
19 still seeing him today, and I am still undergoing treatment, and I'm
20 taking medicaments which is also hard for me because they are very
21 expensive, the drugs which I have to take, and I really don't know who is
22 going to keep me in those medicines, because when I came here the first
23 time, to take the witness stand for the first time, I was told that we
24 would be protected as witnesses.
25 MS. SUTHERLAND: Could the witness now be shown this document.
1 Q. Sir, is this a copy of the document you gave me yesterday?
2 A. Yes. This is my documentation from the last time I went for a
3 check-up, my last check-up. Here -- the drugs are in there.
4 MS. SUTHERLAND: Your Honour, I would tender this document into
5 evidence under seal.
6 JUDGE ORIE: Ms. Sutherland, if it is under seal -- I do
7 understand that we are using the MC3 pseudonym, but why could the Chamber
8 at this moment not see the unredacted document? So that we, for example,
9 could identify this witness as the person to whom this document relates?
10 MS. SUTHERLAND: Yes, Your Honour. We will --
11 JUDGE ORIE: I mean, it could be anyone. You put MC3 on it and
12 then it would be valid always, isn't it?
13 MS. SUTHERLAND: I fully understand, Your Honour. We will have
14 the original brought.
15 JUDGE ORIE: So it's tendered, and the original, if we then accept
16 it under seal, I mean, yes.
17 MS. SUTHERLAND:
18 Q. Witness, do you have this document on your person? Could you
19 please produce it and show it to the Court, please.
20 A. I do have it on my person. Here.
21 JUDGE ORIE: The Chamber has verified that the name on the
22 original is the same name as we find on the pseudonym sheet. At least the
23 year of birth is the same.
24 Does the Defence insist on having the original in evidence, or
25 could we proceed on the basis, having established it, to return the
1 document to the witness and to have the redacted statement in evidence?
2 Or would you want to verify yourself, Mr. Miljevic?
3 MR. MILJEVIC: [Interpretation] I do not need to verify it. I
5 JUDGE ORIE: Then the redacted version will be admitted into
7 Please proceed.
8 THE REGISTRAR: Your Honour, that will be Exhibit 27.
9 JUDGE ORIE: Yes, 27. Thank you.
10 MS. SUTHERLAND:
11 Q. Witness, is it the fact that you commenced seeing a psychiatrist
12 shortly after the events that happened to you which caused you to be a
13 witness initially in the Blaskic case?
14 A. Yes. That is why. It is from that time. And I came as a
15 witness, and I didn't.
16 Q. And then at some point with your psychiatric treatment did you
17 have a break for some period of time?
18 A. Yes, I had a break.
19 Q. But you were still under the medication that had been prescribed
20 by the psychiatrist?
21 A. Now I am on those medicaments because my condition has worsened.
22 Q. And you heard about the disclosure of your identity, you commenced
23 seeing the psychiatrist again; is that correct?
24 A. Yes.
25 MS. SUTHERLAND: Your Honours, I don't know whether you want me to
1 read the clinical examination into the record.
2 JUDGE ORIE: It's a very short passage. Please do so.
3 MS. SUTHERLAND: "After specific re-traumatisation, visible
4 deterioration in condition."
5 And does the Court want the medication on the record?
6 JUDGE ORIE: No. The document will be in evidence, so it's --
7 MS. SUTHERLAND: Thank you, Your Honour.
8 Q. Witness, are you willing to cooperate with the ICTY in the future?
9 A. I am willing if -- if what I have suffered is rectified because I
10 came to see -- to be before this Tribunal, but before my case is resolved
11 I am not willing to come because I want what has been inflicted on me to
12 be made good. I want to be paid compensation. I am constantly on
13 medicines. I'm unable to bear that. I want the accused to compensate for
14 the damage which has been inflicted on me and which I am suffering today.
15 Q. Witness, are you willing to cooperate with a national court if you
16 were asked to testify in any cases?
17 A. I'm not willing, because -- because I have been humiliated here,
18 and then nobody is guaranteeing my security. My security is very
19 endangered where I live.
20 MS. SUTHERLAND: Your Honour, that completes my examination of the
22 JUDGE ORIE: Thank you, Ms. Sutherland.
23 Mr. Miljevic, you have an opportunity to cross-examine the
25 Witness MC3, you'll now be examined by Mr. Miljevic, who is
1 counsel for the Defence.
2 Mr. Miljevic.
3 Cross-examination by Mr. Miljevic:
4 Q. [Interpretation] Mr. Witness, I'm not going to ask you much, just
5 a couple of things.
6 Can you tell the Honourable Bench when it was that you learned
7 that this list was published and that your name was on it?
8 A. It was in August.
9 Q. Can you be more specific? When in August?
10 A. I cannot remember the exact day. I know that it was August. And
11 as for the day, I can't be sure.
12 Q. Was it in the first or in the second half of August?
13 A. I believe it was in the first half, but I'm not sure again.
14 Q. Can you tell the Tribunal from whom and how you learned about
16 A. I learned about it from the OTP in The Hague.
17 Q. In which way?
18 A. They called me. They informed me. They told me that
19 unfortunately we had been disclosed.
20 Q. And when did you give a first statement about that and to whom?
21 A. I gave it -- I cannot remember. I cannot remember the date.
22 Q. Perhaps just a month.
23 A. They informed me about everything by telephone. They called me.
24 I gave a statement 10 days ago for the Tribunal, but they informed me by
25 phone. So we had a telephone conversation.
1 Q. Can you tell us when you learned that your name had been
2 published? When was it that you saw a psychiatrist for the first time?
3 A. I saw a psychiatrist in August, about the 15th of August.
4 Q. And after that how many times did you see the psychiatrist?
5 A. I go as needed, but once a month at least I see him.
6 Q. If I understood you well, you were not in hospital. You just see
7 the psychiatrist as an outpatient.
8 A. Yes, I'm not an in-patient in a hospital. There is no room.
9 There are no beds. But I'm under his control.
10 Q. And that control is every month?
11 A. It is every month or every 15 days or when I run out of
12 medicaments or when I feel the consequences.
13 Q. Right now do you have a monthly control or in shorter intervals?
14 A. Now it is a month, but I can go and see him before that date if I
15 feel the difficult consequences. I can ask to see my doctor.
16 Q. Thank you. That concludes my examination.
17 JUDGE ORIE: Thank you, Mr. Miljevic.
18 Ms. Sutherland, any need for further questions to the witness?
19 MS. SUTHERLAND: No, Your Honour.
20 JUDGE ORIE: Then, Witness MC3, this concludes your testimony in
21 this court. It's been a long way, and you've testified --
22 THE WITNESS: [Interpretation] Can I ask a question, just one
23 question, a very brief one?
24 JUDGE ORIE: I do not know whether I could give an answer to your
25 question, but I'll allow you to put a question, but I'm not promising that
1 we are able and we are in a position to answer the question since we do
2 not know the question yet.
3 THE WITNESS: [Interpretation] I'm only going to ask: Who is going
4 to make good these violations of my security, of my health, of my
5 condition? Who is going to pay that? Who is going to compensate that for
6 me? Because he hurt us. He targeted us witnesses, as a war criminal, and
7 that is still being done today. We came here to take the witness stand in
8 an honest fashion, and that's it.
9 JUDGE ORIE: First of all, I'd like to assure you that any
10 violation of protective measures always is taken very seriously by this
11 Tribunal. That, I take it, is also the reason why the Prosecution has
12 started this prosecution, this prosecution which has not yet resulted in
13 any judgement. That's also the reason why other cases have been
14 prosecuted before this Tribunal, because the Tribunal takes these matters
15 very seriously.
16 As far as the practical question is concerned that who is going to
17 compensate for it, I can't answer that question. The best thing you could
18 do is to further discuss this with the victims and witness section. I
19 cannot even say that there's any way of compensating for it, but certainly
20 we could give no answer to that at this moment.
21 Then I'd like to thank you again for coming to The Hague where I
22 said before if there's a violation of protective measures that when I said
23 that it's taken very seriously, that of course is, because it's general
24 knowledge that if a witness testifies under protective measures that it
25 will be very difficult for him to find out at a later stage that his
1 protection was not effective. The Chamber is fully aware of that.
2 You'll now be escorted out of the courtroom by Madam Usher. I
3 wish you a safe trip home again.
4 THE WITNESS: [Interpretation] Thank you.
5 [The witness withdrew]
6 JUDGE ORIE: Ms. Sutherland.
7 MS. SUTHERLAND: Your Honour, we have copies of Witness MC1's and
8 MC2's statements.
9 JUDGE ORIE: The reacted statements that you wanted to tender.
10 Madam Registrar will receive them and assign a number to them.
11 MS. SUTHERLAND: Thank you.
12 JUDGE ORIE: Are these ...
13 Madam Registrar, could you please, referring to dates and
14 pseudonym of the witnesses, assign numbers to them. Perhaps we start with
15 MC1. We have a statement MC1, the 16th of November, 2006. That would be
17 THE REGISTRAR: Prosecution Exhibit 28.
18 JUDGE ORIE: Then also MC1's statement, the 20th of November
19 statement, same year.
20 THE REGISTRAR: Prosecution Exhibit 29.
21 JUDGE ORIE: Then I move to MC2, one of the 16th of November,
22 statement of 16th of November.
23 THE REGISTRAR: Prosecution Exhibit 30.
24 JUDGE ORIE: And then we have -- there's only one MC2 statement,
25 or is there another one? I thought there would be two as well.
1 MS. SUTHERLAND: Yes, Your Honour, there should be two.
2 JUDGE ORIE: I have another one of the 19th of November. Is that
4 MS. SUTHERLAND: Yes.
5 JUDGE ORIE: So let me see. The Prosecution Exhibit 30 is the
6 16th of November, and then the statement of the 19th of November, MC2,
7 would be number?
8 THE REGISTRAR: Prosecution Exhibit 31, Your Honour.
9 JUDGE ORIE: Yes. Thank you very much Madam Registrar.
10 Ms. Sutherland.
11 MS. SUTHERLAND: Thank you for doing my job, Your Honour.
12 JUDGE MOLOTO: I don't seem to have the statement of the 19th of
14 JUDGE ORIE: On the Bench, finally, there's at least one copy of
15 each statement. We'll very practically resolve this matter.
16 Ms. Sutherland.
17 MS. SUTHERLAND: Your Honour, that completes the evidence for the
18 Prosecution in this case.
19 JUDGE ORIE: That completes the evidence for the Prosecution.
20 Mr. Miljevic. Then it's now for the Defence to present its
22 MR. MILJEVIC: [Interpretation] Your Honours, in the materials that
23 were provided to me by the Office of the Prosecutor of this Tribunal, I
24 received a decision, IT-95-14/2-RI77. The date is the 22nd of August,
25 2006, in the proceedings against Josip Jovic, where a decision was made
1 that documents 18 be made confidential again and admitted into evidence.
2 That was also attached in the table attached to the reports from the press
3 conference of this Tribunal of the 23rd of August this year.
4 In this same case, on the 11th of July, 2006, a decision was made
5 that my client interpreted, and he still believes that from that date
6 onward the list was no longer confidential. I think that all the
7 requirements have been met here from Rule 68 that speak of the disclosure
8 of exculpatory and other materials. I believe that --
9 JUDGE ORIE: Mr. Miljevic, may I interrupt you for a second.
10 You're talking about documents which are not in evidence at this moment.
11 So it may have been disclosed to you, but in the proceedings before this
12 Tribunal not all the documents given to you are available to the Bench.
13 So therefore, if you would like us to pay attention to these documents,
14 you should introduce them into evidence.
15 Have you copies for us?
16 MR. MILJEVIC: [Interpretation] That's precisely what I'm talking
17 about. That is what I've just said. That was submitted to me, not
18 disclosed to me, and I would like to have this admitted into evidence.
19 Whereas I do have copies for you, here, in the English language. I have
20 them and I would like to submit them straight away.
21 JUDGE ORIE: Yes. If you give them to Madam Usher, then ...
22 May I take it that the Prosecution is familiar with these
23 documents or not at all?
24 MS. SUTHERLAND: Yes, Your Honour, we're familiar with them.
25 JUDGE ORIE: So even if there may be no copies for you at this
1 moment that would not prevent the Chamber from proceeding.
2 MS. SUTHERLAND: We're aware of the 22nd of August decision and
3 the 23rd of August press release, but we do not know about the decision on
4 the 11th of July.
5 JUDGE ORIE: Yes. Mr. Miljevic, I see at this moment before me
6 one copy with some underlining added, copy of a decision dated the 22nd of
7 August, 2006, a decision by Trial Chamber III. I also have in front of me
8 a press release, but I have not yet a July decision, although it may be --
9 let me just -- no. No reference is made to any July decision.
10 Could you provide us also with the decision of -- you said the --
11 the 11th of July. Have you got a copy of that decision for us as well?
12 Yes. Could you provide it to Madam Usher.
13 MR. MILJEVIC: [Interpretation] Your Honour, I received these
14 documents from the OTP, they hadn't been disclosed until now. I suggested
15 that they be disclosed and admitted into evidence. But what I would like
16 to ask for now is what I had already asked for during the course of the
17 proceedings today, the application of Rule 126 bis and 127. Since I got
18 the documents after the 24th of November, we are still within the
19 time-limit of 14 days, according to 126 bis. So we still have six or
20 seven days left, so could I kindly be allowed to submit the document
21 within those six or seven days?
22 JUDGE ORIE: Rule 126 bis provides for the time need for filing
23 responses to motions. I do understand that material was disclosed to you.
24 Disclosure is not a motion.
25 Do you say -- is it your position that since you received this
1 material rather late that you cannot provide it to the Chamber? I
2 thought -- I was under the impression that it served the interests of the
3 Defence if the Chamber would have that decision on its table.
4 MR. MILJEVIC: [Interpretation] Mr. President, you are quite right,
5 because I actually did refer to Rule 68, and that is the discovery of
6 exculpatory and other materials. I believe that that document would be
7 extremely useful for the defence of my client, and that is why I'm kindly
8 asking to have permission to disclose it as soon as possible, but so far I
9 haven't been in a position to do so because I got it only after the 24th
10 of November.
11 [Trial Chamber confers]
12 JUDGE ORIE: Does this mean that you just don't have the document
13 at this moment with you?
14 MR. MILJEVIC: [Interpretation] At this moment I haven't got it.
15 JUDGE ORIE: Yes.
16 MR. MILJEVIC: [Interpretation] I can submit it to the Court within
17 24 hours.
18 JUDGE ORIE: Yes. Could the Prosecution assist the Defence in
19 this respect? Is there any possibility that within the next 20 minutes
20 the Prosecution could provide a copy of that document so that it's handed
21 over to -- is that possible or ...
22 MS. SUTHERLAND: Yes, Your Honour, if the Defence can give more
23 details. Is it a written or oral decision, and is it in the Jovic case on
24 the 11th of July, 2006?
25 MR. MILJEVIC: [Interpretation] Absolutely. According to my
1 information, it is one and the same case, and I referred to it already,
2 the number I mentioned a few moments ago, and the date of the decision is
3 the 11th of July.
4 JUDGE ORIE: And do you know whether it's a written decision or
5 whether it's an oral decision? I can't imagine that it's -- if it's about
6 admission of evidence that it would be --
7 MR. MILJEVIC: [Interpretation] Unfortunately, I don't know.
8 MS. SUTHERLAND: Your Honour, we'll do a search on the transcript
9 for that date and through the JDB for a written decision on that date.
10 JUDGE ORIE: Yes. Since I do understand from the second decision
11 that it has got something to do with Exhibit 18, and perhaps the second
12 decision ...
13 MS. SUTHERLAND: The 11th of July, Your Honour, is the date of the
14 actual hearing, so perhaps there was an oral decision made during that
16 JUDGE ORIE: Yes. If there's any way for you to search in the
17 transcript and find the relevant portion, then it certainly would assist
18 the Chamber in having this.
19 We're all trying to do our utmost best to get that decision on our
20 table as soon as possible.
21 Mr. Miljevic, please proceed.
22 MR. MILJEVIC: [Interpretation] Those are the only two documents
23 that I would like to have admitted into evidence in writing, but my client
24 is also prepared to testify in his own case, once this document is
25 admitted into evidence, that is.
1 JUDGE ORIE: Mr. Miljevic, that he's prepared is fine, but either
2 you call him or you don't call him. It's up to you what evidence you want
3 to present. Therefore, do you want to call your client as a -- do you
4 want to call the accused as a witness in his own case?
5 MR. MILJEVIC: [Interpretation] Your Honour, as it was mentioned
6 here today, I was asked yesterday during the informal meeting whether my
7 client would be prepared to testify in his own case, and I said yesterday
8 what I'm saying here today. That is to say, that my client does wish to
9 testify in his own case but only once this document has been admitted into
10 evidence, because I believe that that is going to be the backbone of his
11 defence in relation to Rule 77, that is.
12 JUDGE ORIE: Unfortunately, the situation the Chamber wanted to
13 avoid, we are now in a situation where we have to adjourn. We can't
14 continue further today. Due to understandable reasons for Defence counsel
15 we can't continue tomorrow. So therefore we are now in a situation where
16 the Defence wants to call a witness, that is the accused, and at the same
17 time relies on what the Defence calls a document but what we understand at
18 least is a decision which may be contained in a transcript. It's not the
19 way the Chamber expected the case presentation of the Defence to be. At
20 the same time, it seems to be this decision, and perhaps the testimony of
21 the accused might be of importance for the case, and therefore the Chamber
22 sees no alternative than to adjourn to have this last part of the
23 presentation of the Defence case, to hear that at a later date and then
24 immediately after that to hear closing argument, because in contempt cases
25 final briefs are not envisaged.
1 We can't give you a date yet when we will resume, but we'll try to
2 have that as soon as possible.
3 And, Mr. Miljevic, you're invited to communicate with the
4 Prosecution and also to communicate with the registry as to your
5 availability and then we'd like to see you back at the date when we
7 I'm now informed that there may be a possibility to continue this
8 afternoon since the Mrksic case will take less time, although there are
9 some other logistical problems as well which have to be resolved before we
10 continue. I suggest that we have a break of 15 minutes at this moment,
11 that the Prosecution tries to find the relevant portion of the transcript
12 in which the decision is contained, then communicates that to the Defence
13 and then we'll see if we could still continue this afternoon.
14 We stand adjourned for 15 minutes.
15 --- Recess taken at 2.11 p.m.
16 --- On resuming at 3.07 p.m.
17 JUDGE ORIE: Mr. Miljevic, has the work performed during the break
18 resulted in anything the Chamber has to hear?
19 MR. MILJEVIC: [Interpretation] Unfortunately, I don't know. I
20 have been informally informed by the OTP that they have the hearing
21 transcripts, a part of them that is, but I haven't seen them, so I don't
22 know what they contain, actually. My client still maintains that it was
23 the 11th of July. Whether that is so in the transcript in reference to
24 that particular date I have no way of knowing. I haven't seen it.
25 JUDGE ORIE: Yes. That's, of course, part of the preparation that
1 should have been done. This means that in the present situation do you
2 want to call your -- the accused as a witness? Perhaps he could clarify.
3 I don't know whether there's anything he could tell us about it, but we
4 gave you ample time and you were assisted by the Prosecution.
5 I take it that the Prosecution then has searched the transcript of
6 the 11th of July hearing, and do I understand that nothing was found on
7 admission of lists?
8 MS. SUTHERLAND: No, Your Honour. We did an electronic search on
9 the word list, Exhibit 18, and then printed out a hard copy of the
10 transcript which we then tried to quickly review as soon as possible.
11 It's 118 pages.
12 JUDGE ORIE: Yes.
13 MS. SUTHERLAND: The whole transcript is in open session. I don't
14 see any private session. We've also searched for that word electrically,
15 to see whether in fact there is any private session. And then I was going
16 to provide the whole transcript to Mr. Miljevic to see himself whether
17 there's anything that he finds of relevance in the transcript, but we only
18 just finished reviewing the transcript ourselves.
19 JUDGE ORIE: Yes. Mr. Miljevic, everyone worked hard to see
20 whether they could assist you in procuring the evidence you'd like to
21 present and which is not at this moment available from what I understand.
22 Nevertheless, you provided us with the 22nd of August decision, which may
23 shed some light on the matter as well.
24 How would you like to proceed with the presentation of the Defence
1 MR. MILJEVIC: [Interpretation] After the decision of the 22nd of
2 August was admitted into the file as well as the press release from the
3 press conference of the 23rd of August where the list of -- the list
4 actually indicates that it was on that date that such a ruling was passed,
5 after that I only intended to obtain this exhibit which obviously we could
6 not do today, and then after that my client be examined as a witness in
7 his own case.
8 Therefore, I should like to ask this Tribunal, if that is at all
9 possible, after we have adjourned -- to proceed in that way after we have
10 adjourned for a couple of days because we are really exhausted, as it
12 [Trial Chamber confers]
13 JUDGE ORIE: The Chamber might take one or two minutes to
14 deliberate, but first we'd like to hear from the Prosecution whether
15 they -- what their position is in respect of adjourning.
16 MS. SUTHERLAND: Your Honour, it's our position that the case
17 should continue today.
18 JUDGE ORIE: Yes. That's short and clear.
19 [Trial Chamber confers]
20 JUDGE ORIE: We will adjourn for two minutes.
21 --- Break taken at 3.09 p.m.
22 --- On resuming at 3.11 p.m.
23 JUDGE ORIE: The issue at stake, it appears from other material
24 and evidence, is known to the Defence for quite some time, so they have
25 had ample opportunity to find any document or any transcript which would
1 cover the matter.
2 At this moment, the Chamber sees no reason to adjourn. Whether we
3 would at a later stage is a different matter, but we invite you,
4 Mr. Miljevic, to proceed at this moment. That means either to present
5 other evidence or to call your client as a witness, to call the accused as
6 a witness in his own case. Please tell us how you wish to proceed at this
8 If you want to consult with Mr. Margetic, of course you have an
9 opportunity to do so.
10 MR. MILJEVIC: [Interpretation] I was firmly promised that this
11 hearing today would last until 2.00 or 3.00 at the most. That is why I
12 came here. But the situation being as it is, I have no option but to
13 proceed, and I propose to call my witness, to examine him as a witness in
14 his own case.
15 JUDGE ORIE: Then, Mr. Margetic, you're called to the stand.
16 Madam Usher, could you ...
17 [The witness takes the stand]
18 WITNESS: DOMAGOJ MARGETIC
19 [Witness answered through interpreter].
20 JUDGE ORIE: Mr. Margetic, before I'll invite you to give a solemn
21 declaration I'd like to -- one second, please. Please sit down for a
23 It should be clear to you that you are under no duty to testify in
24 your own case. You may remind silent. But once the Defence has decided
25 that you do testify in your own case as a witness, then you're under an
1 obligation to answer all the questions, to answer them truthfully, also to
2 answer any questions that will be put to you in cross-examination by the
3 Prosecution. If you would not speak the truth, then you may be prosecuted
4 for perjury. You should be aware of that, that you're not under any duty
5 to testify, but if you testify that it brings obligations and that it may
6 have consequences.
7 Mr. Margetic, I take it that you want to make a solemn declaration
8 as a witness in your own case. Yes. Then Madam Usher will give you the
9 text of the solemn declaration.
10 THE WITNESS: [Interpretation] I solemnly declare that I will speak
11 the truth, the whole truth, and nothing but the truth.
12 JUDGE ORIE: Thank you, Mr. Margetic. Please be seated.
13 Mr. Miljevic, you may examine Mr. Margetic as a witness in his own
15 Examination by Mr. Miljevic:
16 Q. [Interpretation] Mr. Margetic, will you tell the Bench when did
17 the proceedings which were instituted before this court against you end
18 and how?
19 A. They -- it finished in the mid-June last year, and the OTP of the
20 Tribunal for the former Yugoslavia actually dropped the case.
21 THE INTERPRETER: Can counsel please slow down. Because of the
22 overlap the interpreter could not catch it.
23 JUDGE ORIE: I have to -- you both speak the same language, so
24 once you have put your question, Mr. Margetic should wait until it has
25 been translated into English. He can see when it still moves on his
1 screen it's not there in English yet. Wait and then give the answer.
2 Similarly, Mr. Miljevic, you will have to wait after Mr. Margetic
3 has given his answer a while before you put your next question to him.
4 Please proceed.
5 THE INTERPRETER: Microphone, please.
6 MR. MILJEVIC: [Interpretation]
7 Q. Can you please tell the Bench whether you remember if in April of
8 this year you received any order from the OTP or any communication
9 whatsoever in respect of the fact that you were bound by confidentiality
10 and had to keep secret in relation to the witness list in the Blaskic
12 A. No. No, I never received any similar communication, nothing of
13 the kind. And in the beginning of May, if I remember correctly, I
14 received in -- in an envelope, a mail dispatching envelope, I received a
15 CD with Tribunal materials, and the CD -- on the CD was written by
16 hand "disclosure," and the number of the file, so that at that particular
17 moment I thought that this was material that had already been disclosed
18 and from which the mark of confidentiality had been lifted.
19 Q. Could that have been on the 12th or 15th of May?
20 A. It may have been. It's around the middle of May more than
21 anything else. I don't really remember, because I receive mail quite
22 often and a lot of it, so I believe that it was around the -- around
24 Q. Do you have your own ports or your internet domain where you
25 publish certain things and, if so, what is it?
1 A. The only web page which I use was www.domagojmargetic.com. At
2 this moment, I am using the blog to write, but I'm not discussing any
3 topics associated with this. I'm writing about the situation, the
4 internal political -- regarding the internal political scene in Croatia
5 and its economy.
6 Q. Can you tell the Bench when was it that you published this list of
7 witnesses who were protected witnesses in the Blaskic case? Did you do
8 that and, if so, when?
9 A. Yes, in May after I had received this CD on which it was
10 written "disclosure."
11 Frankly speaking, I thought that that in a way was a sort of
12 provocation of me as a journalist in order to actually prompt me to
13 publish confidential material, and at that point I did not wish to publish
14 it. And as we all know, for two months, a bit more than that, I actually
15 did not publish this document at all.
16 However, in mid-July, I came across a decision published on the
17 internet. It was a decision in the case against my colleague, Mr. Josip
18 Jovic, and the gist of it was that this list -- that those lists, in fact,
19 in the case against Mr. Jovic had been already made public as an exhibit
20 and the number of the exhibit was 18. It was a public exhibit. And at
21 the time I thought that this was really a public document, a document in
22 the public domain, because this is indeed what happened with the witness
23 in the same case. And I thought that the Trial Chamber, in the case
24 against my colleague Mr. Jovic, as it had in my case earlier, decided to
25 lift the protective measures for those witnesses.
1 Q. Which witness are you referring to who had his protective measures
3 A. In a previous trial we were indicted for violating the protective
4 measures against Stjepan -- imposed on Stjepan Mesic, the president of
5 Croatia, and in the course of the trial the protective measure was lifted
6 in his case, and I thought that in the case of my colleague Mr. Jovic the
7 Trial Chamber had actually done the same thing.
8 Q. Would you have published this list had you not seen this
9 information on the internet?
10 A. I would like to tell the Chamber for two months I did not publish
11 this list. I had the list in my possession. Had I wanted, had it been my
12 intention to endanger those witnesses in any way, to commit contempt of
13 court, I would have done it in those two months. After this decision on
14 the 11th of July, I believed that the Court had decided that, and this can
15 be seen from the decision of the 22nd of August.
16 On the 22nd of August, Judge Robinson issued a new decision
17 that -- to the effect that those two lists were put under seal, and that
18 was done only on the 22nd of August. And in this decision by Judge
19 Robinson there is a quote where it is said that the Prosecution has not
20 explicitly stated that these documents were confidential and under seal.
21 I believe that we did submit this, that we tendered this decision, so I
22 thought really that I was not violating any orders. And it was absolutely
23 not my intention to commit contempt of court in any way.
24 Q. Let me go back to the key issue. Did you publish, where did you
25 publish, and when did you publish this?
1 A. I published the list, if I remember correctly, on the internet
2 page www.domagojmargetic.com. That was on the 23rd of July this year. So
3 12 days after the decision that made me -- led me to believe that this
4 list was in fact the public Exhibit number 18. And the decision that --
5 that followed on the 22nd of August indicates that there had been some
6 confusion even in the minds of Judges. There probably was some kind of a
7 clerical confusion within the Tribunal itself which caused this decision
8 to be actually issued.
9 Q. Domagoj, did you give any statements or interviews to HINA news
10 agency either on the 1st of August or on the 2nd of August or on any other
11 date before or after that one regarding the publication?
12 A. The only statement that I gave to my colleagues is I informed them
13 that I had been summoned to the county court in Zagreb where I was to
14 accept service of an order from a Judge of the Tribunal, and I told them
15 that I would come to the court to accept service.
16 And I definitely did not give an interview to the HINA news
17 agency. I did give an interview the next day or the next night to
18 Vecernji List newspaper.
19 Q. So you did not give an interview to HINA.
20 A. No. I only gave an interview to a journalist from Vecernji List
21 daily newspaper. And I think it was actually published in Croatia that
22 was -- that was published on the 5th of August, which is the day of
23 homeland thanksgiving and the day of victory. It was the holiday issue.
24 Q. After you were in placed in detention by the county court in
25 Zagreb, were you informed about the measures that were taken or the orders
1 that were issued by this Tribunal to prevent you from publishing the list,
2 the confidential information, and if yes, what did you do about it?
3 A. When I learned that I had to come to the county court pursuant to
4 their summons, I was at the seaside, and I travelled from the coast to
5 Zagreb in order to heed the summons from the county court in Zagreb, and
6 then there was this story launched by the journalists, and my colleagues
7 told me that this summons -- that the summons actually pertained to an
8 order issued by the Tribunal regarding the protected witnesses. So they
9 cooked up this story.
10 And as soon as I arrived in Zagreb, I removed the list of
11 protected witnesses from my web site, because at that moment it became
12 clear to me that the decision of the 11th of July that there was something
13 amiss with it.
14 Before I actually came to the court, that was on the morning of
15 the 4th of August, at 9.00, I -- that's when I came to the county court,
16 and before that I had already removed the list from my web site, and I
17 actually said that to the judge of the county court in Zagreb, in my
18 testimony, and she was able to satisfy herself that really this was
19 removed from my web site, that the list was no longer there.
20 Q. How long did you spend in the detention unit of the county court
21 in Zagreb?
22 A. On the 4th of August, in the afternoon, that's -- I was arrested,
23 and I would like to let the Judges of the Tribunal know that the -- that
24 the order issued by this Tribunal was in fact abused, in a way, to such an
25 end that I was in the end arrested as a common criminal in my own country.
1 I reported to the police in Slavonski Brod myself because I was on
2 my way to Vukovar where I was supposed to do some publicity for a book --
3 JUDGE ORIE: Mr. Miljevic, you asked about the length of the
4 detention. I missed, as a matter of fact, the relevance of that issue at
5 this moment in this case.
6 The witness is now explaining further, going in quite some
7 details. I would like you either to guide him to a point of relevance or
8 to move to your next question.
9 MR. MILJEVIC: [Interpretation] Thank you. I didn't think that he
10 would go into so many details. The purpose of my question was the
12 Q. Domagoj, can you please tell the Judges whether you expressed your
13 readiness to accept service of any orders issued by the Tribunal?
14 A. Let me clarify something for you, Your Honours. At no time did I
15 refuse to take service of the -- any of the orders of the Tribunal. This
16 is an untruth, and this was told the Tribunal by the Croatian authorities.
17 I tried to calm the situation down in Zagreb through the president
18 of the Croatian Helsinki Committee but to no avail. I merely wanted the
19 county court in Zagreb to abide by its own procedure as it does in all
20 other cases, and I said I will take service, take receipt of this order
21 just as I had before from the Tribunal. Every time I came to the county
22 court I took receipt of all the documents served on me. And this is --
23 you have written proof of that at the county court.
24 Despite that, they informed the Tribunal that I had refused to
25 take receipt of the order, which is completely untrue. And after I ended
1 up in detention, I wrote the Tribunal because I wanted to make -- make it
2 clear that I did not want to be responsible of contempt of court, that
3 I -- I merely wanted to apologise and to promise that I will not do that
4 again, because I was misled. I had been misled by the decision published
5 on the 11th of July.
6 Q. One of my last questions, or indeed the last question perhaps:
7 Did you have any intent to commit contempt of court and, if not, what was
8 your intent when you published this list?
9 A. After I was led to believe by the decision of the 11th of July
10 that this list was in fact the public exhibit number 18, as an
11 investigative journalist I of course went through the names on this list,
12 and I compared this to not only some documents originating from Bosnia and
13 Herzegovina but also from the international community, and I discovered
14 that four witnesses from this list were at the same time listed as
15 suspects, participants of various terrorist organisations in Bosnia and
16 Herzegovina. And this is an area that I am interested in, a book I -- I
17 published a book quite recently about Islamic terrorism in Bosnia and
18 Herzegovina, in south-east Europe, and it is dealing with those terrorist
19 organisations that infiltrated Bosnia and Herzegovina over the past 15
20 years and participated in the war there.
21 As an investigative journalist, once I was led to believe that
22 this was the list that was made public as a public exhibit number 18, it
23 was interesting to me to discover that protected witnesses called by the
24 Prosecution are at the same time suspected of participating in terrorist
25 organisations by some other organisations.
1 It was also my intent to prove that one witness who is not a
2 protected witness anymore had actually given false testimony before this
3 Tribunal. This was Stjepan Mesic, Mr. Stjepan Mesic, who was a protected
4 within before this Tribunal. In one of the trials, which was the Blaskic
5 trial, as he testified and as he was asked by the Trial Chamber whether he
6 knew the name of at least one soldier that participated in the war in
7 Bosnia and Herzegovina and was forced to do so, in other words, that was
8 forcibly mobilised --
9 JUDGE ORIE: Mr. Miljevic, I think the issue at this moment is
10 whether it was protected material, yes or no. If it was protected
11 material, then for whatever motive, to please his neighbours or to do a
12 favour to anyone else, that is not the reasons of publication. It may
13 have some impact perhaps on sentencing if someone is found guilty, but
14 apart from that not relevant.
15 Mr. Margetic has clearly explained to us at this moment that he
16 feels that it's his duty as an investigative journalist to give expression
17 to what kind of witnesses are protected in this Tribunal. He seems to be
18 of the opinion that many of them should not be protected. That's
19 difficult to judge upon if you do not know why they are protected
20 witnesses, but let's leave it for that. Further details on why witnesses
21 should not have been protected are at this moment not relevant. It's
22 clearly understood what Mr. Margetic moved when he published the material.
23 Please proceed. It was your last question you said before. Is
24 that -- Mr. Margetic, if you would like to finish your answer but without
25 going into details on whether Witness X, Y, or Z would properly be
1 protected or not. It's finally this court who decides that and not the
2 investigative journalist.
3 Is there anything else you'd like to add to your answer?
4 THE WITNESS: [Interpretation] Well, I think that I put in the most
5 important thing, and this is the fact that from the period of the 11th of
6 July to the 22nd of August I believed this document to be in the public
7 domain, and that is the main reason why I published it, because I was
8 convinced that in this period, 11th of July, 22nd of August, I believe
9 that list to be the public exhibit number 18.
10 MR. MILJEVIC: [Interpretation] I don't have any further questions.
11 I have to admit that I myself did not know where this question would take
12 my witness, but this is my last question. I have no further questions for
13 this witness.
14 Thank you.
15 JUDGE ORIE: Before I give an opportunity to the Prosecution to
16 cross-examine the witness, I would have one question to clarify.
17 You said you learned about what you call the 11th of July decision
18 mid-July on the internet. Do you remember on what web site you found that
20 THE WITNESS: [Interpretation] I think that the link was mentioned
21 in our pre-trial brief, if I'm not mistaken, but I think it was either one
22 of the web sites of the Tribunal or a web site that was in some way linked
23 with the Tribunal web site.
24 Your Honour, I know that the -- that I reached this material when
25 I was looking for all the materials relevant for the trial of my colleague
1 Mr. Jovic on the internet. So when I searched the internet for that I
2 found it.
3 JUDGE ORIE: Yes. Now your answer is a bit ambiguous. You start
4 saying that you found it on the web sites of the Tribunal. You said
5 either of the two, or at least a web site linked to the Tribunal, and
6 finally now you say, "I found it somewhere on the internet." Now, what --
7 could you be more precise in your answer?
8 THE WITNESS: [Interpretation] Your Honour, I think that the exact
9 link is provided in our pre-trial brief. I don't know it by heart, but --
10 JUDGE ORIE: If you would say, "In our pre-trial brief I stated,"
11 then Mr. Miljevic is invited to review the pre-trial brief so that the
12 Chamber could be informed about where exactly to find the reference to the
13 internet site where Mr. Margetic found the -- what he calls the 11th of
14 July decision.
15 Mr. Margetic, what is in your pre-trial brief is not evidence.
16 Therefore, I asked you, but I now do understand that you say, "It's
17 written down in our pre-trial brief, and that's what I remember to be
18 correct." Is that well understood?
19 THE WITNESS: [Interpretation] Yes, that's right.
20 JUDGE ORIE: Then the Prosecution has an opportunity to
21 cross-examine the witness. And perhaps as some guidance there is quite
22 some material now in evidence which gives, to say the least, a different
23 impression of what Mr. Margetic had on his mind when he published the
24 list. The Chamber is aware of that.
25 Please proceed.
1 Cross-examination by Ms. Sutherland:
2 Q. You stated earlier in your evidence that you did not receive the
3 letter of the 6th of April from the Office of the Prosecutor; is that
5 A. Yes.
6 MS. SUTHERLAND: Can the witness be shown -- can the accused be
7 shown Exhibit 3, please.
8 Q. So you say you didn't receive that letter?
9 A. No. I really never received a letter like this. I saw a quote
10 from this letter being mentioned in the indictment, but I never received a
11 letter such as this.
12 Q. And before you received the Rule 65 ter -- sorry, before you
13 received the supporting material in this case on the 13th of October,
14 you'd never seen that letter before?
15 A. Never.
16 MS. SUTHERLAND: Can the witness be shown a document, please, a
17 new document, and if it can be marked as the next Prosecution Exhibit. I
18 think it's number 28.
19 JUDGE ORIE: Madam Registrar --
20 MS. SUTHERLAND: Sorry, 32.
21 JUDGE ORIE: Well, let's leave it in the hands of Madam Registrar.
22 She's very accurate.
23 THE REGISTRAR: It will be Exhibit 32, Your Honour.
24 JUDGE ORIE: Yes.
25 MS. SUTHERLAND:
1 Q. Mr. Margetic, this is an e-mail from you sent on the 10th of
2 January, 2006, to a number of different recipients. That e-mail address,
3 that's an e-mail address that you regularly use?
4 A. Yes. It's accurate.
5 MS. SUTHERLAND: Could the witness be shown another document,
7 THE REGISTRAR: It will be document 33.
8 MS. SUTHERLAND:
9 Q. Mr. Margetic, again the -- it's an e-mail from you dated the 17th
10 of March, 2006, to a number of different recipients, again from your web
11 site; is that correct -- your e-mail address?
12 A. Yes. That's the way it seems.
13 MS. SUTHERLAND: Your Honour, this document is the -- the text of
14 the document is in B/C/S, but we don't seek to tender it for the contents
15 of the document, simply for the e-mail address at the top of the document.
16 JUDGE ORIE: Yes. So then we assign a number to it.
17 MS. SUTHERLAND: It's number -- Exhibit 33.
18 JUDGE ORIE: Yes, 33. Yes, please.
19 MS. SUTHERLAND: Could the witness be shown another document.
20 Q. Again, Mr. Margetic, if this is -- looking at the next document,
21 which is an e-mail from you on the 20th of April, 2004, again from your
22 regular e-mail address to a number of recipients?
23 A. Yes, that's the way it seems.
24 MS. SUTHERLAND: Could the witness -- the accused be shown
25 another --
1 JUDGE ORIE: I take it we now have three documents to identify
2 what seems to be the e-mail address of Mr. Margetic. I take it you will
3 not present another five, six or seven.
4 MS. SUTHERLAND: One more, Your Honour.
5 JUDGE ORIE: One more, about the content or just --
6 MS. SUTHERLAND: The e-mail address.
7 JUDGE ORIE: Yes. Is there any dispute about this being the
8 e-mail address used by Mr. Margetic, as was said before, or is there any
9 time issue involved?
10 MS. SUTHERLAND: Your Honour, I'd rather this one also be shown to
11 the witness.
12 JUDGE ORIE: Yes, but I think I was clear that as far as matters
13 stand now, both the evidence Mr. Margetic gave and the three documents at
14 least give a good suspicion for accepting that this is Mr. Margetic's
15 e-mail address.
16 MS. SUTHERLAND: Yes. And next document I wish to show him is a
17 very crucial e-mail.
18 JUDGE ORIE: Okay. Please proceed.
19 MS. SUTHERLAND: And so the last document is marked Exhibit 34?
20 JUDGE ORIE: Yes, madam --
21 THE REGISTRAR: Yes, that will be Exhibit 34.
22 JUDGE ORIE: Madam Registrar confirms that.
23 MS. SUTHERLAND:
24 Q. Looking at the next document is an e-mail address -- an e-mail
25 from Sebastiaan van Hooydonk on the 3rd of April, 2006, to you at your
1 email@example.com e-mail address which you have advised the Court
2 that that was your regular address. The e-mail reads: "Dear
3 Mr. Margetic, please find attached a letter from Mr. Akerson re disclosure
4 of 65 ter exhibits. Stop. The hard copy of this letter and the CD
5 containing the material will be sent to you today. Kind regards,
6 Sebastiaan van Hooydonk, ICTY OTP/TSU," and then the address of the
7 Tribunal and the telephone number.
8 A. Am I supposed to answer?
9 Q. No. I haven't finished my -- I was simply setting out what the
10 e-mail content was about.
11 And attached to this e-mail was the letter dated the 6th of April,
12 2006, which was addressed to counsel for Mr. Jovic, counsel for
13 Mr. Krizic, counsel for Mr. Seselj, and yourself. This is the same copy
14 of Exhibit number 3 which is in this case. The letter is from David
15 Akerson, Office of the Prosecutor, and it says: "Please find enclosed
16 Rule 65 ter exhibits and translations that are additional to the previous
17 to the 1st December, 2005 disclosure. If you have any questions about any
18 of this, please don't hesitate to contact me directly.
19 "Again, this material is subject to oral and written
20 non-disclosure orders. None of this material is to be used or disclosed
21 for any purpose not directly related to the preparation and presentation
22 of the above-titled cases. It may not be used for any other purpose --"
23 JUDGE ORIE: Is there really a need to read it again? I mean,
24 it's the same document as is already in evidence. We are very limited in
1 MS. SUTHERLAND: I'll move on, Your Honour.
2 JUDGE ORIE: Please proceed.
3 The question, of course, Mr. Margetic, is did you receive this
4 document by e-mail as an attachment to the -- the e-mail shown to you,
5 addressed to your e-mail address? Did you receive it as an e-mail?
6 THE WITNESS: [Interpretation] No, Your Honour. The first time I
7 set eyes on this document was when I arrived at the Tribunal. I have no
8 reason to tell anything but the truth about this.
9 JUDGE ORIE: Your answer is clear. You said you didn't receive
11 Please proceed.
12 MS. SUTHERLAND: Could the witness be shown Exhibit 18, please.
13 JUDGE ORIE: We really are on very serious time restraints. The
14 Chamber is even considering to make closing arguments a written exercise
15 rather than in court because we have to stop in no more than 20 minutes
16 from now on. There's another trial which has to continue in this
18 Yes. Exhibit 18.
19 MS. SUTHERLAND:
20 Q. Mr. Margetic, that Vecernji List newspaper article says that you
21 got the list from Mr. Akerson, doesn't it?
22 A. That's correct. Mr. Akerson was in charge of the last case
23 against Croatian journalists on behalf of the OTP.
24 Q. The picture of the CD in that Exhibit 18 shows -- shows a copy of
25 the CD, and you've also mentioned earlier today that it had the case
1 number and a Rule 65 ter disclosure. So how do you know that you got the
2 material from Mr. Akerson if you didn't receive that letter with the
3 warning that the material was -- contained orders for non-disclosure?
4 A. As I pointed out before, Mr. Akerson was the senior trial attorney
5 on behalf of the OTP in the last case against Croatian journalists, and he
6 submitted to us all the materials that were related to the proceedings and
7 the trial. He and no one else. That was the only logical conclusion that
8 I was able to draw.
9 If I'd had that particular letter, don't you think that instead of
10 a scanned surface of a CD it would have been the list? I simply didn't
11 have the list. When I arrived at the Tribunal was the first time I set
12 eyes on it.
13 Q. I put it to you you're lying and you did receive the letter.
14 A. Erroneously, if I may say. I'm really sorry, but could I please
15 ask you to try and not insult me.
16 Q. You knew the list was confidential when you published it, didn't
18 A. Not true. I pointed out to the Trial Chamber what my position was
19 regarding the publishing of that list.
20 Q. If you were so convinced that the list was public because of this
21 purported 11 July 2006 order, which no one has been able to locate, then
22 why did you define it in your articles as a confidential list if you were
23 convinced that the list was public?
24 A. It had been confidential. You know, we journalists always apply a
25 certain method when we write about something, when we discover something
1 when, we publish a document that used to be confidential up until a short
2 time before, if we're dealing with state secrets, it is a secret because,
3 de facto, the first time it's published is when journalists get hold of
4 it, and then a state body allows for it to be published. This is a very
5 common MO among us journalists. That's how we write and nothing more.
6 JUDGE MOLOTO: What does "MO" mean?
7 THE INTERPRETER: Interpreter's note: Modus operandi.
8 JUDGE MOLOTO: Thank you.
9 MS. SUTHERLAND:
10 Q. Mr. Margetic, right up until the 12th of September you were still
11 referring to this as a confidential list, secret list, protected witnesses
12 list. You knew that it was protected. You knew that it was confidential,
13 and you disclosed this document in knowing violation of Tribunal orders.
14 A. That is simply not true. That's what I'm telling you. When a
15 document is published, that's what journalists do. If you look at
16 American journalism, you have cases like that all the time. The secret
17 services disclose a document after 20 years. The editors and journalists
18 publish that document which is now in the public domain because the state
19 says so, and then the journalists describe it as a secret FBI document,
20 for example, or a secret document coming from the judiciary and so on and
21 so forth. It used to be a classified document but now a state body has
22 allowed for this document to suddenly become public so you have
23 journalists publishing it. It's just how journalists work and how they
24 tackle their topics.
25 I explained my motives in great detail and with the utmost
1 sincerity. I thought the list was public Exhibit number 18 dated the 11th
2 of June.
3 Q. And so all the --
4 A. The 11th of July.
5 Q. -- protective measures that were contained on that witness list,
6 you thought all -- that the Tribunal had lifted all orders in relation to
7 all 48 witnesses, did you?
8 A. That was my understanding. That was my understanding of the
9 document I found on the internet. And it follows, doesn't it? If you
10 look at the ruling dated the 20th of August, it is clear that there was
11 some sort of a mistake, and I wasn't the only one making it. The Tribunal
12 was making it too.
13 JUDGE ORIE: The Chamber is interested in facts, not in whether
14 they are logical or not. Sometimes facts are not logical. Sometimes they
16 Please proceed. That's argumentative.
17 MS. SUTHERLAND:
18 Q. Mr. Margetic, there is no 11 July decision in relation to this
19 witness list, and I put it to you that you're lying. You know -- you knew
20 that the document was confidential when you published it. You knew that
21 the witnesses were protected, and you published it because you wanted to
22 do it. You wanted to out all of these witnesses who testified against the
23 Croat General Tihomir Blaskic. Isn't that right?
24 A. That is entirely erroneous. I don't even know Mr. Blaskic
25 personally. Therefore, your suggesting that I would do that is entirely
1 erroneous. You're entirely off the mark.
2 Why would I have done that? Could you at least explain why I
3 would have waited for two months in that case? If what you're suggesting
4 is true, I would have published the list in May. I wouldn't be waiting
5 for July, in fact until past the 11th of July.
6 Q. I'm suggesting that you waited until days after the indictment
7 against you was withdrawn. Knowing that there was no indictment hanging
8 over your head you thought, Well, let's go out and publish the witness
9 list today. Didn't you?
10 A. But that is just not true. The indictment against me was
11 withdrawn nearly two months after I received the list, or a month later
13 That is just untrue. How could I possibly have known that the
14 indictment would be withdrawn in June?
15 Q. Mr. Margetic --
16 A. Nobody could have known. I was taken aback by that particular
17 piece of news.
18 Q. That's my point. You got the information on the 6th of April.
19 You were told it was confidential. You waited until the indictment
20 against you was withdrawn on the 20th of June, 2006, and then within days
21 thereafter you published the witness list on the web site.
22 A. Madam, that is just not true. What I told you was the truth. I
23 told you exactly what had happened.
24 Q. Okay. Let's move on.
25 JUDGE ORIE: Please move on, yes.
1 MS. SUTHERLAND:
2 Q. You say that the reason why you -- you published this list was
3 because you wanted people to know the truth. You wanted people to know
4 that these witnesses had given false testimony; is that right?
5 A. The job of any journalist is to write the truth. That's what I
6 believe. As I started saying a while ago, I proved that a particular
7 witness of the OTP was no longer a protected witness, Mr. Stjepan Mesic,
8 as a then protected witness of the OTP gave evidence to this international
9 court and to the international public that was simply false, and
10 judgements were later based on his evidence, important ones at that.
11 Q. Let's talk about Mr. Mesic's evidence. How did you know it was
12 false testimony? Did you read it, the Blaskic testimony?
13 A. Do you think I have enough time to explain to you why I knew that
14 his evidence was perjury, in fact. It wouldn't take longer than two
16 Q. The question was: Did you read Mr. Mesic's Blaskic testimony,
17 yes or no.
18 A. What you're asking me is --
19 Q. [Previous translation continues] ...
20 A. -- how I knew that Mr. Mesic was lying.
21 JUDGE ORIE: Mr. Margetic, the question was whether you have read
22 the testimony of Mr. Mesic in the Blaskic case. That was the question.
23 THE WITNESS: [Interpretation] Yes, I cross-referenced it with the
24 Milosevic case evidence, and I realised that in one of those two trials
25 Mesic was in fact lying.
1 MS. SUTHERLAND:
2 Q. And who provided with you a copy of Mr. Mesic's Blaskic testimony?
3 A. As you probably know, the first to publish the evidence of
4 Mr. Mesic at the Tribunal were the Tribunal people themselves, but then
5 they subsequently removed this document from their page.
6 JUDGE ORIE: Mr. Margetic, would you please answer the questions.
7 The question was: Who provided you a copy of the Mesic testimony in
8 Blaskic? Simple question. Simple answer, please.
9 THE WITNESS: [Interpretation] The evidence that Mr. Mesic gave in
10 the Blaskic case was one of the documents that could be accessed on a
11 Serbian web page, an agency called Veritas, led by Mr. Savo Strbac.
12 JUDGE ORIE: The question is did you receive it from there or did
13 you receive it from anywhere else? It's not where it was accessible but
14 where you got it.
15 THE WITNESS: [Interpretation] Not only did I obtain Mesic's
16 evidence in that way but also a whole lot of other foreign journalists. I
17 believe a number of British journalists wrote about that.
18 MS. SUTHERLAND:
19 Q. It was closed session testimony. How did you know there was other
20 false testimony of the other witnesses --
21 JUDGE ORIE: Ms. --
22 [Trial Chamber confers]
23 THE WITNESS: [Interpretation] How did I know? Because --
24 [Trial Chamber confers]
25 JUDGE ORIE: Ms. Sutherland, whether or not the witness takes the
1 position that it was false testimony in this case we'll not be able -- and
2 it might not be that relevant whether it's for the full hundred per cent
3 truth. So therefore, unless you could explain what is the relevance, I
4 said before that the reasons why are not that important. It's mainly what
5 has been done or not.
6 MS. SUTHERLAND: Your Honour, this issue goes to Rule 77(A)(iv),
7 the interference with the witnesses. If I can just have a few questions
8 on this topic.
9 JUDGE ORIE: Yes. The problem is we have eight minutes left for
10 the whole of the day, or we'll have to adjourn again.
11 [Trial Chamber confers]
12 JUDGE ORIE: Mr. Miljevic, would you have any additional questions
13 as far as matters stand at this moment?
14 MR. MILJEVIC: [Interpretation] I have asked all the questions that
15 I meant to ask.
16 The accused at one point started deviating from the subject of his
17 book, so the last thing I wanted to ask him if in his trial brief he also
18 enclosed his own book and whether there was an English translation.
19 That's the only thing I forgot at the time.
20 JUDGE ORIE: Ms. Sutherland, how much time would you still need?
21 MS. SUTHERLAND: Five minutes, Your Honour.
22 JUDGE ORIE: Five minutes. I'll strictly keep you to that then.
23 MS. SUTHERLAND:
24 Q. If you can answer my questions --
25 THE INTERPRETER: Microphone, please.
1 MS. SUTHERLAND:
2 Q. If you can answer my questions and keep your answers brief I would
3 appreciate it very much.
4 Can you explain to the Court how you were able to tell which of
5 the 48 witnesses gave false evidence?
6 A. The same as the reasoning applies as in the case of Mr. Mesic. I
7 cross-referenced their evidence before the Court. Most of this was in
8 open session, so we as journalists can cross-reference their testimony,
9 much like you do. We check it for consistency about one and the same
10 circumstance or, if, rather, they were beating about the bush and talking
11 nonsense instead.
12 Q. By looking at names on that witness list, how could you tell that
13 they provided false testimony simply by their names, apart from Mr. Mesic,
14 who you've already discussed?
15 A. The question regards circumstances in Bosnia and Herzegovina.
16 I've been following that over a long period of time, and I've written
17 pieces about it. I have a whole network of people informing me about what
18 goes on in Bosnia and Herzegovina. It was much in the same way that I
19 found out that certain people had cooperated with the Bosnian intelligence
21 Q. Mr. Margetic --
22 JUDGE ORIE: Mr. Margetic, simple question. Did you have sound
23 reasons and, if so, where did you get them that the 48 witnesses, or at
24 least the over 40 witnesses with a protected status, at least at a time,
25 whether they were all lying, whether they were all false witnesses?
1 The question is quite simple. Is it that you say Mr. Mesic lied
2 and therefore we have to expose this because the others may have lied, or
3 do you have information about the others lying in court, the others who
4 enjoyed protective measures? For all of them.
5 THE WITNESS: [Interpretation] All right. My first motive was not
6 to publish a list that was protected. I thought it was a public list.
7 Secondly, I had reliable, serious information that those witnesses
8 had been proved by the Bosnian intelligence services and that special
9 briefings had been done to guide them in terms of their testimony,
10 evidence, and lies before this Tribunal.
11 These are serious matters that I'm telling you. My information
12 was reliable and serious and the matter is indeed very serious.
13 MS. SUTHERLAND:
14 Q. Mr. Margetic, in your official statement, which is Exhibit 25, you
15 state the reason why you published the witness list in part was to reveal
16 to the world that some witnesses were in fact Mujahedin or better known to
17 the world as terrorists. "In light of the anniversary of 9/11, it is
18 important that the public to know with whom the ICTY were working with to
19 prosecute Blaskic."
20 You wanted to single those people out, didn't you, for the fact
21 they testified against Blaskic. You didn't care what repercussions became
22 for any of those witnesses, did you?
23 A. This is completely untrue, madam. I am a Catholic, and I care
24 deeply for all human beings, and as a religious person I cannot disregard
25 the fate of other people. The fate of every human being is important to
1 me, and here you're completely in the wrong.
2 Q. In an accompanying article to the witness list, you stated that
3 you would sooner or later publish the confidential document because you
4 have done before. You would always do it regardless of the people in
5 question. You didn't care. You wanted -- you wanted to put this witness
6 list out there because you wanted to single these people out.
7 A. This is simply not true, madam. The reasons why I published this
8 list were presented by me several times here. A journalist has certain
9 responsibility once he or she obtains certain documents, and I have
10 already told the Trial Chamber that I have absolutely no intention of
11 publishing any documents originating from this Tribunal, public or
12 confidential, and I promised the Trial Chamber that I will abide by the
13 order that was issued by -- by His Honour Judge Orie, and I in fact did
14 that. I complied with all the orders issued by this Tribunal.
15 JUDGE ORIE: Yes. I gave you five minutes. These five minutes
16 are gone.
17 MS. SUTHERLAND: Thank you, Your Honour.
18 JUDGE ORIE: Yes. Now, Mr. Miljevic, you said you had no further
19 questions. You had forgotten one question in the first round, although
20 re-examination is not there to put questions you forgot to put in the
21 first round. Therefore, I take it that the cross-examination didn't raise
22 any issue on which you'd like to further examine the witness. Is that
24 MR. MILJEVIC: [Interpretation] Out of respect for the Tribunal, I
25 said that I forgot, but in fact you, Your Honour, intervened when my
1 client moved from his book on Islamic terrorism to Stjepan Mesic, and this
2 is why I did not insist on the matter, and I didn't ask what I had
3 originally intended, in other words, whether this book was published,
4 whether it was translated into English, and whether it was in fact
5 appended to the pre-trial brief. So this is just one sentence.
6 JUDGE ORIE: Yes. So you let this issue go? If so, then Mr.
7 Margetic should take his place again, but --
8 JUDGE ORIE: Although the Trial Chamber did its utmost best --
9 what I didn't say is that if so then you would have to move. We are not
10 there yet, Mr. Margetic, but remain for a second where you are at this
12 The Trial Chamber thinks that it's inappropriate now to try to
13 finalise this in such a hurry that the -- that the Trial Chamber would
14 feel that time became more important than truth. Therefore, the Trial
15 Chamber decides that we'll adjourn for the day. We'll find another date
16 where we'll finalise the examination of Mr. Margetic as a witness, where
17 perhaps additional questions will be put to him by the Bench, where,
18 Mr. Miljevic, the question we found no time for today may be put to him if
19 that would not go too far beyond what can be done in re-examination, of
20 course I do not know exactly what it is. So therefore we'll have to take
21 more time to conclude this case.
22 [Trial Chamber confers]
23 JUDGE ORIE: If we are adjourning at time-limits as imposed also
24 on the Prosecution would then be reconsidered as well.
25 There's one issue, however. Usually if an accused takes the stand
1 he is not allowed to have contact with counsel when his testimony has not
2 been finished yet. Should we apply that rule in these circumstances?
3 MS. SUTHERLAND: In our submission yes, Your Honour.
4 JUDGE ORIE: Yes. Mr. Miljevic, there is a rule which is usually
5 applied that someone who has taken the stand should not consult with
6 counsel up till the moment that he finished his testimony. Are you aware
7 of this rule?
8 MR. MILJEVIC: [Interpretation] Yes, I am aware of this rule, and I
9 can abide by it.
10 JUDGE ORIE: You say there's no objection this rule to be applied.
11 Of course then we'll try to adjourn -- to seek another day as soon as
13 MS. SUTHERLAND: Your Honour, we would ask the Chamber to make
14 a -- give the accused a warning that he should not publish anything to do
15 with these proceedings between now and when he comes back for further
17 JUDGE ORIE: I see Mr. Margetic already nodding yes.
18 Mr. Margetic, could you confirm that you will not, even without an
19 order of the Chamber, that there's a commitment that you will not publish
20 anything? That would be the only reason why the Court would not give you
21 an order. Yes. Your microphone is not on.
22 THE ACCUSED: [Interpretation] Your Honour, Mr. President, I
23 undertake not to discuss the proceedings in any way, and you can see that
24 I have not published anything about the Tribunal or the proceedings in my
25 blog, and I have absolutely no intention of discussing the proceedings
1 with anyone. I will comply fully with the order that I have already
2 received from you, Your Honour.
3 [Trial Chamber confers]
4 JUDGE ORIE: That's then well understood.
5 The Chamber will consider and inquire into when this trial could
6 be finished. It might not take very long the next session, perhaps one or
7 two hours. It has the advantage that we can hear oral final argument by
8 the parties, which is preferred by this Chamber above written final
10 We stand adjourned sine die.
11 --- Whereupon the hearing adjourned 4.18 p.m.