1 Friday, 9 February 2007
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 4.12 p.m.
6 JUDGE MOLOTO: Good afternoon to everybody. May the Registrar
7 please call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case number
9 IT-06-90-PT, the Prosecutor versus Ante Gotovina et al.
10 JUDGE MOLOTO: Thank you very much. Welcome to everybody and may
11 we please get the appearances the parties, please. Prosecutor,
12 Mr. Tieger.
13 MR. TIEGER: Good afternoon, Mr. President and Your Honours. Alan
14 Tieger and Laurie Sartorio, with case manager Donnica Henry Frijlink for
15 the Prosecution.
16 JUDGE MOLOTO: Thank you very much. For the Defence of General
18 MR. KEHOE: Good afternoon, Your Honours. Greg Kehoe and
19 Luka Misetic for General Gotovina.
20 JUDGE MOLOTO: For the Defence of Mr. Cermak.
21 MR. PRODANOVIC: [Interpretation] Good afternoon, Your Honours.
22 General Cermak is represented by myself, Cedo Prodanovic, and my
23 colleague, Ms. Jadranka Slokovic.
24 JUDGE MOLOTO: Thank you, Mr. Prodanovic. And for Mr. Markac.
25 MR. SEPAROVIC: [Interpretation] Your Honours, the Defence for
1 General Markac is myself, Miroslav Separovic around Mr. Goran Mikulicic.
2 JUDGE MOLOTO: Thank you very much. Before we proceed, can we
3 just make sure that General Gotovina and General Markac and General Cermak
4 can hear us in a language they understand. General Gotovina.
5 THE ACCUSED GOTOVINA: [Interpretation] Thank you, Your Honour.
7 JUDGE MOLOTO: Thank you very much. General Cermak.
8 THE ACCUSED CERMAK: [Interpretation] Thank you. Everything is
9 fine, Your Honour.
10 JUDGE MOLOTO: Thank you very much. And General Markac.
11 THE ACCUSED MARKAC: [Interpretation] Thank you, Your Honour.
12 Everything is fine.
13 JUDGE MOLOTO: Just by way of a preliminary remark to explain the
14 apparent awkward sitting of the Bench, the only reason that I'm sitting in
15 the centre here is because I'm Pre-Trial Judge in this matter, most
16 probably going to sit as the Trial Judge. It is not quite certain that
17 either Judge Orie or Judge Van Den Wyngaert would sit, and that's the only
18 reason that I'm sitting in the centre.
19 The last Status Conference in the present case was held on the 5th
20 of December, 2006; and pursuant to Rule 65 bis of the Rules of Procedure
21 and Evidence, a Status Conference shall be convened within 120 days of the
22 last, in order to organise exchanges between the parties, to ensure the
23 expeditious preparation for trial, and to allow the accused to raise
24 issues in the case.
25 Given today's major agenda items, the alleged conflicts of
1 interests between the various Defence teams and Mr. Cermak's compliance
2 with the conditions of his provisional release, the full Bench is present.
3 And earlier this afternoon, a 65 ter meeting was held with the parties and
4 the senior legal officer of the Trial Chamber I, in preparation for the
5 present hearing.
6 May we just deal, first of all, with the situation on the health
7 of the accused.
8 General Gotovina, do you have anything to say about your own
9 health and conditions of stay in the UNDU?
10 THE ACCUSED GOTOVINA: [Interpretation] Your Honour, thank you for
11 asking me. Everything is fine.
12 JUDGE MOLOTO: Thank you very much, General Gotovina.
13 General Cermak.
14 THE INTERPRETER: Microphone, please. The interpreters cannot
15 hear the speaker.
16 JUDGE MOLOTO: Microphone, Mr. Cermak. The interpreters could not
17 hear you.
18 THE ACCUSED CERMAK: [Interpretation] Your Honours, my health is
19 just fine. Thank you.
20 JUDGE MOLOTO: Thank you very much. General Markac.
21 THE ACCUSED MARKAC: [Interpretation] Your Honours, you know that
22 my health is not good, but the team of doctors is doing their best to
23 reduce my pain or improve my health if that is at all possible. Thank
25 JUDGE MOLOTO: Thank you very much, General Markac.
1 The next item I would like to deal with is the rule 93 bis (D)
2 situation. In its response to the Trial Chamber's request pursuant to
3 Rule 73 bis (D) filed on the 22nd of January this year, the Prosecution
4 stated it was not fully able to consider any possible overlap between the
5 counts, because the Defence has filed a motion seeking to strike certain
6 counts from the joinder indictment. So any discussion of cumulative
7 charging would be premature at this stage until a decision has been
9 Am I capturing the situation of the Prosecution correctly,
10 Mr. Tieger, on that point?
11 MR. TIEGER: On that particular point, Your Honour, I believe so.
12 I'm not sure if the Chamber is directing its attention to the entirety of
13 the motion or seek some clarification on that single point.
14 JUDGE MOLOTO: No, not at all. I just wanted to be sure we have
15 captured you correctly. And you said that in order to do so, the
16 Prosecution would reduce its case by reducing the number of municipalities
17 in the indictment by six and reduce the temporal scope by two months. You
18 also said it was premature to indicate what impact such decision would
19 have on the number of witnesses it may call since the 65 ter witness list
20 is not here completed or submitted.
21 At this point the Chamber is inclined then to order the
22 Prosecution to reduce the indictment as they indicated, and the Trial
23 Chamber reserves the right to review the indictment further and order for
24 more reductions.
25 MR. TIEGER: Yes. The anticipated order was mentioned at the 65
1 ter conference, and I understand the nature of the order.
2 JUDGE MOLOTO: Thank you very much. So the Prosecution is so
3 ordered to reduce the indictment accordingly.
4 The next item is the question of agreed facts. What progress has
5 been made in that direction? May we start with you, Mr. Tieger.
6 MR. TIEGER: Your Honour, there was extensive discussion with
7 respect to this particular aspect of trial preparation at the 65 ter. I
8 can only summarise it briefly, I trust, by indicating that although there
9 have been continuing discussions, we -- I think there was a consensus
10 between the Prosecution and the Defence that in light of the necessary
11 steps to achieve meaningful progress on meaningful agreed facts, there's
12 going to be considerable difficulty in light of the competing demands on
13 both the Prosecution and the Defence between at least now and the
14 submission of the Defence pre-trial brief and which leaves precious little
15 time between than point and trial, much of which I anticipate will be
16 spent at least by the Prosecution in making necessary arrangements and
17 preparation for the commencement of trial.
18 So we have not abandoned that effort. Indeed, Defence counsel and
19 I met into the early evening hours yesterday to pursue that, but the
20 reality is that that effort made clear to us, as it has before, the nature
21 of the process and the steps it requires, including among three Defence
22 teams considerable logistical coordination and contact with their
23 individual clients. And although we will not consciously abandon it,
24 we're not very optimistic.
25 JUDGE MOLOTO: Did I understand you to be saying that the Defence
1 counsel has logistical problems in contacting their clients?
2 MR. TIEGER: No. No, Your Honour. Well, I mean -- what I'm
3 suggesting is that for every step forward, that cannot proceed, as I
4 understand it, from their side - and they're welcome to explain it further
5 themselves - without exchange between counsel and then subsequent contact
6 with the individual clients.
7 I am suggesting that that is a logistical aspect to the nature of
8 agreed facts that plays a significant role in any effort to move forward,
9 but I didn't mean suggest that there are any unusual logistical
10 impediments. Maybe there are, but they'd have to tell you that.
11 JUDGE MOLOTO: Thank you, Mr. Tieger.
12 Mr. Kehoe.
13 MR. KEHOE: Yes, Your Honour. I was the Defence counsel that has
14 been interfacing with Mr. Tieger for the most part on the agreed facts,
15 but the reality is, Judge, with the accelerated trial schedule of May 7th,
16 a meaningful discussion on agreed facts -- there is simply no time for any
17 meaningful discussion on agreed facts.
18 JUDGE MOLOTO: Mr. Kehoe, let's just get things correct here.
19 When you say accelerated schedule, what was it before?
20 MR. KEHOE: Well, I believe that there was notification from the
21 Registry that trial was to be in January of 2008.
22 JUDGE MOLOTO: That's water under the bridge, Mr. Kehoe. We've
23 discussed that.
24 MR. KEHOE: I understand, Judge, but I'm just discussing where we
25 are vis-a-vis agreed facts with the reduced time schedule that we have to
1 prepare this case and to deal with the Prosecution.
2 JUDGE MOLOTO: There has never been a scheduling for January 2008,
3 so there cannot be talk of reduced scheduling.
4 MR. KEHOE: With all due respect, Judge, I do believe a
5 notification came out of the Registry that the Registry was looking at
6 this trial for January of 2008. With all due respect, Judge, I do believe
7 that that was communicated publicly.
8 That being said --
9 JUDGE MOLOTO: Could we have -- are you able to give us a copy of
11 MR. KEHOE: I don't have it personally, but that's my
12 understanding from co-counsel.
13 MR. MISETIC: Your Honour, I -- this is again a public statement
14 that was made by the spokesman for the Prosecutor's office. As I
15 understand it, from A, my counsel and for Mr. Cermak; and B, from the
16 Prosecution, subsequent to the last time we were at a Status Hearing, that
17 information came as part of a schedule that the Registry had put together
18 on what the approximate trial times were.
19 So whether that is from this -- I think we were advised in the 65
20 ter conference in December that there is a committee of the Judges that
21 makes scheduling plans for which case are going to go to trial when, and
22 that that committee decided that we were prepared to go to trial and that,
23 therefore, we should now be ready to go to trial in May of 2007.
24 It was our assumption after that fact, that it was that same
25 committee through the Registry that had approximated the trial dates be in
1 early 2008, but we are talking about information that has been given to
2 Defence counsel for Cermak and, apparently, the spokesman for the
3 Prosecutor's office said that was the trial date. Thank you, Your Honour.
4 JUDGE MOLOTO: Yes. My only comment here is that, Mr. Kehoe, you
5 were talking about a public statement from Registry. Mr. Misetic is
6 talking about a statement from the Prosecution's office. And as for the
7 question of the statement from Prosecution's office, we discussed this
8 extensively at the last Status Conference. The Prosecution did state its
9 position clear that they never made such a statement. I'm not quite sure
10 where we are at this stage.
11 MR. MISETIC: [Interpretation] Your Honour, I believe that's
12 incorrect. I don't think they said that the Prosecutor didn't make -- the
13 Prosecutor's spokesman didn't make that statement; and if that's going to
14 be in dispute, we can produce the statements that were made.
15 I think our position prior to the last Status Conference, we also
16 have to make plans and rely reasonably the organs of the Tribunal when
17 they provide us information about when should be prepared to go to trial.
18 We relied in good faith on those organs of the Tribunal.
19 If there's been a change, I think that's fine. But I think what
20 Mr. Kehoe said in his earlier remarks, accelerated trial schedule from the
21 perspective of the Defence, it has been accelerated given the information
22 that we had prior to that.
23 JUDGE MOLOTO: Maybe I misspoke, Mr. Tieger. Can you tell us what
24 you said to us the last time?
25 MR. TIEGER: Here's my understanding of the circumstances just
1 described, and I haven't revisited that for some time. I'll be happy to
2 double-check to make sure what I say to the Court now is accurate, but my
3 understanding is the following: That at some point there was published,
4 in some newspaper or in some forum, a comment by the OTP spokesperson.
5 That comment was a reference to information received from the Registry and
6 an explicit reference information received from the Registry.
7 So what I -- and, of course, I believe I was asked last time
8 whether the -- the OTP had suggested in any way that it was seeking or
9 determining a trial date, and I indicated that, of course, that wasn't the
10 case. I wasn't personally aware of that particular article. I think it
11 was raised, in fact, by Mr. Misetic at that time, similar to the
12 indications he gave the Court today.
13 I checked on that then to see whether it had been some independent
14 assertion by the OTP spokesperson or speculation, and I learned that it
15 was a reference to information provided from the Registry, and that's
16 about all I can tell the Court and would be happy to double-check it if
17 that's useful to the Court.
18 JUDGE MOLOTO: Thank you very much. I guess the bottom line is
19 that, in fact, there hasn't been any official scheduling of this trial
20 prior to the current scheduling for the 7th of May.
21 MR. KEHOE: I understand, Your Honour, but --
22 JUDGE MOLOTO: Thank you.
23 MR. KEHOE: Can we go back to the 73 bis.
24 MR. KEHOE: Absolutely, Judge, but the fact of the reality is that
25 the first notification that we had of a trial in May of 2007 was Your
1 Honour's comments during the last pre-trial hearing. Now, with what we
2 perceive to be an accelerated schedule and the things that have to be done
3 leading up to that, the Rule 72 motions, overall preparing for trial,
4 preparing, going through matters with our client, it has made it extremely
5 difficult to have a meaningful discussion about agreed facts.
6 For instance, Mr. Tieger and I were talking about one particular
7 witness who has a hundred-odd pages of an ECMM report, in addition to
8 three or four statements. There are any number of issues in there that
9 are problematic, could be stipulated to. But taking the time to go
10 through all of that information, interfacing with Mr. Tieger, then talking
11 to General Gotovina, and talking to the Defence counsel for just one
12 witness is a time-consuming endeavour. And, realistically, being able to
13 do all that, yet at the same time prepare for an impending trial, which is
14 now just several months away, is just simply an impossible task.
15 That's not to say that Mr. Tieger and I and the rest of the
16 Defence counsel won't continue to try to do that. But as far as, as we
17 discussed in the last pre-trial with you, Judge, as far as having a
18 meaningful discussion where we go through agreed facts from A to Z in a
19 case of this magnitude, it's impossible on this current time frame.
20 JUDGE MOLOTO: I guess the Chamber must understand you to be
21 saying that there would be no agreed facts forthcoming, because it is
22 impossible giving the scheduling.
23 MR. KEHOE: I'm not saying it's -- there will be no agreed facts,
24 Judge. We will do our best to agree on as many facts as we can, but there
25 are logistical difficulties not in seeing our clients but in, of course,
1 talking with each other, talking with Defence counsel, talking with
2 clients, them talking with their clients, to arrive at a general
4 It's not something that can't happen, Judge. I don't want to tell
5 you that. I'm just telling you it's a time-consuming process; and given
6 where we are in February the 9th of 2007 with a trial in May of 2007 with
7 all of the facts and circumstances to be presented in this case, it's
8 going to be impossible physically to do all that and yet at the same time
9 prepare for trial.
10 I'm not saying that there will be no facts stipulated to, Judge.
11 I am not saying that. But to do a job which we would normally do to take
12 from A to Z, I just have to be perfectly honest with you, Judge, it's
13 physically impossible given the time constraints that we now have to do
15 JUDGE MOLOTO: At least the record can show that the parties are
16 not only becoming aware of the need for these agreed facts to be submitted
17 today. In the Status Conference in December, this was raised. The
18 parties were aware of this even before the Status Conference of the 5th of
19 December last year that agreed facts are something to be worked on. It's
20 not as if this is something that's new and falling all of a sudden on the
22 MR. KEHOE: And if I can address -- I'm sorry, Judge.
23 JUDGE MOLOTO: No, no. I'm not asking you to address it. I'm
24 just saying, at least, we can put it on the record that that is so. That
25 is fact.
1 MR. KEHOE: That is a fact, Judge, but I think we also have to
2 note that we didn't have the full breadth of all of the evidence that was
3 coming to us from the Prosecution. I mean, we have had a continuing
4 disclosure. I mean, it's been a daunting task from the Prosecution. This
5 is, please, no criticism from anybody from the Office of the Prosecutor in
6 any way, shape, or form, but the disclosure has ban, in fact, a daunting
7 task for them.
8 So getting involved in stipulated facts before complete
9 disclosures are made is likewise a difficult task, because if, in fact, we
10 attempt to agree to something in large issue that subsequent facts that
11 are revealed to us cause us to change our mind, then we're back at square
12 one. And we, Mr. Misetic and I and all the respective counsel, haven't
13 done the work for our clients the way that we're supposed to. So I
14 understand it's been something that's been on the table, Judge, but it's
15 something that hasn't been -- we have not been able to get into
16 meaningfully until we have everything that needs to be addressed.
17 JUDGE MOLOTO: Okay. Just maybe to try and round out the problem,
18 the point, is there any indication that can be given as to when these
19 agreed facts can be expected, from your point of view?
20 MR. KEHOE: From my point of view no, Judge. I gladly turn to my
21 colleague, Mr. Tieger, and see if he has alternate schedule in mind, but I
22 simply don't know at this point.
23 JUDGE MOLOTO: Okay. Mr. Prodanovic, do you have any comments to
24 make on this?
25 MR. PRODANOVIC: [Interpretation] Your Honour, I would just like to
1 remind you that in the Cermak, Markac case, before the joinder, we did
2 start stipulating to agreed facts, and we exchanged our original views.
3 However, since the joinder took place and since we did not have a single
4 indictment, we stopped the procedure. So in a way we have already dealt
5 with this. I think it would be best now if the Prosecutor were to come
6 out with his position on this. What would the possible agreed facts be at
7 this point in time. Of course, we will respond in keeping with our own
9 JUDGE MOLOTO: Thank you, Mr. Prodanovic.
10 Mr. Separovic.
11 MR. SEPAROVIC: [Interpretation] Your Honour, our position is
12 exactly the same to the position of the Defence teams of General Cermak
13 and General Gotovina. I will not repeat the arguments preferred, but only
14 say that, for instance, 41 witness statements have not been translated
15 into Croatian at all. More than 300 documents remain untranslated at this
16 point. How can we discuss the facts that could possibly be agreed, if we
17 do not have all the material? We need to be precise and accurate in
18 discussing these matters.
19 So I subscribe to the positions of my colleagues, and I state at
20 the same time that we will do our utmost to make progress in this
21 direction. Thank you.
22 JUDGE MOLOTO: Mr. Separovic, thank you for what you ever said.
23 I'm a bit startled by the figures that you are throwing around; 41
24 statements and 300 documents. We are coming to those items of disclosure
25 and we'll deal with them when we get there, but I thought the picture was
1 slightly different from what you are painting. But be that as it may,
2 that's fine.
3 The Chamber, well, then still encourages the parties to continue
4 to engage on the question of agreed facts and to try and submit the agreed
5 facts as soon as possible before the start of the trial. I guess that's
6 all the Chamber can say at this stage, just to emphasise the fact that the
7 delay in meeting -- in agreeing on the agreed facts is not anticipated at
8 this stage to shift the start date of the trial.
9 Okay. Preliminary motions under Rule 72 would be the next item.
10 Defendant General Ante Gotovina's preliminary motion to dismiss the
11 proposed joinder of the indictment pursuant to Rule 72, filed on 28th of
12 April 2006, was supplemented on the 18th of January this year by his
13 preliminary motion challenging jurisdiction and his motion challenging
14 defects in the form of joinder indictment; and also by General Mladen and
15 General Markac's joint preliminary motion regarding jurisdiction.
16 The Prosecution's responses to all above-three motions was filed
17 on the 1st of February this year, and the Trial Chamber just wanted to
18 inform the parties that a decision would be rendered shortly.
19 MR. KEHOE: Your Honour, may I be heard on that issue?
20 JUDGE MOLOTO: Yes, you may be heard, sir.
21 MR. KEHOE: This is an issue that, obviously, we think is
22 substantively crucial prior to even moving into the further preparation of
23 this trial, and I think that an examination of our most recent Rule 72
24 motions and the grounds for that as well as the challenges to the
25 jurisdiction -- or to the form of the indictment are compelling. The
1 jurisdictional grounds are quite compelling, and we had asked in our
2 brief, and once again I brought it up with Mr. Pittman at the 65 ter
3 conference this morning, if we can ask for oral argument. Mr. Pittman
4 asked us to agree on a date for that oral argument, and I believe with the
5 OTP, with Mr. Tieger, I believe my fellow Defence counsel said that
6 possibly on the week of February 22nd or the date of February 22nd or
7 23rd, I believe everybody could be present before the Court to argue those
9 I ask the Court for that time because from General Gotovina's
10 perspective and the rest of the Defence, argument on those particular
11 issues are crucial for a proper determination of this case.
12 JUDGE MOLOTO: It is also correct that Defence replies were
13 received yesterday, the 8th of February, on this issue.
14 MR. KEHOE: That's correct, Judge. And there was a supplement
15 that we recently filed because there was some mistake on our part with
16 regard to the word count, and I explained -- brought to my attention by
17 Mr. Tieger - no offence - it was a mistake on our part, but nevertheless
18 we did file a reply yesterday to the Prosecutor's position. But I can't
19 urge enough to the Court the need to go through these, I won't say highly
20 technical, but very significant issues vis-a-vis the differences between
21 Hague law and Geneva law and various other matters as it plays into crimes
22 against humanity.
23 MR. MISETIC: Sorry. I just wanted to clarify one point, Your
24 Honour. We did file a motion for leave to exceed word count this morning,
25 just so the Court is aware of it.
1 JUDGE MOLOTO: Thank you. Is there any reason to have oral
2 argument on this? Any reason why we couldn't put everything on paper?
3 MR. KEHOE: Your Honour, it's always -- I found it to be very
4 helpful in a -- in issues such as this to address outstanding questions,
5 and just take a short period of time after Your Honours have been versed
6 on all of the arguments made by the respective defendants and by the OTP,
7 to take some short period of time to clarify any outstanding issues.
8 There are some limitations word wise and space wise that preclude
9 a more extensive discussion about a very, very important issue; and when
10 you examine our briefs regarding the challenges specifically to crimes
11 against humanity you'll see how, I don't want to say complex, but detailed
12 the actual case law is in support of that issue.
13 That being said, Judge, I submit that it would be extremely
14 helpful for the Chamber to take that additional time for oral argument.
15 We can do it into the night of one of those time frames, anything that
16 Your Honours would like, but I would impress upon the Court the need to
17 discuss that in an open forum.
18 MR. TIEGER: Your Honour, if I may.
19 [Trial Chamber confers]
20 JUDGE MOLOTO: Mr. Tieger.
21 MR. TIEGER: Yes, Your Honour. There may have been an impression
22 by the mention of the possible dates with -- among the parties that this
23 was a joint request. The Prosecution has not requested oral argument.
24 Obviously, it anticipates that if the Court had deemed it necessary, in
25 light of the original request in the written submission for oral argument,
1 the Court would have indicated to the parties it desired that to happen.
2 The only -- the only thing I would note in addition is that
3 these -- the written submissions have been extensive, and by my
4 calculation the Defence submissions have totaled approximately 17.000 or
5 18.000 words. I accept fully that any overage was made in good faith and,
6 and I don't raise an issue with that. But that does exceed the word limit
7 of a pre-trial brief, and I think it has been extensively addressed. But
8 I leave it to the Court whether any additional argument is deemed
9 necessary in its view.
10 MR. KEHOE: One last issue. If I indicated that -- that
11 Mr. Tieger agreed to oral argument, I didn't mean to indicate that. I my
12 indication was simply on the date that -- if Your Honour was going to --
13 Your Honours were going to entertain it, that it would appear from
14 consultation with counsel pursuant to Mr. Pittman's instructions that we
15 would come up with this date.
16 I would say with -- finally, with regard to this, Judge, if we are
17 looking into various areas such as reducing the space or reducing the
18 indictment, et cetera, these particular motions will go directly to that
19 and the determination to significantly reduce the indictment that's before
20 us. That's how crucial the legal issues are that are before the Court in
21 these motions.
22 JUDGE MOLOTO: The Chamber is inclined to request maybe a page
23 just giving grounds, written grounds why you need to be heard orally on
24 these issues, because we're not absolutely satisfied with what we have
25 heard this afternoon, and then the Chamber would consider that and come up
1 with its decision after hearing written submissions.
2 MR. KEHOE: Yes, sir.
3 JUDGE MOLOTO: Thank you. Other pending motions relate to the
4 fact that in the last Status Conference, the Defence teams did not object
5 to the Prosecution's combined notice of compliance and motion for
6 protective measures filed on the 19th of October last year. I Guess I'm
7 right there.
8 The Trial Chamber once again informs the parties that a decision
9 will be coming shortly on that point, on that motion.
10 And the other motion pending are also that of General Ivan Cermak
11 and General Mladen Markac's motions for access to confidential testimony
12 in the Martic, Slobodan Milosevic, and Babic cases, as well as Seselj. I
13 imagine the parties are aware this Chamber is not seized of those motions.
14 Those motions are before the respective Chambers that are dealing with
15 those cases, and this Chamber is not in a position to tell the parties
16 when to expect a decision from those various Chambers.
17 Okay? I guess we'll just have to wait for them to respond.
18 Unless anybody has got anything more to say. Mr. Tieger, do you
19 have anything to say on that.
20 MR. TIEGER: Not at this point, Your Honour, no.
21 JUDGE MOLOTO: Mr. Kehoe?
22 MR. KEHOE: No, Your Honour.
23 JUDGE MOLOTO: Mr. Prodanovic?
24 MR. PRODANOVIC: [Interpretation] No, we have nothing to add.
25 Thank you.
1 JUDGE MOLOTO: Mr. Separovic?
2 MR. SEPAROVIC: [Interpretation] No, Your Honour.
3 JUDGE MOLOTO: Thank you very much. Shall we then move on to the
4 item of disclosure.
5 Now, the state of the disclosure under Rule 66, 68, and 70 should
6 actually be clarified, I think, by you, Mr. Tieger. Apparently
7 Mr. Markac's counsel sent an e-mail to you, I suppose, on the 5th of
8 February, which was copied to the Trial Chamber via the SLO; and in that
9 e-mail, he was requesting a consolidation and streaming lining of the
10 disclosure under the various case numbers. Do you have anything to say?
11 MR. TIEGER: Yes, Your Honour. With respect to this issue
12 specifically and the issue somewhat more globally, I don't know how much
13 of an opportunity the SLO had to share with the Bench the discussions at
14 the 65 ter, which were somewhat extensive on this issue and I think
15 somewhat constructive, but if not I'll try to recap those for the
16 Chamber's benefit quickly.
17 JUDGE MOLOTO: Yes.
18 MR. TIEGER: Essentially, we have been in very active and direct
19 contact with the Defence about disclosure matters for some time now. We
20 have put our case management teams together to resolve any -- to identify
21 and resolve any issues. That has been, again, by consensus as
22 acknowledged explicitly at the 65 ter conference, extremely successful.
23 We're continuing to work at that.
24 One of the projects under way is a kind of revamping of the entire
25 disclosure logging process, so we can ensure that, to the extent humanly
1 possible, that every -- that all disclosures have been received and are
2 accessible. With regard to specific problems of the type that the Court
3 mentioned before, we are addressing those directly in the meantime, and
4 that, as I indicated, seems to be as successful an approach as anyone here
5 can envision. And we remain committed to pursuing that approach in an
6 effort to ensure that all existing problems are resolved and all
7 prospective problems are identified and prevented in advance if possible.
8 JUDGE MOLOTO: Mr. Tieger, at the last 65 ter conference, the
9 Prosecution had indicated that there were only about eight witness --
10 THE INTERPRETER: Microphone, Your Honour, please.
11 JUDGE MOLOTO: I'm sorry. I will repeat myself.
12 At the last 65 ter conference, the Prosecution indicated that
13 there were about eight witness statements outstanding; then the Defence
14 indicated that, in fact, there were about 20 translations of such
15 statements outstanding. Now, the number eight and 20, I would have
16 thought, by this time, would have been resolved, whether it was 20 or
17 eight. But, of course, we have heard this of afternoon, the startling
18 figures that have now been raised by Mr. Separovic saying that there are
19 41 statements and 300 documents that are not still outstanding. Are you
20 able to --
21 MR. TIEGER: I think so.
22 JUDGE MOLOTO: -- clear us on these points?
23 MR. TIEGER: I'll do my best, although I may not be able to
24 identify the specific context in which each number arose.
25 What I am aware of is that they referred, on occasion, to
1 different issues. One of the issues that arose was how many statements
2 were translated. Was the -- were there statements that the Defence had
3 that had not yet been translated. Part of that -- part of that was
4 addressed in, as I recall, in a previous 65 ter conference and Status
5 Conference, by noting that not all statements disclosed to the Defence
6 under various Rules would be translated because they were not statements
7 of anticipated witnesses; and then I think the figure eight was, to the
8 best of my recollection, a figure that related to specific identified
9 statements that the parties seemed to agree were statements of witnesses
10 likely to be or intended to be called.
11 Having said that and without going into the details of all that,
12 my current understanding is that with respect to witnesses, who we expect
13 now will be on the Prosecution witness list, that those statements have
14 been translated and disclosed.
15 Now, with respect to the number of documents identified by counsel
16 a few moments ago, I think that's largely embraced by a communication that
17 the Prosecution sent to the Chamber on January 22nd, I believe, in
18 response to an end of the year inquiry from the SLO. And what we
19 indicated then, and what we indicated also at the Status Conference today,
20 was that there were of course any number of, indeed, no doubt a large
21 number of documents disclosed for various reasons that would not
22 necessarily be the subject of translation, because they had not been
23 identified as prospective exhibits or the witnesses had not -- the
24 Prosecution had not made a determination those people should be called.
25 In the communication, I indicated to the Court that there were
1 pending translations, and there would also be additional documents
2 identified as we finalised the exhibit list and finalised the list of
3 witnesses for whom -- for which translations would have to be sought. And
4 I had communicated with the translation services of the institution to
5 determine whether the anticipated documents would present a problem in
6 getting -- it being translated by March 16th; and as I indicated in the
7 communication to the Chamber, I was advised that those documents should be
9 I further indicated that I would keep the Court apprised of any
10 change in that situation if we were advised that that date was in jeopardy
11 and that there would be some documents that would not be translated by --
12 at the same time we submitted the 65 ter list. And I indicated the same
13 thing at the 65 ter today.
14 I continue to monitor the progress of translations on a very
15 regular basis. My current information is, I think, relatively positive.
16 But as I said in the communication, I will alert the Chamber if the pace
17 is lagging. And I've also taken steps to ensure that if any documents are
18 not translated by that date, that they will receive the highest priority
19 for the translation services.
20 As I know the Court is aware of, because it was raised in previous
21 conferences, the translation resources of the institution are limited, and
22 we were often relegated behind cases that were either in trial or had
23 trial dates pending before this one. And to overcome that, I have been
24 engaged in a regular process of communicating with them, indicating the --
25 what I had communicated to the Court, and urging them to devote sufficient
1 staff to maximise, to the extent humanly possible, that the documents
2 would be produced by the date I indicated to the Court.
3 JUDGE MOLOTO: Can the Chamber accept that your short answer is
4 that the time line for disclosure would be March 16th unless otherwise
5 advised by the translations department?
6 MR. TIEGER: Yes, Your Honour. That is what I -- that is what I
7 indicated on January 22nd, and I --
8 JUDGE MOLOTO: And you repeat that today.
9 MR. TIEGER: And I'm pushing as hard as possible for that to
10 happen, and I will let the Court know if that seems to be -- if something
11 is happening that suggests that that date won't be met.
12 JUDGE MOLOTO: Okay. Then the Court will then ensure that the
13 time line, as of now, will be March 16th unless you hear otherwise from
14 the translation department. We understand that 68 disclosure is a
15 continuing exercise; but other Rules, 66 and 70, we'll be looking at March
16 16 --
17 MR. TIEGER: That's --
18 JUDGE MOLOTO: -- unless we hear otherwise.
19 MR. TIEGER: That's correct, Your Honour. Yes. That's exactly
20 what I tried to indicate.
21 JUDGE MOLOTO: Thank you very much. Then again in an e-mail of
22 the 2nd of February this year to the Trial Chamber, the Prosecution
23 indicated that they will provide the 65 ter materials and comprehensive
24 exhibits list electronically on CDs and DVDs and will try to provide an
25 electronic version of the 65 ter list with hyperlinks to the documents.
1 The Prosecution will inform the Trial Chamber in advance if the hyperlink
2 option will not be feasible.
3 I guess the Prosecution asked for confirmation from the Trial
4 Chamber that no master hard copy is needed to be provided to any of the
5 parties but that the electronic set would suffice for 65 ter disclosure.
6 What's your response to that, Mr. Kehoe or Mr. Misetic?
7 MR. MISETIC: [Interpretation] Your Honour, I -- well, I guess let
8 me speak on all of the disclosure issues that Mr. Tieger has addressed.
9 First, I with agree with him that -- that we have worked
10 diligently on both sides of the aisle to resolve the outstanding issues.
11 They have been significant since our last Status Conference, and there has
12 been good faith on both sides, I think, to resolve those as quickly as
14 JUDGE MOLOTO: Thank you very much.
15 MR. MISETIC: [Interpretation] But just so you're aware of the
16 status of things, according to our Defence team, again, just for purposes
17 of -- so you know where we are, we're waiting for 30 documents to be
18 disclosed. It's our understanding, and I think Mr. Tieger confirmed it
19 again, the documents which have been provided to us, but which the
20 Prosecution has indicated they do not intend to translate, are documents
21 that will not be used by the Prosecution; and to date, according to our
22 count, there are 477 such documents that far been provided to us. Again,
23 I just want to make that point clear.
24 With respect to this last question of master hard copies, I think
25 that will be sufficient. I -- I qualify that with that one reservation,
1 which is that's assuming that we work out all of these technical issues,
2 which I'm hopeful that we're going to get worked out. On the disclosure,
3 we're anticipating a new disclosure log coming from the Prosecution. The
4 problems, basically, on our side has been that the disclosure log has been
5 very difficult to actually find the documents that are exactly listed on
6 the disclosure log.
7 Assuming that gets worked out, we obviously will be able to find
8 the documents electronically and then go ahead and print them ourselves.
9 But to the extent that if there is a problem and down the line and it
10 becomes simply easier to obtain hard copies of the documents, we may ask
11 that. I don't anticipate that right now, because it's not -- I think
12 it's easier for use to have an electronic form as well, but I just wanted
13 to make sure the Court, given that there are still some outstanding
14 issues, that may be something we explore down the line. But I am hopeful
15 that's going to be resolved in the next two weeks. Thank you.
16 JUDGE MOLOTO: Mr. Prodanovic. What's --
17 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour. We have
18 nothing to add. Thank you.
19 JUDGE MOLOTO: Are you happy with electronic copies only, without
20 hard copies?
21 MR. PRODANOVIC: [Interpretation] Yes, we are.
22 JUDGE MOLOTO: Thank you very much.
23 Mr. Separovic.
24 MR. SEPAROVIC: [Interpretation] Thank you, Your Honour. The same
25 with us. Electronic copies are fine.
1 JUDGE MOLOTO: Thank you very much.
2 From the point of the view of the Bench, if the Bench could be
3 supplied with at least one hard copy.
4 MR. TIEGER: The senior legal officer made that known, and we
5 understand that. Thank you.
6 If I could-- sorry to make any complications in what was about to
7 be a fairly simple issue, but just to clarify two matters. Number one, I
8 think that the electronic disclosures for 65 ter purposes would be
9 independent of the -- it wouldn't be dependent on the disclosure log, so I
10 think documents will be accessible in that disclosure alone. So it's not
11 that the -- and that was the mention of hyperlinks I think. So that's the
12 objective. Maybe that's some assurance.
13 Number two, it's correct that the Prosecution does not intend to
14 translate -- unnecessarily translate documents that won't be exhibits, but
15 that process is ongoing. We're finalising exhibit lists. So the fact
16 that a document has not been translated and is indicated on a current
17 disclosure log currently as untranslated can mean any number of things,
18 including the fact that it's pending translation or the fact that -- that
19 there has been a decision affirmatively made not to use it as an exhibit,
20 or that that decision whether or not it goes in the exhibit list is still
21 awaiting the finalisation of the exhibit list.
22 So I don't -- didn't want counsel to be misled into thinking there
23 hadn't been a misrepresentation that specific documents that hadn't been
24 translated at this point or for which they had not yet received
25 translations will not be on the exhibit list.
1 JUDGE MOLOTO: But to the extent that any of the documents will
2 the not be used for the purposes of the trial, both the Chamber and the
3 Defence would be advised at some time in the near future so they can
4 discard and forget about those documents.
5 MR. TIEGER: To the extent possible, yes, Your Honour. And
6 perhaps that's one of the virtues of our fairly regular contact, and we
7 will certainly do our -- it certainly will be in the near future,
8 obviously, that filing will be on March 16th. But if we can facilitate
9 that in the interim, we're happy to do so and if we can find a way to
10 indicate certain documents that the Defence need not concern themselves
11 with, we'll try to do so.
12 JUDGE MOLOTO: Thank you. The Bench appreciates and notes the
13 virtues of regular contact and encourages that contact to be maintained.
14 MR. MISETIC: [Interpretation] Your Honour, if I may just quickly.
15 JUDGE MOLOTO: Yes, Mr. Misetic.
16 MR. MISETIC: [Interpretation] My proposal is that we work this out
17 amongst ourselves. I know that we have a long agenda still to, but I want
18 to make sure the record is clear. Our position -- our understanding is
19 somewhat different than that, and the reason is that the disclosure log
20 actually states that a translation is pending for documents that are
21 currently in the process of being translated.
22 We did have discussions about this issue at both of the last
23 Status Conferences, where my other colleagues raised the fact that they
24 could not read documents because they hadn't been translated. And I
25 believe that it was represented that if we haven't asked for a
1 translation, you can rely on the fact that we don't intend to use the
2 document. Rather than take it -- more of the Court's time, my proposal is
3 that Mr. Tieger and I and the rest of the counsel try to work this out
4 ourselves, so we don't take up more time of the Court.
5 JUDGE MOLOTO: Thank you very much, Mr. Misetic, and the Court
6 indulges that. Would you please make sure that you sort that out amongst
7 yourselves as quickly as you possibly can.
8 MR. MISETIC: [Interpretation] Yes, Your Honour.
9 JUDGE MOLOTO: Thank you. The other point was that the
10 Prosecution indicated at the last Status Conference that it was awaiting
11 approval and Rule 70 from the provider of certain documents, approximately
12 a hundred of them, before it could disclose them to the Gotovina defence
13 and the other Defences. Has this approval been given by now?
14 MR. TIEGER: No, Your Honour. This has been a continuing matter,
15 which is why these particular Rule 70 documents have arisen on a number of
16 Status Conferences and 65 ters. That's not to say that they're the only
17 Rule 70 documents with which the OTP must deal and for which it must seek
18 permission, but somehow these were identified quite some time ago. And
19 there was some focus on them and that the pending permission has not yet
20 occur. I will say that the provider was gracious enough to contact us
21 recently as of two days ago, in fact, to let us know that they're
22 continuing their review and that the matter remains in process.
23 That was another matter, I may add, that I addressed in the
24 response to the end of the year update from the senior legal officer, and
25 I indicated at that time that we had taken some extraordinary steps in an
1 effort to facilitate this and had been advised by the provider's
2 representative that we had done everything possible at that time, even
3 beyond that. After we received the Scheduling Order from the Court, I
4 contacted the provider and let them know what the new deadlines were in an
5 effort to encourage an expedited review. And as I say, the most recent
6 communication is the one I indicated to the Court.
7 JUDGE MOLOTO: In the communication you've just received recently
8 from the provider, is there any indication of a time line by when they
9 think they can provide this information, this permission?
10 MR. TIEGER: No, Your Honour, there is not. All I can say is
11 that -- as I mentioned, that they are aware of our time line, and perhaps
12 it's encouraging that they did not indicate in this communication that
13 that would be in jeopardy. And I -- in fact, I will contact them again
14 and do my best to determine whether there is a projected completion of
15 review date.
16 JUDGE MOLOTO: The Trial Chamber will appreciate that very much.
17 Thank you so much. I don't imagine that any of the Defence counsel have
18 anything to say or let me not preempt. Mr. Kehoe?
19 MR. KEHOE: No, Your Honour.
20 JUDGE MOLOTO: Mr. Prodanovic?
21 MR. PRODANOVIC: [Interpretation] No, Your Honour.
22 JUDGE MOLOTO: Mr. Separovic?
23 MR. SEPAROVIC: [Interpretation] No, Your Honour.
24 JUDGE MOLOTO: Thank you very much. We'll then move on to the
25 next point. General Gotovina's Defence counsel had asked for instructions
1 in an e-mail to the senior legal officer on the 5th of February this year
2 on how to interpret the Trial Chamber's 14 July 2006 non-disclosure order,
3 particularly on whether the Defence is allowed to disclose previous
4 witness statements provided to the Prosecution, to the witnesses
5 themselves, and to their governments.
6 The Trial Chamber finds the question redundant since the referred
7 order clearly states what should be done. Moreover, the Trial Chamber is
8 a little surprised that it has been asked ex parte and confidentially not
9 to disclose the specifics of the matter to the Prosecution. The Trial
10 Chamber has since been advised that this morning the matter was ventilated
11 openly between the parties. Now, the Prosecution is aware of the
12 Defence's intentions to approach some of the witnesses who might be
13 Prosecution witnesses.
14 Yes, Mr. Misetic.
15 MR. MISETIC: [Interpretation] I believe that the Prosecution has
16 always been aware of our intention to approach Prosecution witnesses.
17 That issue was specifically litigated at length last year with the Trial
18 Chamber, with the Trial Chamber concluding in the 14 July order that there
19 is nothing precluding the Defence from contacting Prosecution witness,
20 with the provision that the Prosecution had 14 days from that order with
21 respect to any witnesses they have disclosed to us to seek protective
22 measures for those witnesses under Rule 75, which would then require some
23 sort of methodology whereby we could contact those protected witnesses
24 under Rule 75 through the Prosecution.
25 Subsequent to that, in September, the Prosecution filed a request
1 for such measures with respect to I believe six witnesses. The Defence
2 did not object, and that motion is still pending before the Chamber with
3 respect to those six witnesses only. With respect to every other witness
4 that the Prosecution has disclosed to the Defence, the 14 July order makes
5 clear that we can go ahead and contact them. So the purpose of the ex
6 parte or confidential nature of the request wasn't to contact witnesses
7 that we shouldn't be contacting; but rather in order to protect work
8 product of the Defence in terms of who specifically we're contacting and
9 why, that that issue be addressed because the parties obviously have a
10 right to prepare their own cases in accordance with Rule 70 and to protect
11 their work product. That was the only intention.
12 Otherwise, it's our understanding pursuant to the July 14 order
13 that we have the right to contact Prosecution witnesses, except for those
14 that are currently pending before the Chamber, those six witnesses.
15 JUDGE MOLOTO: Thank you very much for the explanation. At least
16 that's -- what caused us surprise was the fact that it was confidential
17 and ex parte to the Chamber. But now given your explanation, it's even
18 more surprising that the request for interpretation has been asked at all,
19 if this matter has been litigated and ventilated in court and decided
20 finally. But no need to go into it.
21 MR. KEHOE: Judge, we're just trying to do the right thing. We
22 were trying not to contravene any order, and people were asking us for
23 this. Governments were asking me in particular for this; and, candidly,
24 Judge, I was trying to cross the T's and dot the I's and not do anything
1 JUDGE MOLOTO: Thank you for the crossing and the dotting.
2 Specifically, Mr. Tieger, this progress on the Rule 68
3 disclosures. I know it's a continuing exercise, but we want to know what
4 progress has been made in that direction.
5 MR. TIEGER: Well, it's a little hard to identify the progression
6 of an endless exercise, but we -- I mean, part of that process involves
7 going through materials that are not accessible to the Defence. And we
8 have been concentrating on that to ensure that we get through it as early
9 as possible. The -- I will confess to the Court, I did not check the
10 status of that progress immediately before this conference.
11 But the last time I did, which was not long ago, it seemed like we
12 were reasonably on target for ensuring that we had been through that
13 material well in advance of the commencement of trial. But in light of
14 the Court's question and my response, it's -- I think it would be prudent
15 if I went back and double checked to see exactly the pace of our progress
16 through those materials.
17 JUDGE MOLOTO: And the Chamber does appreciate that it's an
18 endless exercise. However, the Rule does say to the extent that the
19 Prosecution knows of such material. So at least to that extent, it is not
20 an endless exercise. And that's only the reason we asked the question, to
21 the extent that you know of the existence of any such material, how far
22 are you in disclosing that which you know about.
23 MR. TIEGER: I think we're quite current, Your Honour.
24 JUDGE MOLOTO: You're quite current.
25 MR. TIEGER: And we have processes in place to ensure that those
1 documents are disclosed as -- as soon as practicable, and I think we've
2 been successful at that.
3 JUDGE MOLOTO: Are you able to give a time line on as soon as
5 MR. TIEGER: I think it's only -- it's only a matter of logistics.
6 We bring them to the attention of the those persons responsible for
7 collecting them and sending them; and within a relatively short period of
8 their, meaning what, a week, two weeks at most, of their identification,
9 we ensure that they're sent out, barring some logistical problem or
10 emergency that interferes with that. In other words, if we could humanly
11 do it, if I read a document and it came within my actual knowledge that it
12 was Rule 68, I'd hand it right over the bar table to counsel; and to the
13 extent we can do that given our distances, we attempt to do so.
14 JUDGE MOLOTO: Okay. The next one - again, I'm sorry I'm coming
15 back to you again, Mr. Tieger - comprehensive 92 bis, 92 ter protective
16 measures motions. Any progress in that direction?
17 MR. TIEGER: We had a discussion about that at the 65 ter.
18 Prosecution was asked by the senior legal officer to identify some date
19 between the submission of the pre-trial brief and witness list and exhibit
20 list and the submission of the Defence pre-trial brief that would be
21 suitable for the submission of 92 bis motions.
22 And I indicated that we would look at that as soon as possible and
23 provide some feedback to the Court in that regard. So I haven't -- we
24 haven't had an opportunity to act on that yet, but my understanding is
25 that essentially the Prosecution has been asked to identify some date
1 between that time when -- when that can be done.
2 JUDGE MOLOTO: And the Prosecution will indicate that date?
3 MR. TIEGER: Correct, Your Honour. We'll get back to the -- we'll
4 do our best to get back to the Court sometime at the beginning of next
5 week or so.
6 JUDGE MOLOTO: Thank you very much.
7 Any comment on that point from the Defence side?
8 MR. KEHOE: Not at this time, Your Honour, no.
9 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour, no.
10 MR. SEPAROVIC: [Interpretation] No, thank you.
11 JUDGE MOLOTO: Thank you very much.
12 Now, just as an overarching kind of question, the Trial Chamber
13 would be interested to find out when it can expect disclosure to be
14 concluded. Now, just as a general -- is it possible to give us this
15 answer, say by the 20th of March?
16 MR. TIEGER: If I understand the Court correctly, I think it would
17 be possible to give the Court an answer by -- well, the 20th of March. I
18 think -- Your Honour, is that -- I need some clarification. You'd like us
19 to get back to the Chamber in writing by a certain date as to when
20 disclosure would be completed in its entirety, other than Rule 68
22 JUDGE MOLOTO: Barring Rule 68, yes.
23 MR. TIEGER: Well, if I may, Your Honour. Unless the Court needs
24 a specific date here at the moment, I would be more comfortable, and I
25 think I'd be acting more appropriately if the Court gave me an opportunity
1 to consult with my team and make sure that I'm not overlooking some --
2 some problems and not committing us to a date that -- that generates
3 difficulties that I'm not thinking of at the moment. So if you wouldn't
4 mind, I'd appreciate that.
5 JUDGE MOLOTO: Fair enough. And when you have consulted with your
6 team, would you be kind enough to relate to the SLO the date that you
8 MR. TIEGER: Of course, I'd be pleased to do so.
9 JUDGE MOLOTO: Thank you, Mr. Tieger.
10 At this stage, the Chamber just wants to reiterate the time lines
11 as envisaged up to the commencement of the trial pursuant to the
12 Scheduling Order of 17th January.
13 The Prosecution is expected to file its submissions pursuant to
14 Rule 65 ter (E) by Friday the 16th of March, and a Status Conference is to
15 take place on Tuesday, the 3rd of April, beginning at 2.30 in the
16 afternoon in a courtroom to be advised. And the Defence is to file their
17 submissions pursuant to Rule 65 ter (F) by Thursday, the 5th of April.
18 The Pre-Trial Conference pursuant to Rule 73 bis is to take place
19 on Friday, the 27th of April. Opening statements by the Prosecution
20 pursuant to Rule 84 is to take place on Monday, the 7th of May. And an
21 opening statement by the Defence, if any at this stage, is to take place
22 on the 8th of May, and evidence will be presented starting 9th of May.
23 Okay. I guess all those time lines are in the Scheduling Order,
24 but the Chamber just wanted to reiterate them to the parties.
25 The next item will be the potential conflicts of interest between
1 the various Defence teams.
2 May the Chamber please move into private session.
3 [Private session]
11 Pages 91-95 redacted. Private session.
16 [Open session]
17 JUDGE MOLOTO: Now that we're in --
18 THE REGISTRAR: We're in open session, Your Honour.
19 JUDGE MOLOTO: Thank you very much. The Court will adjourn for 20
20 minutes and come back at five to 6.00. Court adjourned.
21 --- Recess taken at 5.35 p.m.
22 --- On resuming at 5.58 p.m.
23 JUDGE MOLOTO: Can we move into private session, please.
24 [Private session]
11 Pages 97-98 redacted. Private session.
2 [Open session]
3 THE REGISTRAR: We're now in open session, Your Honours.
4 JUDGE MOLOTO: Thank you very much.
5 May I pick up with you, Mr. Separovic now. Before we went to the
6 break, you sounded in a hurry to get a decision whether or not you should
7 stay in this trial. It looks like in fact the decision in the first place
8 should be your decision and not anybody else's. So to the extent that you
9 are being delayed, it looks like you have nobody but Mr. Separovic to look
10 to. Would I be right in surmising that?
11 We have the -- the opinion of the ADC. I'm sure you have read it,
12 and it's for you to decide how you're going to conduct yourself based on
13 that opinion. Am I right?
14 MR. SEPAROVIC: [Interpretation] Your Honour, I will reiterate what
15 I said in closed session before. There is nothing that I can say in
16 private session that I cannot say in public. That's one thing.
17 Second, I assert that I am not in a conflict of interest, that I
18 am not a necessary witness, and that's why I am ready with my colleague
19 Mr. Mikulicic, who will speak with your leave on legal issues and legal
20 standards, to speak on facts.
21 Third, if I were to leave two and a half months before the
22 beginning of trial, General Markac would be irreparably prejudice because
23 he would no longer be on an equal footing with other Defence teams or the
24 Prosecution team, because a new Defence counsel cannot get sufficiently
25 prepared in two and a half months.
1 As I said, I do not believe I am in a conflict of interest, but
2 let me explain once again why I am looking forward to an early decision.
3 The Trial Chamber is the one to decide. It is not my decision. Weighing
4 all the arguments for and against, the Trial Chamber has to decide in
5 order to avoid a situation in which I could be accused of contempt of
6 court or of violating our code of conduct, our professional code of
8 It is my position, therefore, that I am not a necessary witness,
9 that I do not have a conflict of interest, and that General Markac would
10 be irreparably prejudiced were I to leave at this point. But I believe
11 that it is up to the Trial Chamber to decide.
12 I hope that you will allow me and Mr. Mikulicic to further explain
13 our position, if necessary.
14 JUDGE MOLOTO: Don't you want to explain your position to the full
15 before you sit down?
16 MR. SEPAROVIC: [Interpretation] Do you want me to explain why I
17 believe I do not have a conflict of interest to substantiate my position?
18 JUDGE MOLOTO: I'm not quite sure whether at this point in time
19 the Chamber is trying to determine whether you are or you are not in -- in
20 a conflict of interest. The Chamber is presented with an opinion from the
21 ADC, which makes certain findings about your position in particular, and
22 we -- that's why I said to you a little earlier when you came back that
23 based on that position by the -- of the opinion, the decision is actually
24 yours. And I hear you keep saying you want a decision from the Bench, but
25 I don't think we are at that stage yet. I thought -- I think we are at a
1 stage where you've got to indicate what you intend to do given the
2 opinion, without giving motivation for it. Are you carrying on or are you
3 not carrying on?
4 MR. SEPAROVIC: [Interpretation] Thank you, Your Honour. I think
5 we have understood each other. My answer is yes, I wish to continue, and
6 I'm going to continue all the way until a decision is made by this Trial
7 Chamber to make me leave if the Trial Chamber chooses to make such a
8 decision. I can present further arguments, if you wish.
9 JUDGE MOLOTO: I don't think that it's necessary.
10 JUDGE ORIE: Could I ask you, Mr. Separovic, a few questions.
11 First, on the matter itself. Let's just assume that there would be any
12 dispute about who would have been responsible, Ministry of Justice,
13 Ministry of Defence, high-ranking military -- high-ranking officers about
14 what crimes that were there to be investigated and to -- and to be
15 prosecuted. If you, as a witness, would have to testify on these kind of
16 matters, do you see that there is a -- that you might be in a dilemma when
17 you would say, "No, it was mainly the Ministry of Justice," then you would
18 perhaps take some blame for things that have happened. If you with say,
19 "No, it was the Minister of Defence," or you'd say,"It was the
20 high-ranking officers," do you understand that your own position is
21 involved when testifying on these issues if you would be called as a
22 witness in the cases against the three accused?
23 MR. SEPAROVIC: [Interpretation] Yes, Your Honour, I'm aware of
24 that. But you must take into account my assertion and my belief that the
25 matters that I could be asked to speak about could easily be the subject
1 of testimony of another ten very competent people. If the question is
2 whether somebody's culpable or not, I cannot speak to that. Therefore,
3 such a situation could not arise in my opinion.
4 As to how the justice system functioned, there are any number of
5 very competent witnesses.
6 JUDGE ORIE: Mr. Separovic, let's just assume that the Chamber
7 would consider the former Minister of Justice, the first one, the highest
8 responsible for perhaps what happened in the Ministry of Justice to
9 testify on these matters and not the 13 other witnesses you're suggesting.
10 What then?
11 The Prosecution perhaps plan to have you as one of the prominent
12 persons, because I do understand that you -- there's no dispute about you
13 being a former Minister of Justice of Croatia. Is that -- okay. Let's
14 just assume that the Prosecution would consider you to be the best witness
15 or the Chamber or any of the other counsel. What then?
16 MR. SEPAROVIC: [Interpretation] Your Honour, but that's a
17 hypothetical question. You're asking me to respond to something that
18 might, but also might not happen. If the Prosecutor deemed that this was
19 a potential subject of contention, they could have let us know much
20 earlier. Why would this issue become suddenly a matter of dispute two and
21 a half months before the start of trial?
22 Maybe the purpose is to delay the trial, to put a new problem
23 before the Defence, but if --
24 JUDGE ORIE: Mr. Separovic, that's not what I asked you. I didn't
25 ask you to comment on what the possible consequences are because that's
1 clear enough.
2 Then may I ask you one other question, perhaps put something to
3 you and see whether you would agree or disagree with that. You say the
4 Trial Chamber should decide. You may have noticed that from the words of
5 Judge Moloto that he considers it's the first duty of counsel to consider
6 the matter and to see whether he has to take a decision.
7 Now, you have alluded to the possibility that this Trial Chamber
8 would take a decision. The Chamber has discussed the matter; and on the
9 basis of the documents we received, there's still another possibility, and
10 that is that the Executive Council of the ADC would take a decision, and
11 from what I understand not primarily if you withdraw but especially if you
12 would, as we now understand you're not intending to, if you would not
13 withdraw, which might have quite drastic consequences not only for this
14 case but also for your -- for your position as a Defence counsel in this
15 Tribunal, because you know that membership of the ADC is one of the
16 requirements for Defence counsel to act before this Tribunal.
17 That's part of a scenario I did not hear any comment on from your
18 side. Could you -- could you tell me whether what you think the role of
19 the ADC in this respect would be, especially after in the advisory opinion
20 it is established -- at least it's said that there are good reasons to
21 believe that there is already a conflict of interest.
22 MR. SEPAROVIC: [Interpretation] Your Honour, what is most
23 important to me are the interests of my client. No other interests come
24 close. Therefore, I hold that the findings of the ADC are of advisory
25 nature. It is possible that my bar association, having heard legal
1 arguments and having studied the precedents decided upon by this court and
2 precedents from common law which they may not have been aware of earlier,
3 will change their opinion.
4 But I would appreciate it if these precedents be taken account and
5 my bar association decides whether it would be possible to conduct a
6 vetting process, a verification process to establish whether other
7 witnesses could be called to provide the testimony on matters that I would
8 be asked to testify to, and the bar association should hear about such
10 JUDGE ORIE: I was -- as a matter of fact, I was referring to the
11 ADC, which is a bar association as well and which decides on membership of
12 its members. So apart from that, I'm a little bit surprised that you
13 would leave it to the, I then take it, the Croatian Bar Association to see
14 whether or not this Chamber should call other witnesses rather than --
15 whether there would be a possibility for that. But let's not focus on
16 that. But especially your position within the ADC --
17 MR. SEPAROVIC: [Interpretation] It must be a misunderstanding.
18 I'm sorry. It is a misunderstanding. I'm sorry.
19 With your leave, when I spoke about the bar association, I meant
20 the ADC, and I meant exclusively the ADC. They are the only bar
21 association that I regard as mine.
22 I thought perhaps they could hear my arguments and maybe change
23 their opinion. If they want to exclude me, to make me withdraw, maybe
24 they could organise an adversarial hearing and a decision could be made on
25 that basis. So far they have only provided findings of advisory nature.
1 I would appreciate it if you would allow me and give me the
2 possibility of entering into a discussion, a polemic with them.
3 JUDGE MOLOTO: Yes. Would you agree with me that if there's an
4 apparent risk of -- even if you would take it that at this moment there's
5 no conflict of interest, that if there is an apparent risk, there would be
6 one in the future that would be a reason to withdraw as well?
7 MR. SEPAROVIC: [Interpretation] No, Your Honour. I do not believe
8 that is the case. I don't think we should go that far in our
9 interpretation and say that there is that possibility, because then we
10 could easily argue there is a possibility of abusing that situation to
11 make me withdraw at a certain stage of the proceedings once they start.
12 That is why my position is different.
13 JUDGE ORIE: I have no further questions for Mr. Separovic.
14 JUDGE MOLOTO: Thank you, Mr. Separovic.
15 If I may address a question to Mr. Karnavas. You've heard what
16 Mr. Separovic said. The advisory opinion is quite clear on his situation,
17 and the Displinary Committee of the ADC decided not to act at this stage,
18 but to defer to the Executive Council because the Executive Council had
19 asked for the opinion. What would be the normal next course of action
20 within the ADC given the answer that we have just got?
21 MR. KARNAVAS: Thank you, Mr. President. First, let me say that
22 the ADC, as a professional association, finds these sorts of issues
23 extremely serious. We are an association to protect the interest of the
24 Defence lawyers but, more importantly, to make sure that the rights of the
25 accused whom we represent are fully protected. So we -- we bear every
1 decision we make in mind with the rights of the accused.
2 Now, I was struck by one of the questions that was asked by you,
3 Mr. President, and that was that you had expected the Defence lawyer to
4 have acted on his own -- on his own accord given the decision that was
5 rendered by the ADC. As a policy matter, the ADC expected the same of its
6 members upon receipt of such an advisory opinion.
7 The Executive Committee saw this. Obviously, it felt extremely
8 comfortable with the content of the decision. I think it's a very
9 detailed decision, the situation is rather serious, and that's why I
10 brought Mr. Murphy with me, who is the chair of the disciplinary council.
11 So when this issue came to us, the Executive Committee, we passed it along
12 to the Registrar. We did not act at that point in time thinking that
13 perhaps counsel, because this decision affects more than just the one of
14 the Defence teams, would act on their own accord.
15 I don't believe it's a matter of us misunderstanding the
16 continental system versus the common law system. That's not an issue. We
17 do understand the jurisprudence. We do have rules, and this is a
18 party-driven system. And I think that the one question asked by Judge
19 Orie is very pointed, what if, what if the Trial Chamber on its own wished
20 to call a particular witness on its own, which it is it entitled to do,
21 and that may in this case may be lead counsel, and that poses a grave
23 So, what would the ADC do? Well, frankly, we believe the Trial
24 Chamber should act primarily because the ADC does not want to usurp from
25 the Trial Chamber its authority. For instance, what if ADC were to take
1 measures and say, "You must withdraw," and then the Trial Chamber for
2 other reasons decided that the ADC's decision lacked merit and then
3 overruled the ADC? If, on the other hand, from what I'm hearing, today
4 the Trial Chamber is of the opinion that the decision itself should stand,
5 albeit as advisory, then obviously the ADC would have to make a formal
6 request at least to -- to the counsel involved in this case to take the
7 appropriate actions necessary as indicated in the opinion.
8 But, again, what we're concerned primarily is not getting caught
9 in the middle, where we, based on an advisory opinion, take a position,
10 then we're overruled by the Registry or the Trial Chamber. We do keep in
11 mind that the Trial Chamber has set a trial date that, that we don't want
12 to interrupt the proceedings. The ultimate call is up to the Trial
13 Chamber, we believe. But, obviously, if the Trial Chamber were to
14 indicate that this decision stands and it has merit, then, obviously, the
15 ADC would have to take appropriate measures such as requesting, perhaps,
16 the gentleman to strongly consider withdrawing or else.
17 JUDGE MOLOTO: You say the ultimate decision lies with the Trial
18 Chamber. Wouldn't you say the intermediate decision lies with the ADC?
19 MR. KARNAVAS: I've been watching this Status Conference, and you
20 seem to be hitting the head of the nail on each of your questions. Yes,
21 you're quite right, Mr. President. You're quite right. But, again, from
22 a policy position, what we're concerned is being seen as trying to drive a
23 counsel out of a case only to be overruled later on by a Trial Chamber,
24 and that puts us in a very difficult position. But I take your point, I
25 understood your question, and the short answer is, yes. We're the step in
2 JUDGE ORIE: Mr. Karnavas, you say if the decision of the ADC
3 would be overruled by the Trial Chamber, where do you find the competence
4 of the Trial Chamber to overrule decisions on membership issues in the
6 MR. KARNAVAS: Well, this is a -- as I understand, this is --
7 they're coming in under Rule 44. What we're -- it's one thing for us to
8 strike someone from the list, for instance, or to say they are no longer
9 in compliance, in compliance with the ADC. But nonetheless the Trial
10 Chamber decides because they set a trial date that they want this case to
11 go forward, and the Trial Chamber could very well say, "Well, albeit we
12 have this advisory opinion, we find that it lacks merit, that perhaps
13 they've reached the wrong conclusion," in which case the Trial Chamber
14 decides irrespective of ADC to keep counsel in the case and overrule the
15 decision of the -- of the ADC.
16 That's our concern. We're being placed in the middle. And that's
17 why when we transferred the matter to the -- to the Registry, we then
18 expect the Registry to take appropriate action.
19 I hope I've answered your question. We are in a delicate position
20 that we don't have quite the enforcement powers that some folks think we
21 have or should have.
22 JUDGE MOLOTO: But you understand, Mr. Karnavas, that the Trial
23 Chamber usually would act upon the complaint of somebody or upon a
24 situation arising and being there virtually in the face of everybody.
25 MR. KARNAVAS: I do, Mr. President.
1 JUDGE MOLOTO: And, therefore, to suggest that you are being
2 caught in the middle is really to pass the buck.
3 MR. KARNAVAS: Again, you seem to be hitting it on the head. I'm
4 not trying to quite the buck. I'm trying to navigate through some
5 difficult channels.
6 JUDGE MOLOTO: Indeed, indeed trying to navigate yourself out it.
7 MR. KARNAVAS: But I take your point, Mr. President.
8 JUDGE MOLOTO: Certainly, the Trial Chamber can't be seized of it
9 before it is brought before it as an issue. This issue arose simply
10 because in a joint application, somebody indicated he might call
11 Mr. Separovic, the matter went on appeal, the appeal court said it hasn't
12 arisen yet. It may arise if this happens. However, the advisory opinion
13 says it has arisen, and it is for the ADC, therefore, to decide if it has
14 arisen. Within its own rules and codes, is there a course of action.
15 MR. KARNAVAS: Well --
16 JUDGE MOLOTO: Which would not necessarily be a course of action
17 just yet before the Chamber.
18 MR. KARNAVAS: I understand, Mr. President. Perhaps because I'm
19 more familiar with my own jurisdiction, normally the Court would have
20 stretched in. But, again -- again, in my jurisdiction if there was a
21 conflict of interest to arise that was not brought to the Court's
22 attention by the attorney, the attorney would be sanctioned. So I come
23 from a different culture where it's -- the attorney would have to be
25 JUDGE MOLOTO: But understand, Mr. Karnavas, for now it seems to
1 me as if the conflict for purposes of the Chamber to act would arise the
2 moment Mr. Separovic was called as a witness and he took the witness
4 MR. KARNAVAS: That's correct.
5 JUDGE MOLOTO: It does seem as if within the rules of the ADC in
6 terms of the advisory opinion, you don't have to wait until that.
7 MR. KARNAVAS: I agree. I think -- I think the opinion is rather
8 clear, Mr. President, in my opinion. And Mr. Murphy is here to address
9 that in a more thorough fashion. But as I read the opinion, and it's
10 rather clear, I think you would be imprudent to wait and see whether that
11 occasion would arise, I think. Because as you have indicated, in essence
12 it has arisen already.
13 JUDGE MOLOTO: And if this Court -- for this Court to be seized of
14 the matter, there ought to be -- there should be some kind of complaint
15 put before the Court.
16 MR. KARNAVAS: Well, we -- we assumed and perhaps wrongly that the
17 advisory opinion was in essence a vehicle for which the Trial Chamber
18 could --
19 JUDGE MOLOTO: Was the indictment.
20 MR. KARNAVAS: Well, that could be as well. I trust,
21 Mr. President -- I trust -- I'm not trying to avoid answering directly,
22 but I'm just trying to, as I've indicated, finesse the situation here.
23 JUDGE MOLOTO: I guess you have told us what you can tell us about
24 Mr. Separovic, and I understand that about Mr. Prodanovic the opinion does
25 say that the conflict has not arisen yet.
1 MR. KARNAVAS: Yes.
2 JUDGE MOLOTO: Is there anything you would like to say on that
4 MR. KARNAVAS: I would prefer to have Mr. Murphy address it, but
5 again I think if you read the -- the advisory opinion is rather clear, in
6 my -- in my opinion, in that I don't think -- well, attorney -- counsel
7 always has to -- they know their case better than anyone else, and of
8 course they have to exercise certain -- certain judgement, professional
9 judgement. And I think the opinion does seem to indicate that at some
10 point for all intents and purposes it will arise. At least that's how I
11 read it, or there's a very high probability that it will arise.
12 And in that case, then it begs the question at what point should
13 you act. In my professional opinion, you act as soon as you become aware
14 that the possibility exists that it might arise, as opposed to waiting for
15 the situation to actually come to that point. But then, again, I don't
16 want to go into the merits. Mr. Murphy is much more prepared to answer
17 that question, and I would welcome his input.
18 JUDGE MOLOTO: Thank you, Mr. Karnavas.
19 Mr. Murphy, would you like to add anything?
20 MR. MURPHY: Yes. Thank you, Your Honour. Very briefly. I
21 should say, first of all, because there may have been a certain
22 misunderstanding about what an advisory opinion is and what its effect is,
23 the disciplinary council of the ADC has very, very limited powers. We --
24 we cannot act in any way until we are asked to do so by either a member of
25 the association or in this case by the Executive Committee. This matter
1 began because in November Mr. Karnavas, on behalf of the Executive
2 Committee asked us for an advisory opinion.
3 But as Mr. Separovic said, the advisory opinion is exactly that.
4 It is simply a statement of our legal position under the code of conduct,;
5 and before we could -- before the disciplinary council could take any
6 further action, some further request would have to be made to us.
7 Perhaps, for example, a member would make a formal complaint.
8 Now, if that happened, under our constitution, there is quite an
9 elaborate procedure, as Your Honour can imagine, with a certain due
10 process for the member of the bar concerned. And, frankly, it would not
11 be feasible to conclude such a proceeding before the trial date was -- was
12 set, which has been set in this case, arrived. It just wouldn't happen.
13 So from our position in the Displinary Committee or council, Your Honour,
14 the last thing we would want to do would be to disrupt the -- the holding
15 of the trial and make it more difficult for the accused, and so I think
16 that in a practical sense our, hands are -- or somewhat tied here.
17 And when Your Honour said that it was primarily a matter for the
18 individual counsel to decide, I found myself noting in agreement with
19 that, because I think from a practical point of view that is really the
20 situation here, that each of these counsel has to decide what to do.
21 Whether at a later time in certain eventualities, if they should arise
22 during the trial, whether other action might be needed at that point, it
23 probably would come from the Trial Chamber because you'd be faced with a
24 practical difficulty that it had arisen during trial and then that it
25 would have to be solved.
1 I will say this if I may, Your Honour, one other thing. As far as
2 the advisory opinion itself is concerned. Your Honours have obviously
3 read it, and you will appreciate for the most part it tracks the
4 observations made by the Appeals Chamber in -- when the matter went up on
5 the joinder question. And we were very scrupulous to -- to observe the
6 findings of the Appeals Chamber, and I think the only addition that we
7 made to what the Appeals Chamber said was -- they were obviously not
8 concerned with the precise terms of the code of conduct.
9 It wasn't before the Appeals Chamber. It was before us. So we
10 had to interpret what Article 14 of the code of conduct meant; and as Your
11 Honour knows, we took the view that it imposed a certain positive duty on
12 counsel. But other than that, I think Your Honour will had find that
13 really everything that we've said was said by the Appeals Chamber on the
14 25th of October. And so to that extent, we do have a finding -- findings
15 in the record already.
16 JUDGE MOLOTO: Okay. Thank you very much, Mr. Murphy.
17 I guess we have heard -- I guess we have heard had the parties,
18 counsel on the matter. We haven't got much time. We still have another
19 major item to deal with. The Chamber cannot make a decision on the point
20 right now -- sorry.
21 Yes, Mr. Separovic. Yes, sir, would you like to say something?
22 MR. SEPAROVIC: [Interpretation] Your Honour, please. Just five
23 minutes of patience for allowing my colleague, Mr. Mikulicic, to speak of
24 the legal nature of the matter involved and jurisprudence. This will cast
25 a completely different light on what the ADC has said. Please do allow us
2 [Trial Chamber confers]
3 JUDGE MOLOTO: Mr. Separovic, we have very tight time constraints.
4 Do you think it can -- can we get the submissions in writing by counsel in
5 about three days? Is that okay?
6 MR. SEPAROVIC: [Interpretation] Oh, yes, we can do it in writing,
7 but we really don't need more than five minutes now.
8 JUDGE MOLOTO: Yes. But we need the time left for the other
10 MR. SEPAROVIC: [Interpretation] Very well, in writing then.
11 JUDGE MOLOTO: Thank you very much.
12 MR. SEPAROVIC: [Interpretation] Thank you.
13 JUDGE MOLOTO: I am aware that other counsel have sort of been
14 quiet. I guess you are still quiet, Mr. Kehoe, on this matter.
15 MR. KEHOE: Yes, Your Honour.
16 JUDGE MOLOTO: Thank you.
17 Mr. Tieger? Very briefly.
18 MR. TIEGER: Very quickly. The Court did talk about the -- with
19 Mr. Karnavas about the intermediate step. I would just simply note the
20 jurisprudence of the Tribunal makes it incumbent on the Trial Chamber to
21 act in the face of foreseeable risks that threaten to will disrupt the
22 proceedings or threaten its integrity. And I noted, as Mr. Murphy did,
23 that the holding or findings of the Appeals Chamber indeed tracked the
24 language and the findings of the advisory opinion found at page 19 of the
25 Appeals Chamber indicating that they found such conflict to exist.
1 JUDGE MOLOTO: Thank you very much, Mr. Tieger.
2 [Trial Chamber confers]
3 JUDGE MOLOTO: May I suggest also to you, Mr. Prodanovic, in case
4 you have anything to say, please to submit it in writing, if you have
5 anything to say still on this issue.
6 MR. PRODANOVIC: [Interpretation] Of course, we shall avail
7 ourselves of that opportunity to express our views in writing. However,
8 since you have put this question in general, it pertains to us as well.
9 How an attorney should act if his disciplinary council establishes that
10 there is potential conflict of interest. That question is very clear to
11 us; then one should leave the said defence if there is agreement on that.
12 However, we think that that opinion is based on unfamiliarity with the
13 facts in the case involved.
14 Oh, please let me. Just a few words, and I'll elaborate on the
15 rest in writing.
16 And, basically, what is important is to see how the potential
17 conflict of interest will be resolved, and that will be -- and that is
18 actually due to unfamiliarity with facts. I would like to indicate the
19 clear distinction that exists from the ruling of the Appeals Chamber from
20 the 25th of October that says there is a possible future conflict of
21 interest, but also what is indicated are the ways that it can be resolved
22 or overcome.
23 Guided by the views of the Trial Chamber, we gave our own
24 statements -- rather, the statements of Mr. Ademi, who is a witness in
25 this case and an accused in a completely different case concerning a
1 matter that took place two years before this. So I'm not even going to
2 refer to that now.
3 So there is a difference in terms of how this conflict of interest
4 could be resolved between the disciplinary council and the Appeals
6 JUDGE MOLOTO: Mr. Prodanovic, you're going a little longer than I
7 thought you were going to take. Do you mind if I cut you --
8 MR. PRODANOVIC: [Interpretation] All right.
9 JUDGE MOLOTO: If you have any further submissions, may I suggest
10 that you put them in writing.
11 MR. PRODANOVIC: [Interpretation] Very gladly. Thank you.
12 JUDGE MOLOTO: I do suggest to everybody, anybody who still wants
13 to make any further submissions in writing, please do so within the next
14 three days, by Wednesday next week, in other words. I'll give you three
15 working days. Thank you very much. We'll close this matter at that
17 The next item on the agenda may or may not -- the rest of the
18 people may or may not want to stay for it, and if they so wish they would
19 be excused; but if they wish to say, they're welcome to stay. This is the
20 matter relating to the compliance with the provisional release conditions.
21 Those of you who would like to be excused are excused.
22 MR. KEHOE: Yes, Your Honour, with all due respect, if we could be
24 JUDGE MOLOTO: You excused Mr. Kehoe and Mr. Misetic. Thank you
25 very much, Mr. Karnavas and Mr. Murphy. The Chamber wants to thank you,
1 specifically, Mr. Karnavas and Mr. Murphy for you time.
2 I don't know whether there is any transport arrangement for
3 General Gotovina. But if he does want to leave, he's also excused if
4 there is separate transport for him arranged. I don't know about that
5 pat, but he's not forced to stay.
6 MR. KEHOE: We want to take an opportunity to chat with the
7 general in back if we can. If possible, he can go in the --
8 THE INTERPRETER: The transcript cannot reflect what counsel is
9 saying. No microphone.
10 MR. KEHOE: Your Honour, I just wanted to take the opportunity. I
11 think they probably all will be going back together, but we were just
12 going to take a few minutes to chat with the general before the other
13 hearing ends.
14 JUDGE MOLOTO: I'm not able to -- to say yea or nay on that one.
15 I think you've got to sort it out with the security.
16 MR. KEHOE: Yes, sir.
17 JUDGE MOLOTO: Okay. I just forgot to say, Mr. Markac also may be
18 excused if -- there is an order that has just been filed reinstating
19 General Markac's provisional release. Do you hear that, Mr. Separovic?
20 MR. SEPAROVIC: [Interpretation] I beg your pardon, Your Honour, I
21 didn't hear.
22 JUDGE MOLOTO: I was just saying there is a decision filed
23 reinstating Mr. Markac's provisional release with effect from, I think,
24 tomorrow. Okay? Thank you very much. So he's also --
25 MR. SEPAROVIC: [Interpretation] Thank you.
1 JUDGE MOLOTO: -- also allowed to leave if he so wishes. He can
2 wait outside, unless he wants to listen.
3 MR. SEPAROVIC: [Interpretation] Thank you.
4 JUDGE MOLOTO: Shall we just take a short break for the security
5 to escort the people out. We will come back just now. Court adjourned.
6 --- Break taken at 6.46 p.m.
7 --- On resuming at 6.49 p.m.
8 JUDGE MOLOTO: Mr. Prodanovic, the Chamber would like to find out
9 from you whether we should go into private session, or even from anybody
10 else, from the Prosecution. What prompts this question is simply because
11 you made a filing confidentially, and we just want to find out whether we
12 should go into private session to discuss this matter.
13 MR. PRODANOVIC: [Interpretation] It's not necessary.
14 JUDGE MOLOTO: Very well then. We'll then stay in open session,
15 and I'll ask Judge Orie to lead us in the discussions.
16 JUDGE ORIE: Yes. I'd like to put a few questions both to
17 counsel, but also to Mr. Cermak himself. Now, he's quite at a distance,
18 but we'll try to see whether it -- we can work at this distance,
19 Mr. Cermak, or whether we -- I would perhaps later invite you to sit here
20 if necessary.
21 I'd like to clarify a few factual matters, which I learned from
22 the submissions made. You are aware that we are talking about three
23 events: One lunch on the 29th of December; the New Years Eve party, 31st
24 of December; and a happening on the 4th of January of this year, that is a
25 ski race where at least it was suggested that you might have violated the
1 conditions of your provisional release.
2 First question. I don't know whether I have to address you,
3 Mr. Cermak, or whether I have to address your counsel. It appears from
4 the submissions that any activity that was business related would be
5 allowed under the conditions of the provisional release. Is that the
6 position of the Defence? And Defence is Defence counsel and accused.
7 MR. PRODANOVIC: [Interpretation] Yes, Your Honour.
8 JUDGE ORIE: Yes. May I then take you -- do you remember what the
9 exact conditions were that were put to Mr. Cermak? Could you tell us
10 where you find that whatever business event there is that Mr. Cermak was
11 allowed to attend. Where do we find that? I mean, could you -- what were
12 the terms? What were the conditions? How were they phrased?
13 MR. PRODANOVIC: [Interpretation] The conditions from the annex to
14 the decision; that was that he could go to work in Zagreb between 7.00
15 a.m. and 7.00 p.m. on workdays.
16 JUDGE ORIE: Yes, on workdays. He could go to his business
17 premises, yes. And would that mean that you could go to a restaurant as
18 well, if you --
19 MR. PRODANOVIC: [Interpretation] That was our interpretation of
20 it. That is a bit of an extensive interpretation. But if I may say so,
21 he hardly ever went to Zagreb because, basically, he moved his business
22 premises already, on the basis of the first decision to Krapinske Toplice
23 where he resides. And the fact that in this case -- oh, all right.
24 JUDGE ORIE: I'm not inviting you at this moment. I would like to
25 put a few questions to you. You said he already moved his business to
1 Krapinske Toplice, but nevertheless --
2 MR. PRODANOVIC: [Interpretation] For the most part.
3 JUDGE ORIE: But nevertheless he asked, he requested that he would
4 go to his business in Zagreb. You said there was -- there was hardly any
5 need to do so, is that right?
6 MR. PRODANOVIC: [Interpretation] That's right.
7 JUDGE ORIE: All right.
8 MR. PRODANOVIC: [Interpretation] Well, no, not really. That's not
9 what I said. It's not that there was no need to go, but he went rarely.
10 Could you please have a look at what it was that I actually said.
11 JUDGE ORIE: Yes. Now, he was allowed to leave the confines of
12 his residence in Krapinske Toplice and travel to and from the seat of the
13 company, which is a certain address in Zagreb, Marticeva 65. Is it your
14 interpretation that travelling from the exact address where you live and
15 to the business premises would allow you to go whatever business place in
17 MR. PRODANOVIC: [Interpretation] That's what we thought. But,
18 obviously, on the basis of your questions, we thought wrong.
19 JUDGE ORIE: Perhaps, I put a next question perhaps, Mr. Cermak,
20 to you yourself.
21 You attended a birthday lunch on the 29th of -- a lunch at the
22 occasion of a birthday of a business partner in Zagreb. Could you tell us
23 what was the distance between the restaurant and your -- the business
24 premises where you worked?
25 THE ACCUSED CERMAK: [Interpretation] Your Honour, I just stopped
1 by at this birthday party of my business partner after leaving work. That
2 was around 2.00. Yes, sorry.
3 JUDGE ORIE: I asked you the distance.
4 THE ACCUSED CERMAK: [Interpretation] The distance is perhaps a
5 thousand metres.
6 JUDGE ORIE: I don't know if you have seen, but a picture was
7 published at that lunch where you are seated at a table. Have you seen
8 that picture?
9 THE ACCUSED CERMAK: [Interpretation] Yes, I've seen that picture.
10 I just came to wish him happy birthday. We had a drink, and my wife and
11 I went home. And all the rest-- sorry.
12 JUDGE ORIE: Perhaps that comes next the question. Someone is
13 standing in that picture and a woman is sitting next to you. Is that
14 your wife or --
15 THE ACCUSED CERMAK: [Interpretation] Yes, that's my wife, yes.
16 She was at the birthday party, at my friend's birthday party.
17 JUDGE ORIE: Yes. Now, my next question would be about the New
18 Year's Eve. In the submissions, it was said that this was outside
19 business hours. Could you tell us from what time to what time until what
20 time did you attend this New Years Eve party?
21 THE ACCUSED CERMAK: [Interpretation] I attended the New Year's Eve
22 party - well, since you're asking me about the time - from 9.00 in the
23 evening until 1.00 a.m.
24 JUDGE ORIE: Yes. Thank you for that answer. Then you said it
25 was outside business hours. What was the day of this New Year's Eve
1 party? Was it a working day? Was it a weekend day?
2 THE ACCUSED CERMAK: [Interpretation] New Year was during the
4 JUDGE ORIE: Yes. Now, the conditions clearly state that you're
5 not allowed, as it says, "but not on Saturdays or Sundays." Could you
6 tell us why you considered it to be acceptable to go to Zagreb outside
7 business hours on a day which was specifically excluded from the privilege
8 given to you?
9 THE ACCUSED CERMAK: [Interpretation] What can I tell you? I've
10 made a mistake, Your Honour. It was lack of caution on my part, but I
11 felt it was necessary to see my friends and business partners. Some of
12 them came from abroad, and knowing that I would be going to The Hague
13 soon, and also it had to do with work.
14 I employ about 600 people by the way, so I am responsible for
15 their existence and my own; and, quite simply, I felt the need to see
16 these people. And it wasn't my intention -- it was not my intention to
17 bring into question the decisions of the Tribunal or the Tribunal itself
18 in any way. With your permission, I would like to say a few words.
19 JUDGE ORIE: I have a few more questions for you, before I give
20 you an opportunity to.
21 The third event was the ski race. Now, I have seen the
22 submissions by counsel and the submissions by the government of Croatia.
23 There are a few things that are slightly different in the one or in the
24 other. Mr. Cermak, one of the things that -- in which there's a slight
25 difference in the submissions made by the government - I don't know
1 whether it is a difference - but you say that the slopes on which the
2 events were held are on the Hrvatsko Zagorije side and lie several
3 kilometres from your house; whereas, the government says since the event
4 was in the vicinity of his registered residence, a little more than five
5 kilometres away from his house.
6 Now, I see "a little more than five kilometres," and I see
7 "several kilometres." What is it?
8 THE ACCUSED CERMAK: [Interpretation] More than five kilometres.
9 From the side of Zagorije, on the side closer to my house, to my
11 JUDGE ORIE: How much kilometres would it be by car?
12 THE ACCUSED CERMAK: [Interpretation] To the start of the path in
13 Bistra, it would be around ten, a little over ten kilometres.
14 JUDGE ORIE: I'm asking about the place where you were, Sljeme,
15 as far as I understand, where you, as I understand, picked up your son and
16 your wife. To your house, how much would that be by car?
17 THE ACCUSED CERMAK: [Interpretation] When I went to Zagreb on
18 business, I had agreed with my wife that I should take her and my son and
19 go together with them to the Zagorije house. We often go via Sljeme
20 because it's much less jammed, much less crowded. I just wanted to make
21 it clearer to you and to respond to your question.
22 JUDGE ORIE: Please respond to my questions first. My question
23 was just what is the distance between Sljeme and your house, if you go by
25 THE ACCUSED CERMAK: [Interpretation] From Sljeme to my house by
1 car, it's around 15 kilometres.
2 JUDGE ORIE: Could I invite you to come sit here next to the ELMO
3 and then we can have a look at it. Could that be put on the ELMO. Yes.
4 Mr. Cermak, I have consulted some information in the public
5 domain, and I found a map, a map with a scale on it, and I reproduced that
6 scale on this map. Is that -- and I tried to draw a line between what is
7 indicated as Sljeme in approximately what I, on the basis of the
8 documents, considered to be the direction of your house; and as the crow
9 flies, could you perhaps, first, at the ELMO point at where your house is?
10 If you take a pen so that we all can see it.
11 THE ACCUSED CERMAK: [Interpretation] Yes, yes. Here.
12 JUDGE ORIE: Yes. As the crow flies, well beyond 20 kilometres on
13 the scale of this map, which would mean that by road, it would certainly
14 take far more, isn't it?
15 THE ACCUSED CERMAK: [Interpretation] Your Honour, when you ask me
16 about the distance of my house from Sljeme, I said 15 kilometres. I
17 didn't mean the top of Sljeme. I meant the edge of those slopes around
18 Sljeme. Because Stubicke Toplice is the exact beginning of the slopes of
19 Sljeme. I went to Sljeme because that's the road to Zagreb. When I
20 reached the slopes of Sljeme from Krapinske Toplice and another Toplice,
21 that's exactly where the slope of Sljeme begins.
22 JUDGE ORIE: Yes, I do understand. Now, could you point for us
23 exactly where the spectators to the ski event were. Where would we find
24 the place where the people would view the event.
25 THE ACCUSED CERMAK: [Interpretation] It is difficult to show this
1 on this map because it has no contour lines, but the ski pat of Sljeme
2 faces Zagreb and faces Krapinske Toplice. It's all within my district, my
3 neighbourhood. Whether it's here or here, I'm not sure. But the path
4 faces exactly this side. Stubicke Toplice is where the path begins, and
5 it faces Sljeme. It's not on the Zagreb side. It's on the Zagorije side,
6 and the path is visible from the entire Zagorije.
7 JUDGE ORIE: Now, you said you -- and I see a also slight
8 difference between the submissions made by counsel and the submissions
9 made by the government. Your counsel says you often took this road in
10 order to avoid traffic jams; whereas, the government says you often used
11 this road in order to avoid traffic jams, and that's what you did on that
12 day as well. Is that -- which is the two is the correct?
13 THE ACCUSED CERMAK: [Interpretation] Throughout these two years, I
14 very rarely went to Zagreb because I had moved most of my business to
15 Krapinske Toplice, and it was only occasionally that I used this road.
16 It's one of the options -- one of the possible roads going to Zagreb where
17 I can go to my work.
18 JUDGE ORIE: I have to correct. You said. You said
19 "occasionally." Now was it that day that you wanted to avoid the traffic
20 jam as well, that that's why you took that road?
21 THE ACCUSED CERMAK: [Interpretation] No. It was because my son
22 and wife were skiing. My 10 year old child skis rather seriously. That's
23 the only ski event that actually takes place in Croatia. And for the love
24 of my child, whom I have never been able to take there ever since this
25 story in The Hague started, I did it because I had been promising and
1 promising that. The child really adores that sport. I really did not
2 believe, Your Honour, because I have been cooperating with this
3 institution for so many years --
4 JUDGE ORIE: Did you have no opportunity to take him with you in
5 previous years or --
6 THE ACCUSED CERMAK: [Interpretation] In the earlier years, I was
7 unable to take him skiing because this ski complex was just completed two
8 years ago. It's the first time Zagreb and Croatia produced a ski complex
9 that is able to -- to cater to such an event.
10 JUDGE ORIE: Which leaves it possible that you would have taken
11 him there the year before, for example.
12 THE ACCUSED CERMAK: [Interpretation] In the earlier years, he went
13 to ski with an instructor. He had his own instructor, and he skied on
14 that pist [phoen].
15 JUDGE ORIE: I'm talking about the year before that same event.
16 Did you take him then or did you go there at all the year before?
17 THE ACCUSED CERMAK: [Interpretation] For the same event, yes. The
18 same competition we attended last year. We took him to just watch. It
19 was until 5.00 that the first round -- the first run lasted, and right
20 after that we went home. But I did not think of it as a violation because
21 it's within my district, the area where I am allowed to move. I did not
22 leave my district and the city of Zagreb for a centimetre.
23 JUDGE ORIE: Do you remember what the conditions exactly say, that
24 you should remain within the confines of your residence, not the whole of
25 the area, tens of kilometres wide.
1 THE ACCUSED CERMAK: [Interpretation] When the police spoke to me
2 about movement, they always speak in terms of the district, because our
3 place of residence is a small place, only 5.000 inhabitants. There is a
4 thermal spa there, and there is no police station in the very place where
5 I reside. The nearest one is in Zabok, and it was always my understanding
6 that I was allowed to move within that area. I really didn't mean to
7 violate the terms.
8 JUDGE ORIE: Mr. Cermak, tell me exactly what happened on that
9 day. You did bring your son and wife to Sljeme, to the area where the
10 event took place?
11 THE ACCUSED CERMAK: [Interpretation] We had agreed to meet up
12 there because she was already there with my son. I went up there and we
13 looked at one race.
14 JUDGE ORIE: How did she get there, by car?
15 THE ACCUSED CERMAK: [Interpretation] She had gone there by car.
16 Transportation had been organised for them, and I followed them knowing
17 that they were already there.
18 JUDGE ORIE: Yes. And did you make any special arrangements for
19 getting there, because -- did you drive with your own car?
20 THE ACCUSED CERMAK: [Interpretation] Since I really know those
21 people well, I had left my car at the parking lot in Bistra. And I got a
22 ride in the limo belonging to some service of the city of Zagreb after the
23 ski pist, and then I joined my wife in her car at Bistra and we used her
24 car to get home. We did not spend up there -- I did not spend there more
25 than one hour.
1 JUDGE ORIE: And your wife, you said she went there by her own
2 car. When was this all arranged? Was that --
3 THE ACCUSED CERMAK: [Interpretation] I did not say that my wife
4 had gotten there by car. You just asked me this for the first time. I
5 said that I had come to join my wife from Zagreb and I said we had done
6 all that for the sake of my son, and I believed that I was remaining
7 within the district of Zagorije.
8 JUDGE ORIE: I can't at this moment -- since my computer is not
9 working, I can't check what you exactly said on how your wife got there.
10 MR. TIEGER: Your Honour, it's page 70 --
11 JUDGE ORIE: Yes. The problem is my computer is not -- I don't
12 have the right -- let me see there. Perhaps -- yes, I've got it. Yes.
13 But let's just -- we'll finish soon.
14 So as far as -- you didn't go there by your own car. So in order
15 to fetch them, you left your car somewhere in the -- on the slopes.
16 THE ACCUSED CERMAK: [Interpretation] At the parking lot.
17 JUDGE ORIE: Therefore, for you to fetch them, as presented, is
18 not a correct version of what happened, is it, because as a matter of fact
19 you joined them -- if I -- yes? Mr. Prodanovic.
20 MR. PRODANOVIC: [Interpretation] I'm sorry, Your Honour. With all
21 due respect, I do not see the difference between what we wrote and what
22 you are just asking. He fetched them, except that he was not physically
23 able to go up to the top in his car. He just fetched them, and they all
24 returned together. He had earlier said that he had organised
25 transportation for his wife, that his wife had transportation arranged for
2 JUDGE ORIE: But when you joined them, did you -- when you joined
3 them did, you use your own car at that time or -- you said you used some
4 transportation that was provided for you.
5 THE ACCUSED CERMAK: [Interpretation] I said I had left my own car
6 at the parking lot, and I got a ride from a service car of the Municipal
7 Assembly up to the skiing complex. I joined my wife and son there. I
8 picked them up. We went together to my car and went home. It's all
9 within the Krapina district, the area where I was told by the police I was
10 allowed to move within.
11 MR. PRODANOVIC: [Interpretation] If I may just note, the parking
12 lot is at the foot of the hill. Since traffic was very heavy, it was
13 forbidden for private cars to go up there. Instead, special
14 transportation was organised to the top, so he drove to the foot of the
16 JUDGE ORIE: Now, I checked what you said. You said she had come
17 which by car. Transportation had been organised for them. So that's
18 where I may have made a mistake. I thought it was by their own car.
19 Now, if transportation was organised for them, what caused you to
20 go there to use -- where you couldn't go any further with your car to use
21 other transportation in order to get to them to get them back to your car?
22 THE ACCUSED CERMAK: [Interpretation] My motivation was my son's
23 love for skiing. He's seriously training, and I really wanted to join
24 them up there and to take them back home afterwards. I did not attend the
25 competition until the end. We looked at two or three races, and after
1 that we went home. My car was waiting down below at the parking lot, and
2 we went home.
3 JUDGE ORIE: And that's what you did the year before as well? Is
4 that correctly understood?
5 THE ACCUSED CERMAK: [Interpretation] Last year the situation was
6 similar. I don't remember the details any more. I remember that the two
7 of them went up there several times and went skiing as well and attended
8 the competitions, and I joined them up there very briefly.
9 JUDGE ORIE: I've got a question for you, Madam Slokovic. You
10 have reported to have said to the press that it was no violation of the
11 conditions if Mr. Cermak would bring his child to the ski event. That's a
12 HINA report saying that you gave a telephone conversation -- a telephone
13 interview, in which you said that -- if you want me to read it I will do
15 MS. SLOKOVIC: [Interpretation] It's not necessary, Your Honour. I
16 did say on that occasion that Mr. Cermak was not imprisoned in his home.
17 The HINA News Agency asked me whether there were any conditions imposed by
18 the Tribunal that would require Mr. Cermak to stay within his home and in
19 Krapinske Toplice, and I said he was not under house arrest. And it was a
20 telephone interview in which I said the fact that he was taking his son
21 skiing or back or going in working hours for a luncheon or stop somewhere
22 on his way home was something I did not believe to be in violation of the
23 Tribunal's orders.
24 It could be our mistake equally, because I never thought that he
25 was required to stay within the four walls at Marticeva street all the
1 time. So if he made a mistake, then it is also due also to our errors in
2 understanding the decision. Our understanding that he was required stay
3 within certain locations, to be accessible to the Tribunal, and not to
4 move without control.
5 All these incidents happened in an atmosphere of holidays with the
6 knowledge that he would soon be going to The Hague. Maybe his attention
7 relaxed a bit, and it is our fault as lawyers that we did not warn him
8 that he was not allowed to leave the premises at Marticeva street where he
10 JUDGE ORIE: The conditions says, "not on Saturday and Sunday."
11 You would interpret that as including to go on Sunday where you want to
13 MS. SLOKOVIC: [Interpretation] No, certain not. That was
14 certainly a mistake on Mr. Cermak's part. But when I made that statement,
15 I said that he was not under house arrest because the news reported the
16 terms of his provisional release as if he were under house arrest and not
17 allowed to leave his home.
18 JUDGE ORIE: Yes. But, Ms. Slokovic, aren't the conditions of the
19 provisional release that he should stay within the confinement of his
20 residence? That is his house, isn't it? Not his village, not the area,
21 not the province. It says within the confinement of his residence. That
22 is his house, isn't it?
23 MS. SLOKOVIC: [Interpretation] I don't know. I think there may be
24 a problem there, because we really didn't understand it that way. I am
25 not exaggerating, and I am not being untruthful or evasive. But we
1 honestly thought that that meant within his place of residence, which is
2 Krapinske Toplice. The language used by the decision is "place of
3 residence." Maybe the problem lies in the way we understand this term.
4 According to our belief, it was his place of residence, not his house.
5 JUDGE ORIE: Ms. Slokovic, and then unannounced visits to see
6 whether he's present, would they then unannounced go to the whole of the
7 village or the whole of the area, and see whether he is present. That is
8 one of the conditions that was in the first Appeals Chambers decision,
9 which says- and the second one, as well - he should allow unannounced
10 visits to check his presence.
11 Wouldn't that mean that you go to someone's house to see whether
12 he's present, rather than to travel through all of the area to see whether
13 he is at the ski event or in a restaurant or --
14 MS. SLOKOVIC: [Interpretation] In Krapinske Toplice, you cannot
15 travel far. It's a very small place, indeed. And as Mr. Cermak told you,
16 he stayed exclusively at his own home. He has moved part of his business
17 there. He worked from home, and it was on a couple of occasions that he
18 went to Zagreb.
19 THE ACCUSED CERMAK: [Interpretation] And I reported to the police
20 every day.
21 MS. SLOKOVIC: [Interpretation] It was only after he was allowed to
22 officially travel to Zagreb occasionally that he went to Zagreb. Before
23 that, he had organised all of his work from home. It must be a
24 misunderstanding. I really did not understand that he was not allowed to
25 leave his home or that he was required to stay in Zagreb solely at
1 Marticeva street.
2 THE ACCUSED CERMAK: [Interpretation] May I?
3 JUDGE ORIE: You would like to say something as well. The
4 interpretation says "witness," but it is Mr. Cermak.
5 THE ACCUSED CERMAK: [Interpretation] Your Honour, I want to say
6 that if I had known I was not allowed to leave my home, you may be certain
7 I never would have done so. I always reported on a daily basis to the
8 police station covering our district.
9 If you allow me just a few more words. I want to emphasise that
10 it was never my intention to question or second-guess the decisions of
11 this Court. Please, I would really ask the Trial Chamber to view my
12 recent actions in the context of my conduct of the past eight years. I
13 was always consistently cooperative with the Tribunal and always had great
14 respect for it. In 1998, I gave my first statement, my first interview to
15 the investigators of the OTP. At that time, I was under attack from both
16 the politicians and the media that I was not allowed to because the ban
17 was still in force --
18 JUDGE ORIE: Mr. Cermak, we are running out of time, and the issue
19 you are raising now is fully dealt with in the submissions by counsel.
20 THE ACCUSED CERMAK: [Interpretation] I just wanted to say
21 something, Your Honours, in my very own words and to add something else,
22 by your leave. If you don't let me, then -- I mean, really, I honourably
23 treated this court from day one.
24 MR. PRODANOVIC: [Interpretation] Your Honour, just one more
25 thing. Since Mr. Cermak said the went to Zabok, which was of course in
1 accordance with the decision. Zabok is ten kilometres away from his
2 house, and that is where the police station is.
3 THE ACCUSED CERMAK: [Interpretation] Fifteen kilometres.
4 MR. PRODANOVIC: [Interpretation] Twelve. It's a very small
5 place. Once you're out; you're out of it. You get out of the building,
6 and you're out of the place itself. And all the relevant institutions are
7 not there and not all the relevant institutions are there and, therefore,
8 it doesn't function properly. It is really my responsibility, because it
9 wasn't mine understanding that he had to be within the confines of four
11 JUDGE ORIE: Yes. I don't think Mr. Cermak is blamed at this
12 moment for reporting in Zabok when there was any need to do so.
13 We're running out of time. We're already half an hour late and --
14 MR. PRODANOVIC: [Interpretation] No. I'm just trying to
15 illustrate the situation. It's a very small place. When you get out, you
16 immediately have to get out of it a bit.
17 [Trial Chamber confers]
18 THE ACCUSED CERMAK: [Interpretation] Your Honour, may I just have
19 two minutes to say something else, as a human being? Just something else?
20 JUDGE MOLOTO: You may.
21 THE ACCUSED CERMAK: [Interpretation] I just wanted to explain to
22 you that over years eight years from the very outset, I cooperated with
23 this Court, that I was under attack, that I shouldn't be doing that, and
24 that I was attacked by the media and by the sphere of politics. And I had
25 my first contacts and interviews with The Hague Tribunal in 1998, and then
1 after that I gave three other statements. I voluntarily surrendered to
2 the Trial Chamber as soon as the indictment was issued.
3 So I did everything in accordance with the law of the Republic of
4 Croatia on The Hague Tribunal. I also gave three other statements to the
5 investigators of the OTP. I voluntarily surrendered to the Tribunal once
6 the indictment was issued. From 2004, when I was provisionally released,
7 I fully abided by all the conditions imposed on me by the Court, and there
8 are regular reports of the Croatian police and government to corroborate
9 that. With my behaviour, I showed that I had full respect for the
10 institution of the Tribunal.
11 Your Honours, I truly believe that this isolated incident cannot
12 be considered as contempt on my part, but simply an action taken in an
13 exceptional situation in New Year's and also the fact that I took my child
14 to a skiing event within my district. Once again, Your Honours, I'm
15 saying that I am sorry by that, and that I will continue to abide by all
16 the instructions of the Court. Please forgive me as a human being.
17 Had I had known that I was supposed to be in my home, I would have
18 been in my home. I -- it would really be a tragedy, as a person who from
19 Croatia in the former Yugoslavia contacted and cooperated with the
20 Tribunal in such a way. If I were to be treated as a person who stood in
21 contempt of court, I mean really that would be so wrong. It was really my
22 mistake. I admit that, and I am so sorry.
23 JUDGE MOLOTO: Thank you, Mr. Cermak.
24 May I just please ask for the indulgence of the interpreters, and
25 everybody. We're going to ask for just two or three minutes and then
1 we'll come back. Court adjourned.
2 --- Recess taken at 7.33 p.m.
3 --- On resuming at 7.36 p.m.
4 JUDGE MOLOTO: Thank you. The Trial Chamber is not able to reach
5 a final decision on this issue today. As a result, the suspension of the
6 provisional release order stays in place, and the Trial Chamber will meet
7 or reconvene the Chamber again next week to reconsider the matter. In the
8 meantime, the accused will stay in the United Nations Detection Unit until
9 the matter is formally decided in the new week.
10 Court adjourned.
11 --- Whereupon the Status Conference adjourned
12 at 7.39 p.m.