Tribunal Criminal Tribunal for the Former Yugoslavia

Page 13281

 1                           Tuesday, 9 December 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness entered court]

 5                           --- Upon commencing at 2.24 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone.

 7             Madam Registrar, would you please call the case.

 8             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon

 9     everyone in and around the courtroom.  This is case number IT-06-90-T,

10     The Prosecutor versus Ante Gotovina, et al.

11             JUDGE ORIE:  Thank you, Madam Registrar.

12             Good afternoon, Mr. Theunens, to you as well.  I would like to

13     remind you again that you are still bound by the solemn declaration you

14     gave at the beginning of your testimony.

15             Mr. Kay, are you ready to continue --

16             MR. KAY:  Thank you, Your Honour, yes.

17             JUDGE ORIE:  The Chamber would like to receive at the end of the

18     first part of this afternoon's session an update on the estimates as far

19     as time is concerned, that primarily concerns you, Mr. Kay, and

20     Mr. Mikulicic.

21             MR. KAY:  Of course, Your Honour.  Thank you.

22             JUDGE ORIE:  Please proceed.

23                           WITNESS:  REYNAUD THEUNENS [Resumed]

24                           Cross-examination by Mr. Kay: [Continued]

25        Q.   Good afternoon, Mr. Theunens.

Page 13282

 1        A.   Good afternoon, Mr. Kay.

 2        Q.   At the end of yesterday's session -- not yesterday's, Friday's

 3     session - I referred you to a document, Exhibit D1068, which was a daily

 4     report, if you remember.  We're going look at the next document I have

 5     like that, which is 65 ter 1578.

 6        A.   Your Honours, I haven't addressed this with the court officer

 7     yet, but I reviewed the documents I received, but maybe you want to do

 8     that another time.

 9             MR. KAY:  Shall I finish this section and then we can go to the

10     others.

11             JUDGE ORIE:  I leave it your hands when to pay attention to it.

12             MR. KAY:  Yes.

13        Q.   You can see there this document, Mr. Theunens.  It's again

14     another daily report dated the 2nd of September, 1995, exactly the same

15     as the other document that we have seen.  It comes from the duty service

16     of the 72nd Brigade, and it is sent to the military police administration

17     in Zagreb but also to other people.  That's just the genesis of this

18     document, is the VPU document.

19             We can see there details of situations on the first page

20     concerning crime, reports of what was happening, who was involved.  We

21     can notice that it involved officers from Split military police as well

22     as the first police station in a particular municipality.

23             Paragraph 2 is a similar report of crime.

24             If we go to the next page, page 2.  Again, we can see the

25     continuation of paragraph 2 concerning that incident.  We have another

Page 13283

 1     heading similar to the previous document that we looked at at the end of

 2     last week, Exhibit D1068.  This is violation of provisions of the Code of

 3     Military Discipline.  Paragraph 1 is a particular incident.

 4             Paragraph 2 concerns the Knin military police, and that they were

 5     notified by the duty officer of Kistanje police station that a patrol had

 6     stopped a vehicle, HV member was transporting goods.  A patrol was sent,

 7     a man arrested, taken to the Knin military police officers.  We can see

 8     what he was found with.

 9             Page 3 more information from the Knin military police concerning

10     the goods, and it was -- they were confiscated.  Misdemeanour report

11     filed.

12             Paragraph 3 is another Knin military police patrol on regular

13     patrol in Kosovo, Knin municipality, soldier stealing goods.  We can see

14     that report.  A disciplinary report will be filed against him.  We see

15     again the headings that were in the previous document.  These are

16     obviously pro forma headings that when something fits in, it is included

17     under that heading.

18             My interest is in where this was sent to by the shift leader.  We

19     can see there the operations duty department of the military police

20     administration where the document comes from, Military District

21     commander.

22             If we go to page 4, the commander of the Split garrison, number

23     3, as in the previous report.  And the Split security an information

24     service, and then the Court can see the other identities of people to

25     whom it is sent to.  I'll read this out once, but it becomes repetitive

Page 13284

 1     after more documents:  Chief of the Split-Dalmatia police administration,

 2     the military court of the Split Military District, military prosecutor's

 3     office, assistant commander for operations and training of the 72nd

 4     Military Police Battalion, duty officer of the 72nd Police Battalion,

 5     chief of the crime military police of the 72nd Police Battalion, and the

 6     archives.

 7             Again, will you notice that although there was an incident

 8     involving the Knin military police, Mr. Theunens, this information from

 9     the daily report was not sent to the Knin garrison commander but the

10     Split garrison commander, as the reporting line.  Do you have any comment

11     to make on that?

12        A.   I agree, Your Honours.  As was the case with D1068.  Even though

13     there are incidents reported in the zone of responsibility of the Knin

14     garrison commander, he is not included in the addressee list.  I cannot

15     say why his name is missing.  I cannot say whether he was informed

16     otherwise, but independent of the issue of subordination, it would be

17     normal for the Knin garrison commander or any other garrison commander in

18     whose area an incident that required the intervention of the military

19     police occurred, to be informed one way or the other of this incident as

20     it affects his tasks.

21        Q.   Thank you.  You'll recollect the matters that I have put to you

22     concerning the fact that Knin garrison was not functioning in the usual

23     manner of a garrison command, because of the circumstances at the time,

24     and I put it to you that that is the reason why this reporting line and

25     the subordination of the military police was not as it was to be

Page 13285

 1     expected.

 2        A.   I understand, Your Honours, but I -- even after reviewing the

 3     other document, I see no reason to change any of the conclusions I drew

 4     in relation to the authority General Cermak has over the military police

 5     in Knin, as well as the civilian police.

 6        Q.   Thank you.

 7             MR. KAY:  May that document be made an exhibit, please, Your

 8     Honours.

 9             MR. WAESPI:  No objections.

10             JUDGE ORIE:  Madam Registrar.

11             THE REGISTRAR:  Your Honours, it will be admitted as

12     Exhibit D1069.

13             JUDGE ORIE:  D1069 is admitted into evidence.

14             Mr., Theunens, may I ask you one additional question in relation

15     to this document and other documents as well.

16             We see that the document is sent to the garrison commander of

17     Split.  You have explained to us what the authority was, at least in your

18     view of the Mr. Cermak.

19             Would it be for that same functional authority that the documents

20     which also deal with matters within the area of the Split garrison, would

21     that be the reason why it was sent to the Split garrison command and

22     would it be the only reason as far as you are aware of, that it was sent

23     to that garrison commander?

24             THE WITNESS:  Indeed, Your Honours, as I explained, the military

25     police reports here about incidents which occurred or which were caused

Page 13286

 1     partly by members of the units of the Split Military District and/or

 2     occurred in -- in outside the barracks occupied by units of the Split

 3     Military District and as such may affect order and discipline in the

 4     garrison area.  And that's why they are sent, in my view -- or at least

 5     for that reason they are sent to the commander of the Split garrison, and

 6     that's also why I would except them to be sent to the commander of the

 7     Knin garrison or to have the information that is relevant for these

 8     garrison commanders be transmitted to them in another matter.

 9             JUDGE ORIE:  You will understand that the -- what I'm trying to

10     find out is whether the Split garrison commander in any respect takes a

11     different position compared to the Knin garrison commander in this

12     respect.

13             THE WITNESS:  I have not seen -- I will rephrase that.

14             I have indeed seen a few documents where we have discussed them

15     that the commander of the Split garrison prior to Operation Storm is

16     concerned about the disciplinary situation in the area of the garrison.

17     He organises, for example, regular meetings with the unit commanders and

18     he forwards the minutes of these meetings to General Gotovina.  We have

19     also seen the example where the Split garrison commander uses military

20     police in order to assist him to maintain discipline at a particular

21     occasion.

22             I have not seen such documents, and I mean by this, analysis or

23     reports of meetings of General Cermak with unit commanders or commanders

24     of units located in the area of the Knin garrison, and I have not seen

25     any communication, I mean, written communication between General Cermak

Page 13287

 1     and General Gotovina on the disciplinary situation in the area covered by

 2     the Knin garrison.  So that is, indeed, a difference.

 3             JUDGE ORIE:  Thank you.

 4             Please proceed.

 5             MR. KAY:  Thank you, Your Honour.  We're going to look at a few

 6     more of these to establish the pattern and then some other relevant

 7     documents, and this may assist the Court.

 8             Can we look at 65 ter 3191.

 9        Q.   And the next few documents are exactly the same, Mr. Theunens, as

10     daily reports.

11             While it's coming up, perhaps you can tell us, did you look at

12     these at the time of your report or before coming to court, before being

13     questioned.  Do you know these documents I'm producing?

14        A.   I have a recollection of seeing some of them.  Now, I -- I have

15     not systematically analysed them, but I think the point we are discussing

16     now should have been included in my report, i.e., that these reports,

17     which even if -- I mean, which discuss incidents in the Knin garrison are

18     not sent to the Knin garrison commander.

19        Q.   Thank you.  That's very fair of you.

20             There were -- there are a large number of these reports on the

21     database untranslated.  Have you seen those?  I'm picking out the only

22     translated ones there were originally, and then we searched and found

23     more.  Did you see untranslated ones per chance?

24        A.   I'm -- I must have come across untranslated ones.

25        Q.   Yes.

Page 13288

 1        A.   But have you not under taken any specific action in relation to

 2     the untranslated ones --

 3        Q.   Thank you.

 4        A.   -- of this type.  For other documents, I did request at occasion

 5     translations, and that was focussed actually on doctrinal documents.

 6        Q.   Yes, thank you.  Again, document here from the military police

 7     duty service, 6th of September, 1995, from Split.  It's the daily report

 8     for the 6th of September, 1995.  We see the heading here:  Crime, no

 9     incidents reported.  Violations of provisions of the Code of Military

10     Discipline.  We've no need to go into the detail, but we can see on the

11     first line of paragraph 1 here that it's a Knin company, military police

12     case, stopping a vehicle driven by a soldier, that they had come from a

13     house near Knin taken to the military compound.

14             We go to paragraph -- page 2.  Page 2, paragraph 2, same date.

15     Another Knin military police company report about an incident at a

16     roadblock involving a soldier, stolen goods.  We can see the goods, and

17     they were taken to the Knin police station.

18             3 is a Split VP.  Other incidents listed below.

19             Turn to page 3, we can see another football match here between --

20     in Zadar, between two clubs and a report on that.

21             5, Zadar military police were provided security to the match.  We

22     can see the other incidents that are listed.  Military road traffic

23     security, we can again see a Knin military police company patrol and a

24     traffic accident.

25             And, again, sent to the same people.  Number 3 is the Split

Page 13289

 1     garrison commander.

 2             If we turn to page 4, we can see the identities of the other

 3     relevant parties.  And I presume your answer is the same as the previous

 4     answer.

 5        A.   It is, Your Honours.

 6             MR. KAY:  May this document be made an exhibit, Your Honour.

 7             MR. WAESPI:  No objections.

 8             JUDGE ORIE:  Madam Registrar.

 9             THE REGISTRAR:  Exhibit D1070, Your Honours.

10             JUDGE ORIE:  D1070 is admitted into evidence.

11             MR. KAY:  Your Honour, I have another 30 or so of these that are

12     in exactly the same format.  They're the daily reports.  They do not go

13     to the Knin garrison commander.  They go to the Split garrison commander.

14     Of these, there was one fully translated -- two fully translated and

15     another two that had partial translations which my team completed for me

16     to make up the rest of the account.

17             The remaining 30 or so documents all remain untranslated

18     documents, but they are for an important feature of the case concerning

19     the reporting of the military police and these Knin company military

20     police incidents.

21             I propose to bar table them with Your Honour's leave unless the

22     Court wants to look at any more such further incidents and to submit the

23     untranslated copies to the translation department so that in the fullness

24     of time, they can produce the translations for the Court.

25             Does that meet with the Court's approval?  I can go into more of

Page 13290

 1     the documents, but I'm flagging up that the story remains the same.

 2             JUDGE ORIE:  Yes.  You were talking about 30 and 30, but I do

 3     understand there are 30.  There are two fully translated, two to some

 4     extent translated, which means that the remaining 30 or so is the

 5     remaining 26 or so.  Is that --

 6             MR. KAY:  Yes.

 7             JUDGE ORIE:  [Overlapping speakers] ...

 8             MR. KAY:  It's a collection here, Your Honour, and I can't count

 9     them on my feet.  But it is it about that, and they're all flagged up.  I

10     have been through every single one and so has my team, and it's exactly

11     the same position with these daily reports going to the Split garrison

12     commander, and they involve the Knin company incidents.

13             JUDGE ORIE:  Yes.  You'll understand that the lack of translation

14     is my first concern.

15             Mr. Waespi.

16             MR. WAESPI:  Yes, I understand that they could be marked for

17     identification pending translation.  But perhaps we can on the basis of

18     the B/C/S original come to a type of agreement [Overlapping speakers] ...

19             JUDGE ORIE:  Yes.  I wondered whether the parties could stipulate

20     that these are similar type of reports covering also events that happened

21     within the Knin garrison command area of responsibility, but

22     nevertheless, although sent to the Split garrison commander, not been

23     sent to the Knin garrison command.

24             If the parties could agree on that, then I don't think we have to

25     admit all of them in evidence.

Page 13291

 1             MR. KAY:  Yes.

 2             JUDGE ORIE:  I leave it to the parties.  Otherwise, I would

 3     follow the suggestion by Mr. Waespi; that is to say, they will be marked

 4     for identification, we'll wait for translation so that then the other

 5     party could review them and see whether they really are the same kind of

 6     documents and then finally decide upon admission.  But it saves the

 7     effort of translation, if the parties would agree on it.

 8             MR. KAY:  Yes.  And we will have saved an hour and a half or an

 9     hour of Court's time by taking this, which is my main concern.

10             JUDGE ORIE:  Yes.  The parties are invited to report to the

11     Chamber whether any stipulation could be made.

12             MR. KAY:  Yes.

13             JUDGE ORIE:  Please proceed.

14             MR. KAY:  Thank you very much.  Your Honour, it's not the

15     Prosecution's fault that they're untranslated or -- they're just in the

16     database, and we've done a considerable research to get them.

17             JUDGE ORIE:  I did not understand your remarks as blaming the

18     Prosecution for not having translated something they did not intend to

19     use.

20             Please proceed.

21             MR. KAY:  I raised it with Mr. Waespi last Friday.

22        Q.   Just taking this up, there are a couple of other documents that

23     need to be looked at in this context, Mr. Theunens.

24             MR. KAY:  If we, first of all, go do Exhibit D47.

25        Q.   This is a document dated 14th of August, 1995, and I believe

Page 13292

 1     you're familiar with this document, Mr. Theunens.  It's in your report.

 2        A.   Yes, indeed, Your Honours.

 3        Q.   We can see it's from the military police administration to the

 4     battalions of the military police, including the 72nd and 73rd,

 5     implementation of military and police tasks.  It refers to the order of

 6     the 2nd of August, ending 466 that we looked at earlier and you looked at

 7     with Mr. Misetic.  We've no need to go back to that for this exercise.

 8             We can see the description at this date that the commander of the

 9     -- chief of military police administration, General Lausic, who issued

10     this document, is referring to about the completion of Oluja, the units

11     of the military police.  They were organised in line with the order of

12     the 5th of August, 1995.  They took operational zones of responsibility

13     during the operation.  They took over zones of responsibility which

14     weren't in line with a particular directive, obviously for operational

15     reasons, and then based on the above, with the aim of performing military

16     and police tasks efficiently and effectively, an order is made, which

17     we've no need to go through all the provisions in detail as they won't

18     apply and are not relevant for these purposes, but I'm aware you will

19     know what item 1 of 466 is, as I do, concerning combat readiness.

20             MR. KAY:  If we go to the next page, which concerns in

21     paragraph 2, reserve units being mobilized.

22        Q.   Paragraph 3, he invalidates from the earlier order, leaving it up

23     to the commanders of the military police units to decide when they will

24     abolish their forward command posts of battalions and companies.

25             We can see other sequential orders invalidating that order of 2nd

Page 13293

 1     of August, which puts the military police on awareness for combat

 2     operations.  We've no need to look that in detail.

 3             If we go to page 3, paragraph 8 states that military and police

 4     tasks shall be carried out by foot and motorised patrols, independently

 5     as well as together with the police.

 6             9 is about check-points.  Further check-points in 10.  And

 7     relationships between the 73rd and 72nd.  No need to go further in that.

 8             If we look at page 4, the last page, paragraph 14:

 9             "Normalize the command and control structure.  Cover the entire

10     zone of responsibility in daily reports through the duty service."

11             Those are the reports we have just been looking at, aren't they?

12        A.   It is likely that these are the reports.  I cannot be 100 percent

13     sure, but it is likely.

14        Q.   We've seen those reports headed "Duty Service."

15        A.   Indeed.

16        Q.   [Overlapping speakers] ...  and daily reports of what the duty

17     service provide.

18        A.   Mm-hm.

19        Q.   And in separate reports on incidents in the newly liberated area

20     of the state, supply a separate report on the mopping up of the terrain

21     in encoded version or by courier.

22             And then in the daily operative command subordinate the

23     commanders of the newly established platoons and companies of the Knin

24     military police to the most senior commander.  Provide daily reports to

25     these commanders and to the Croatian armed forces in the zone of

Page 13294

 1     responsibility.

 2             Just to let you consider that.

 3        A.   I'm not sure whether the last text you read out is identical or

 4     what I see in paragraph 14 at the end of the paragraph.

 5        Q.   I've read the English.  Maybe the translation booth can just

 6     translate the last two sentences of paragraph 14 from the Croatian on the

 7     screen.

 8             THE INTERPRETER:

 9             "In the daily operations command, the commanders of the newly

10     established platoons and companies of the Knin military police shall be

11     subordinated to the most senior commander of the HV in the area of

12     responsibility and shall submit daily reports to them."

13             THE WITNESS:  Indeed.

14             MR. KAY:

15        Q.   I think the gist of it was in the English in the original.

16        A.   Mm-hm.

17        Q.   Except a different order of words.

18             MR. KAY:  If I can thank the translation booth helping us out.

19             JUDGE ORIE:  Yes.  You also know, Mr. Kay, that is more or less

20     against the rules that we ask translations by the interpreters.

21             MR. KAY:  Yes.

22             JUDGE ORIE:  I hope they will forgive you.

23             MR. KAY:  Yes.

24             JUDGE ORIE:  Please proceed.

25             MR. KAY:

Page 13295

 1        Q.   So looking at that, first of all, it's right, isn't it, there is

 2     not within the evidence a single report from the Knin company of the

 3     military police to General Cermak.

 4        A.   I have not seen a written report by the Knin military police

 5     company to General Cermak.

 6        Q.   Thank you.  That's an exhibit already.  We can see who this

 7     document is sent to, signed by General Lausic, and I now wanted to

 8     continue this with an order two days later that follows on from this

 9     document, which is ending in number 530.

10             MR. KAY:  May we have Exhibit P878 on the screen, please.

11        Q.   This is an exhibit dated the 16th of August, 1995.  We can note

12     the number there that it ends in 538 as this will continue through.  It's

13     sent to all military police units and military police administration

14     departments and sections by General Lausic from the military police

15     administration, and it's order on the implementation of military police

16     tasks.  We can see the reference there to that order we have just been

17     looked at, dated 14th of August, and the one we have previously been

18     familiar with, dated the 5th of August and ending in 485.  And it says:

19     With the change in the deployment of Croatian army units in the newly

20     liberated areas of the Republic ... and organisation, on page 2, of

21     police administrations, police stations of the MUP, conditions have been

22     created for a change in the deployment of units of the military police,

23     and it is ordered and we can see the 69th, 67th, 71st are given various

24     orders on that page.  We have no need to look at that in detail.

25             MR. KAY:  Can we turn to page 3.

Page 13296

 1        Q.   At paragraph 5, there's an issue of the standard of appearance,

 2     conduct, and equipment of military policemen.

 3             And 6 and 7, we need to look at carefully.

 4             "In all zones of responsibility, ensure that commanders of

 5     military police units are familiar with the deployment of Croatian army

 6     units on the line of defence and at camp sites, the strength of the

 7     units, the time and direction of redeployment or departure of military

 8     police units from the zones of responsibility and that they have the

 9     telephone numbers of the commander and vice versa, thus ensuring

10     knowledge of the zone of responsibility on the basis of which the

11     engagement of military police patrols shall also be planned?"

12             And in 7:

13             "By means of military police patrols ... enable the effective

14     implementation of military police authority, work out a schedule for

15     patrols ..."

16             Next page.  Paragraph 9, sending the code names of the commanders

17     and duty services of the newly organised military police units, report

18     changes in channels.

19             And at 10:

20             "I make the commanders of military police units responsible for

21     the implementation of this order, and while supervision of its

22     implementation and expert assistance shall be provided by officers of the

23     military police administration departments ..."

24             And we can see, actually, that Split Military District is missed

25     off and is not on, and this would not have been sent to the list of those

Page 13297

 1     to receive this particular order.  But you see the purpose of this order

 2     from General Lausic is that there be contact with the VP units with the

 3     telephone numbers of commanders of units, so that there be contact with

 4     them.  Isn't that right?

 5        A.   Yes.  That is one of the instructions General Lausic gives to the

 6     addressees of this order.

 7        Q.   Thank you.  This order comes into the chain for -- because it is

 8     referred to later on.

 9             If we now go to Exhibit P877.  This again is from the military

10     police administration, General Lausic, issuing it to the military police

11     battalions, including the 71st and 72nd, to the commander of those

12     battalions.  It's the order on implementation of tasks, efficient

13     cooperation, and you can see the reference there to the three orders that

14     we have looked.  First of all, 530 of 14th of August ; 485 of the 5th of

15     August that we looked at last Friday; and 538 of the 16th of August, the

16     last document that we looked at.  And you can see on the first page that

17     there are reports to the military police administration of houses being

18     burned.

19             MR. KAY:  May we turn to page 2.

20        Q.   That paragraph continues with the reports of crimes being

21     committed by soldiers and civilians wearing Croatian army uniforms on a

22     daily basis, and there's been a communication about cooperation between

23     military and civilian police that has not yielded results, and there have

24     been protested from foreign ambassadors, et cetera, and an order is

25     issued.  And it says:

Page 13298

 1             "The commanders of military police platoons, companies, and

 2     battalions are immediately required to get into touch with the commanders

 3     of police stations and chiefs of police administrations in their

 4     respective areas and to do the following at a joint meeting ..."

 5             And it's a meeting to prevent crime.

 6             Page -- paragraph 2:

 7             "The commanders of military police platoons, companies, and

 8     battalions are required to get in touch immediately with the most senior

 9     Croatian army commander in their zone of responsibility, and to implement

10     item 6..."  of the order we've just looked at, and to remind you of that

11     it is to ensure that commanders of military police are familiar with the

12     deployment of Croatian army units, have contact details, and they have

13     knowledge of the zone of responsibility so that they can plan patrols.

14             Point 3:

15             "Compile records (notes) about meetings held with commanders of

16     police stations and the chiefs of police administrations pursuant to

17     item 1, and about meetings held with Croatian army commanders pursuant to

18     item 2 of the order and clearly specify the conclusions reached at the

19     meetings.

20             "The records from the meetings should be gathered in the commands

21     of battalions (independent companies), and once compiled, they should be

22     submitted to the military police administration by 8.00 in the evening on

23     19th August 1995."

24             And in 4:

25             "Immediately submit a ... report ... about lack of cooperation."

Page 13299

 1             This document goes -- doesn't go to the Knin garrison.  If we

 2     turn to page 3, we can see the addressees of the document.

 3             So, again, it's same question that have I asked you before, and

 4     it is that there is no record of meetings of this nature under point 3 of

 5     General Lausic between the Knin company or the 72nd Battalion with

 6     General Cermak.  Isn't that right?

 7        A.   I would just like to clarify the addressee list.  There is no

 8     garrison commander included, because one would expect that such an order

 9     by General Lausic to the military police units would be forwarded by the

10     Military District Commanders to their garrison commanders as well as

11     other subordinate units.

12             To answer the question, I have not seen any written reports of

13     meetings between General Cermak and members of the 72nd Military Police

14     Battalion, including the Knin Company, even though while checking the

15     documents you provided me, I came across not really diaries, but type of

16     log-books where reference was made to meetings, or these were personal

17     notebooks where reference was made to meetings, but, like, in one

18     notebook I saw the name "Cermak" only twice, whereby I would expect such

19     meetings to happen on a more regular basis.  Maybe this person only

20     attended the meetings twice or there is another reason.  I mean, I can't

21     answer that question.

22        Q.   Was Cermak's name mentioned rather than a meeting with him.  It

23     was just mention of his name?

24        A.   It was actually mention of his name and he giving an instruction

25     but just one line on -- on -- I think there was one for a particular

Page 13300

 1     patrol or one for particular check-point.  Anyway, that is what I came

 2     across this morning when doing searches on the names included -- list of

 3     names of commanders included in the duty rotation documents you provided

 4     me.

 5        Q.   Thank you.

 6             So in these orders here, there is not even the equivalent order

 7     from the Split Military District commander to General Cermak applying

 8     this point 3 as a system of command and reporting.

 9        A.   I have not seen any follow-up order by the commander of the Split

10     Military District in relation to this order.  I mean, to none of his

11     subordinate units.

12        Q.   Thank you.

13             And this was an exhibit already.  And then the last document in

14     this chain is 65 ter 1879.

15        A.   Can I just add that --

16        Q.   Yes?

17        A.    -- I have connected the P877 it my report to D48, the letter by

18     Mr. Moric to General Lausic, in which Mr. Moric complains about the

19     ongoing burning and other crimes by people in uniform.  And this is it on

20     English page 229, part 2 of the report.

21        Q.   Yeah.

22             MR. KAY:  Wrong document, I'm afraid.  We will just do a little

23     bit of research to my right on this document.

24             The numbers were in the wrong order.  65 ter 1789.  Thank you.

25     Thank you, Mr. Mak.

Page 13301

 1             This is dated the 19th of August.  It is from the 72nd Military

 2     Police Battalion.  It is sent to General Lausic.  I can tell you that on

 3     the last page it's from the commander, Mihael Budimir, Major Budimir, and

 4     it concerns as we can see in the heading "full implementation of military

 5     police tasks in the liberated area," and it refers to the order 547 of

 6     the 18th of August, 1995, which is a document which references to the

 7     footnote you've just referred concerning cooperation between the MUP, and

 8     a report is filed in the 72nd, in paragraph 1, he reports to

 9     General Lausic that coordinating meetings were held with Mr. Radalj of

10     the Split-Dalmatia administration.  Major Sipcic was present.

11     Check-points being agreed.  He refers to Sinj coordinating meeting

12     between Bilobrk, Commander and Captain Jenic of 5th Company.

13             And 3, coordinating meeting with the Sibenik police

14     administration, and details on that.

15             Let us turn to the last page, page 3, and look at paragraph 4.

16        Q.    "Coordinating meeting was not held in Zadar-Knin police

17     administration because, according to Mr. Cetina, head of the police

18     administration, he had orders to establish contact at the level of

19     command of the 71st and 72nd Military Police Battalion, and no orders on

20     establishing contact at lower levels.  Also, he said, he would organise a

21     meeting at the level of commands of these two military police battalions,

22     which carry out military and police tasks in the territory of the police

23     administration."

24             Again, can you see that, that the Knin -- Zadar-Knin police

25     administration was operating or wanted to operate at the level of the

Page 13302

 1     command level of the 72nd Battalion, which would have been Major Budimir

 2     himself.  Is that right?

 3        A.   That is correct.

 4        Q.   And, again, there's no mention in these coordinating meetings of

 5     parties and who is to be involved that in that area, which includes Knin,

 6     that General Cermak was the party to hold such meetings on behalf of the

 7     military police with the police.

 8        A.   65 ter 1789 which is discussed on English page 230, part 2 of my

 9     report, is the response by Major Budimir to the instruction Lausic

10     included in P877, where he ordered the military police battalion

11     commanders to have meetings, on one hand, with the civilian police, on

12     the other hand, with the HV commanders in the area, and to inform him,

13     i.e., Lausic, of the results of these meetings, and so this 65 ter 1789

14     only covers meetings between military police and civilian police.

15        Q.   Thank you.

16             MR. KAY:  May this document be made an exhibit, Your Honour.

17             MR. WAESPI:  No objections.

18             JUDGE ORIE:  Madam Registrar.

19             THE REGISTRAR:  Exhibit D1071, Your Honour.

20             JUDGE ORIE:  D1071 is admitted into evidence.

21             MR. KAY:  Thank you.

22             And then the last document we'll look at this just to round it

23     off - we could go further down the chain but I'm giving a snapshot of the

24     relevant matters - is 65 ter 2534.

25        Q.   This is a document dated the 30th of August, 1995, and it's from

Page 13303

 1     General Lausic to the military police battalions, including 71st, 72nd,

 2     73rd.  And it concerns these coordination meetings you've just referred

 3     to, Mr. Theunens.  And in the aim of having them more effective

 4     cooperation, and he makes an order based on the 18th of August document.

 5             MR. KAY:  If we can turn to page 2.

 6        Q.   The -- after successfully carrying out Storm, military police

 7     units except for the 68th, established full military and police control

 8     over their areas, the commanders of these military police units are

 9     responsible for maintaining public law and order, crime control, and

10     security of road traffic for members of the Croatian army, they will

11     ensure these tasks are carried out by executing the authority of the

12     military police working in close coordination with commanders of police

13     stations, chiefs of police administrations.  He refers to the other

14     orders that they regulated the obligation to conduct coordination

15     meetings with commanders of police stations and chiefs of police and make

16     joint reports.  And then in this order, commanders of the military police

17     units shall determine the level of coordination.  They've got to

18     cooperate.

19             If we turn to page 2, we can see that paragraph 2 that the daily

20     exchange of daily reports, an unobstructed system of communications

21     between duty services and prompt response following a call.

22             In 4, that commanders of military police battalions and military

23     police independent companies are responsible for failure to hold

24     cooperation meetings or failure to have effective and practical

25     cooperation.

Page 13304

 1             Just dealing with this order, Mr. Theunens, it's right to say, is

 2     it not, that, in fact, a very structured system of reporting as well as

 3     duties were issued by General Lausic to the commanders of the military

 4     police battalions?

 5        A.   Indeed.  And that is actually also discussed in my -- in part 2

 6     of my report, where I address the orders issued by General Lausic prior

 7     to the launching of Operation Storm.  This particular document here, 65

 8     ter 2534, I have addressed at English page 231 of part 2 of the report,

 9     and I see it more in light of the -- what one could call ongoing

10     complaints by Mr.  Moric and other civilian police officials about what

11     they call a lack of military police cooperation in combatting the crimes

12     that are still being committed in the area that was recaptured during

13     Operation Storm.

14        Q.   Thank you.  To summarize that information, and there are a large

15     number of orders.  We're not going to go through every single one.  They

16     are detailed in your report.  Others have been in evidence here.  They

17     indicate, do they not, that these were exceptional times for the military

18     police, in relation to the need to exercise their duties.

19        A.   I'm not sure what you mean by the word "exceptional."  But when

20     you look at the documents and not only the military police documents but

21     also documents, for example, Split Military District, one can see that

22     problems that are observed from the very beginning, i.e., the burning and

23     looting and other examples of lack of discipline continue to be reported

24     notwithstanding various orders to the operational commanders through the

25     operational chain of command as well as to the military police, both via

Page 13305

 1     the operational chain, as well as via the professional chain, but

 2     nevertheless these problems continue to be observed, and, for example,

 3     here I believe this document, yeah, this is from the 30th of August, so

 4     almost three weeks after the conclusion of Operation Storm.

 5             And that -- I don't want to call or use the expression

 6     "exceptional," but that is unusual from the military context, at least.

 7        Q.   It also progresses as we were able to see when Mr. Misetic

 8     questioned you last week, or the week before, my apologies, to the

 9     meeting in Plitvice, where the Ministry of Interior, military police

10     administration, had what was, in fact, a second meeting, in relation to

11     the crimes that had been continuing within the previously occupied areas.

12             Isn't that right?

13        A.   Could you just remind me of the date of the Plitvice --

14        Q.   That's 16th of September.  We can ...

15        A.   I have a reference to a meeting in Zagreb on the 15th, which is

16     on English page 237 and that is Roman V, and it is a typo.  It should be

17     15, instead of 16th of September.

18        Q.   You'll recollect you looked at this with Mr. Misetic.  It arose

19     because General Lausic made a statement, a public statement, that the

20     military police and civil police were responsible for the prevention of

21     crimes.

22        A.   Indeed.  I remember --

23        Q.   Was it the Jezerici.  Pardon my expressions.  I'm known as a not

24     very able linguist but J-e-z-e-r-i-c-i Hotel in the Plitvice Lakes.

25        A.   I remember seeing document, yes, I mean, Mr. Misetic.

Page 13306

 1        Q.   It's significant because at that meeting there was the commanders

 2     of the police administrations, including Mr. Cetina and Mr. Romanic.

 3     There was General Lausic.  It's Exhibit D595, and, apologies, the meeting

 4     was held on the 15th, and if you'd just like to look at this document

 5     while here, Exhibit D595.

 6        A.   Yes, I have in my report on English pages 237 to 239.

 7        Q.   Yes.

 8        A.   Part 2.

 9        Q.   We can see -- this is, in fact, the second meeting.  There had

10     also been one here in August, on -- around the 18th of August that

11     preceded this, and there had also been a meeting of the military police

12     in Knin on the 13th of August.

13             If we look at Exhibit D595, coordination meeting, representatives

14     of MUP.  We're looking at the military police administration notes.

15        A.   Mm-hm.

16        Q.   Sorry, Jezero.  My mistake.

17             And we can see Mr. Moric, Mr. Benko, Mr. Lausic, Biskic, heads of

18     the military police battalions, page 2.

19             Mr. Moric is discussing crimes, measures taken against

20     perpetrators, and then each of the police administrations gives a report.

21     We can see Mr. Cetina there.  Page 3, chief of Knin police administration

22     and the others' report.

23             Page 4, Colonel Budimir.  I have been referring to him as Colonel

24     and Major because the documents say Major as well in their translation,

25     but it's the same individual.  He gives a report for the 72nd, saying

Page 13307

 1     that there was a large area of responsibility, didn't agree about their

 2     not being enough manpower.  He was satisfied with security, public order,

 3     road traffic safety and refers to disposal of rubbish.  Other police

 4     commanders.

 5             We can see at page 5, General Lausic concluded the reports of his

 6     commanders and said:

 7             "Members of the MUP and the military police are the promoters of

 8     the state policy and the only people responsible for its implementation

 9     are present at this meeting.  The objective is clear:  Protection of

10     people and property and creation of positive security ..."

11             Commanding well ... and cooperation among civilian and military

12     police, he describes, is visible only on the ground.  It's necessary to

13     coordinate the communication system, and he had visited the terrain

14     necessary to identify units in certain areas of responsibility, find out

15     everything about them.  "That is a duty of the patrol that must detect

16     the HV unit ..."

17             Page 6, Mr. Benko agreed with the need to exchange information,

18     cooperate with courts.  Mr. Moric didn't wish to shift responsibility and

19     supported the remarks by General Lausic and said that everybody is

20     engaged in looting from civilians to representatives of civilian

21     authorities, et cetera.  The Court has seen this document before.

22             And in page 7 Brigadier Biskic commenting on the minutes to

23     General Lausic states he is not satisfied with them.  The notes were not

24     taken accurately, and he suggests they stay only in our archives, and we

25     don't send it to anybody.

Page 13308

 1             Right, have I done a lot of talking of this, setting the -- the

 2     scene for what is a big subject, but what I'm say something this.  When I

 3     use the words "exceptional," this is not ordinary times of regular

 4     military policing, is it, we are discussing crimes on a large scale,

 5     reports of housing being burnt, people being killed, property taken.

 6     This is it not crime on a large -- on an ordinary scale, is it?

 7        A.   It is it not crime on an ordinary scale, but I think that the --

 8     the statement General Lausic makes here on the 16th reflects his, I would

 9     say, state of despair more than a month after the ending of Operation

10     Storm, and after, as I said, a lot of orders being issued both -- I mean,

11     not only both but the chief of the Main Staff in order to have the

12     operational commanders maintain or restore discipline, prevent burning,

13     prevent looting.  We see that these orders are going forwarded throughout

14     chain of command, that these orders are often repeated.  We see, as I

15     mentioned also orders to the military police through the two chains, and

16     still, 16th of -- excuse me, 15th of December, it appears there is --

17     that there is no significant improvement in the situation.

18             I mean, I could continue here.  We have seen another document, I

19     think it was an analysis by General Lausic on the use of the military

20     police during and after Operation Storm.  These documents show what is

21     already explained in the doctrine, that is, that the commander, i.e., the

22     operational commander, is the first one who is responsible for

23     maintaining discipline.  And we can see that in Article 4 of D32, the

24     service regulations.  That's where it starts.

25             And, of course, military police can be called to assist.

Page 13309

 1     Civilian police can be called to assist.  But they are not the first who

 2     can enforce discipline in the units because it would mean that you would

 3     -- would need to have many more military policemen.

 4        Q.   Thank you.  But General Lausic has a responsibility to make his

 5     command of the military police effective, doesn't he?

 6        A.   That is correct.

 7        Q.   And Major or Colonel Budimir, commander of the 72nd, has his duty

 8     to make his command of that battalion effective, doesn't he?

 9        A.   These duties apply to all commanders, independent of the type of

10     unit or the level they're operating at.  It's from the highest to the

11     lowest level and independent of the type of unit.

12        Q.   Yes.  So whatever responsibility other people have, just looking

13     at the military police, that's their job.  They're there for that very

14     reason, is to enforce discipline and prevent crimes being committed by

15     the forces.  Isn't that right?  That's the whole purpose of their job.

16        A.   The job of the military police or the duties of the military

17     police are specified in Article 10, and enforcing discipline or restoring

18     discipline -- I'm sorry.  It was Article 10 of P880, the 1994 military

19     police rules.  Enforcing discipline is included in these tasks.  However,

20     with the -- how would I explain that?  However, keeping in mind, I'm

21     sorry, that military discipline is one of the -- I will call it, core

22     duties of the operational commander.  He is the first one who is

23     responsible, and it's only when there are significant incidents or when

24     the operational commander fails to fulfil his duties that it's only then

25     that the military police as well as the military justice system, and

Page 13310

 1     military discipline system, of course, I mean, the further steps

 2     intervene.

 3        Q.   And they are also to be deployed as a presence to prevent crime,

 4     aren't they?

 5        A.   Yes, indeed.  The deployment of military police should have a

 6     deterring effect.  Or the presence of military police should have a

 7     deterring effect.

 8        Q.   Yes.  That deals with this section.

 9             MR. KAY:  Your Honour, may 65 ter 2534 be made an exhibit,

10     please.

11             MR. WAESPI:  No objections.

12             JUDGE ORIE:  Madam Registrar.

13             THE REGISTRAR:  Exhibit D1072, Your Honours.

14             JUDGE ORIE:  D1072 is admitted into evidence.

15             MR. KAY:  And the next thing I was going to turn to having

16     finished this subject is for you to comment on the documents that you

17     wanted to, Mr. Theunens, before we move to another section of the

18     military police.

19             If you want to make that comment now.  Is it possible in the next

20     two minutes?  Thank you.

21             JUDGE ORIE:  Before we do so.

22             MR. KAY:  Oh, sorry, Your Honour.

23             JUDGE ORIE:  I see a reference to the 16th of December in page

24     27:21 which is not clear it me.  And still the 16th, excuse me 16th of

25     December.

Page 13311

 1             MR. KAY:  I said September.

 2             JUDGE ORIE:  Yes.  And I take it that was the 15th.

 3             MR. KAY:  Yes.

 4             JUDGE ORIE:  And the correction was from the 16th to the 15th.

 5             MR. KAY:  Yes.

 6             JUDGE ORIE:  So mistake hardly ever comes along, so now we have

 7     the 15th of September as the relevant date.

 8             MR. KAY:  Yes.

 9             JUDGE ORIE:  Thank you for that.

10             Mr. Theunens.

11             THE WITNESS:  Your Honours, I reviewed these documents.  With the

12     exception of two documents I can discuss later, they all -- they're all

13     internal military police documents covering the rotation of the members

14     of the Knin company as well as traffic police and even -- and also

15     members of the criminal police from the time-period mid of August 1995 to

16     November 1995.  As I explained earlier, when Mr. Kay asked me questions

17     about these documents, these are, in my view, internal military police

18     documents which are only sent through the military police chain.  So

19     there is no reference made to operational commanders or garrison

20     commanders or anyone else outside the military police chain.

21             There was one document -- I don't know whether I have to identify

22     it or --

23             JUDGE ORIE:  What I suggest.

24             MR. KAY:  [Overlapping speakers] ...

25             JUDGE ORIE:  What I suggest is the following:  That you give the

Page 13312

 1     two numbers so that Mr. Kay can look at these documents during the next

 2     break.  And then perhaps after the break, Mr. Kay, you can invite the

 3     witness to give comments on those documents once he has given you the

 4     numbers and once you have been able to focus during the break on these

 5     documents.

 6             MR. KAY:  Thank you.

 7        Q.   If could you give the numbers.

 8        A.   The first one is 2D07-0099.  And the second is 65 ter 5631, which

 9     is footnote 968 in part 2 of my report.  I don't think I have to comment

10     on that last document in addition, but I just wanted to highlight it was

11     not a rotation document.

12             JUDGE ORIE:  If that's all you wanted to add that, then we have

13     dealt with that one.

14             May I take it, then, that after the break that you will invite

15     the witness to give his comments on 2D07-0099.

16             MR. KAY:  Thank you.

17             JUDGE ORIE:  Then, Mr. Theunens, first of all, thank you very

18     much for having reviewed these documents over the weekend.  I'll ask the

19     usher to escort you out of the courtroom because I'd like to hear from

20     the parties information on other matters.

21                           [The witness withdrew]

22             JUDGE ORIE:  Mr. Kay, I invited the parties who have not yet

23     finished their cross-examination to give the Chamber an impression as to

24     how matters stand at this moment.

25             MR. KAY:  Yes, Your Honour, I anticipate I will be able to finish

Page 13313

 1     by the end of the next session.

 2             JUDGE ORIE:  Then looking at you Mr. Mikulicic.

 3             MR. MIKULICIC:  Yes, Your Honour.  In that case I will start

 4     today in the last session, and I will be -- and I will need probably the

 5     whole day tomorrow.

 6             JUDGE ORIE:  And your initial assessment was --

 7             MR. MIKULICIC:  Was one day.

 8             JUDGE ORIE:  One day.

 9             MR. MIKULICIC:  And that will be one day plus one session that

10     Mr. Kay kindly left for me.

11             JUDGE ORIE:  Yes.  Which, of course, gives a different impression

12     on time taken.

13             Mr. Waespi, how much time would --

14             MR. WAESPI:  Very limited, less than 15 minutes at this point.

15             JUDGE ORIE:  Less than 15 minutes.

16             Mr. Misetic, you're on your feet as well.

17             MR. MISETIC:  In light of some answers that the witness has given

18     in the last 15 minutes, I would need no more than 15 minutes of re-cross,

19     Mr. President.

20             JUDGE ORIE:  Well, you are already --

21             I think we have -- there was a witness who is supposed to appear

22     on Thursday morning where we cannot that easily change, Mr. Waespi.

23     Could you give us an explanation also as to the schedule for the next

24     witness.

25             MR. WAESPI:  Yes.  This is correct.  He -- perhaps we go into

Page 13314

 1     private session for a moment.

 2             JUDGE ORIE:  We move into private session.

 3                           [Private session]

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 13315











11  Page 13315 redacted. Private session.















Page 13316

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

 7             THE REGISTRAR:  Your Honours, we're back in open session.

 8             JUDGE ORIE:  Thank you, Madam Registrar.

 9             We will have a break and resume at quarter past 4.00.

10                           --- Recess taken at 3.53 p.m.

11                           [The witness entered court]

12                           --- On resuming at 4.20 p.m.

13             JUDGE ORIE:  Mr. Kay, before I give you an opportunity to put the

14     document the witness indicated to the witness, I'll first give an

15     opportunity to the witness to clarify an answer he has given on Friday.

16     At least I was informed, Mr. Theunens, not knowing what it was about,

17     that there was one answer of last Friday you would like to clarify.

18             THE WITNESS:  Thank you, Your Honours.

19             This has to do with the questions by Mr. Kay about the

20     appointment of members of the 72nd Military Police Battalion to ensure

21     the personal protection of General Cermak, which corresponds with pages

22     13268 and 13269 of the transcript.

23             Mr. Kay showed D770, and I explained why I considered regular

24     that the military police administration actually ordered the 72nd

25     Battalion to ensure this kind of protection to General Cermak.  I think

Page 13317

 1     we need to put D770 in context, and that context is given by P882, which

 2     is referred to in footnotes 901 and 902 of the second part of my report,

 3     English page 221.

 4             P882 is a report by General Lausic about the activities of the

 5     military police units, and on the English page 4, we see an entry,

 6     according to which, four members of the 66th Military Police Battalion

 7     have been assigned to ensure the personal protection of General Cermak.

 8     I don't have the date with me of P882, but I think it is the 6th of

 9     August.

10             The 66th Military Police Battalion is a unit which is directly

11     subordinated to the Main Staff of the Croatian armed forces, and that can

12     be found in 65 ter 2889, which is discussed in part 1 of my report.  The

13     reason why I think it's useful to clarify D770, because, based on 65 ter

14     2889, there are members of the 66th Military Police Battalion who, until

15     22nd of August, i.e., the date of D770, ensure the personal protection of

16     General Cermak, and then this duty is handed over to the 72nd Military

17     Police Battalion, and taken into account the level of units we're talking

18     about, and as I mentioned, the specialized nature of the task, it is

19     logical that it is a member of the military police administration who

20     issues the order for the handover.

21             Thank you, Your Honours.

22             JUDGE ORIE:  Thank you for that clarification.

23             Mr. Kay.

24             MR. KAY:  Thank you.

25             Shall we bring up 2D07-0097, which was one of the bar table

Page 13318

 1     documents submitted, and after this exercise we'll remove from that and

 2     make it an exhibit.

 3        Q.   It's a document dated the 25th of October, 1995.  It's from the

 4     then-commander --

 5             JUDGE ORIE:  Mr. Kay, I'm a bit confused.  I see on the

 6     transcript from before the break, that reference was made one time by

 7     you, and I repeated that from the transcript, and that was 0099, last

 8     four digits.  I do not know whether this creates any confusion, whether

 9     the confusion was before the break or now.

10             MR. KAY:  That's the English number, and I have been given the

11     Croatian number, I believe.  Yeah, it's the same document, Your Honour.

12             JUDGE ORIE:  Numbers in different languages are the same, in my

13     view, but I do understand it is a reference to a document in Croatian.

14             MR. KAY:  Yes.

15             JUDGE ORIE:  Thank you.

16             MR. KAY:  We will confirm it with the witness.

17             JUDGE ORIE:  Thank you.

18             MR. KAY:

19        Q.   Is this the document you were referring to, isn't it?

20        A.   Indeed.  And I read out the number that is in the bottom right

21     corner on the English translation.

22        Q.   Yeah.  This is dated the 25th of October, 1995.  It's from the

23     commander of the Knin police station at that time, Zvonko Gambiroza, from

24     the Zadar-Knin police administration, as we can see.  It's addressed to

25     the commander of the 72nd Military Police Battalion in Knin, and it's the

Page 13319

 1     request for an interview of two Croatian army soldiers who'd been noticed

 2     in a farm house in Podinarje, or near it, and a fire was noticed and

 3     asking the military to conduct interviews with those two soldiers.

 4             And in the second page, we can see the information that was given

 5     from a Milan Konforta, and obviously of the 7th Knin police station, and

 6     giving the details.

 7             Mr. Theunens, you wanted to make a comment.

 8        A.   Yes, Your Honours.  The only reason why I highlighted this

 9     document is that it is a different document from the other ones in the

10     package, i.e., all the other documents, expect for the second one which

11     we discussed before the break, deal with the rotation of military

12     policemen in Knin, whereas this deals with the civilian police requesting

13     the military police to interview two members of the HV in relation to the

14     setting on fire of a house.  That was the only reason.

15        Q.   We knew that, and, actually, we were using that bar table as a

16     clearing up mechanism to reduce documents that didn't require your

17     commenting any further on them, as you knew you wouldn't have a comment

18     on this document.

19             JUDGE ORIE:  Mr. Theunens, you expected -- at least you saw all

20     the other documents to be of a certain kind, and you just noticed now

21     that at least this one is not of a similar kind as the other one,

22     although Mr. Kay may see similarities on which you may not have focussed.

23             MR. KAY:  And Mr. Waespi and I will be dealing with matters

24     through the usual channels.

25             JUDGE ORIE:  That's fine.

Page 13320

 1                 We've dealt with the document.  I take it that you -- as you

 2     indicated, you don't want to tender it or leave it as a bar table.

 3             MR. KAY:  We'll leave it with the bar table and not confuse

 4     matters, Your Honour.  Thank you.

 5             JUDGE ORIE:  Yes.

 6             MR. KAY:  Thank you.  We'll turn to another section now, which

 7     involves criminal reports of the 72nd Military Police Battalion, Knin

 8     Independent Company.

 9        Q.   If we look at the first document, Exhibit D58, your footnote

10     1554, and if it helps, 65 ter 2681.  This document has been exhibited,

11     and there are about another 20 like it, Mr. Theunens.  I think you

12     recognise this document as it's in your report.  Isn't that right?

13        A.   Yes, I do.

14        Q.   Yes.  We have been through the 65 ter list and other sources of

15     documents to collect these together into a package of about 20.  They are

16     the criminal reports from the Knin company, dated the 5th of September,

17     the first one.  It goes to the Split Military District military

18     prosecutor's office.  We can see the substance of -- of the report

19     against a man called Burazer, apologies again, B-u-r-a-z-e-r, and if we

20     turn to page 2, it states there, reasonable grounds that he had committed

21     -- suspecting he committed the crime of aggravated theft.  It says:

22     "Method of execution."  I think it means how the offence was committed

23     rather than anything else, and what was to be stolen.

24             We go to page 3, we see the Knin Military Police stopped him in

25     the area of Knin at 1610, took this man into custody.  The goods that

Page 13321

 1     he'd been suspected of stealing were stored, and Colonel Budimir sends

 2     this to the military prosecutor's office at Split Military District.

 3             So a Knin Company report, not sent to the garrison commander, to

 4     General Cermak.  Any comment that you'd like to make on that?

 5        A.   Your Honours, in my view, this is a report which is -- as Mr. Kay

 6     already pointed out when he read out the translation, method of

 7     execution, this is a type of report between military police and military

 8     prosecutor.  It would be logical that the military police has also had

 9     contacts with the unit of the person who is subject of this report, and

10     this may include contacts or exchange of information with the garrison

11     commander.  But as I said earlier, I have not seen any documents by the

12     military police on crimes being sent to General Cermak.

13             I have only included in my report, I think, one or two reports by

14     the chief of the civilian police which were sent to General Cermak.

15        Q.   Thank you.  This document is already an exhibit, Your Honour.  We

16     will look at just two more, and then I will, as is the practice now,

17     which I think meets Your Honours' approval, bar table the rest of exactly

18     identical documents.

19             JUDGE ORIE:  Yes, with the proviso that either the witness has an

20     opportunity to check whether it is a similar kind of document or that you

21     and Mr. Waespi agree on the similarity of these kinds of documents.

22             MR. KAY:  Thank you.

23             Can we have 65 ter 2260.

24        Q.   This is a similar criminal report, again from the Knin Company of

25     the military police, Mr. Theunens, set out in the same way.  It's at your

Page 13322

 1     footnote 1554 again, so it's the second document you cite.

 2             It concerns a criminal report against an individual.  We can see

 3     that's it's filed against him on the first page, who he is, what he is.

 4             MR. KAY:  If we turn to page 2 --

 5        Q.   We have now the suspicion that he committed a crime of aggravated

 6     theft in Golubic, Knin.  This time manner of commission.  We can see that

 7     it's in the Knin area, and he was arrested by Knin military police, taken

 8     to their premises under escort.  Goods stored there.

 9             Page 3, we can see there that it's signed by Colonel Budimir, and

10     again, it is not a document that is referenced to General Cermak.  Am I

11     right to say that your answer for this document will be the same as the

12     last?

13        A.   Yes, Your Honours.

14             MR. KAY:  May this document be made an exhibit, please, Your

15     Honour.

16             MR. WAESPI:  No objections.

17             JUDGE ORIE:  Madam Registrar.

18             THE REGISTRAR:  Your Honours, this is will be Exhibit D1073.

19             JUDGE ORIE:  D1073 is admitted into evidence.

20             MR. KAY:  We shall just do one more.  It's at your footnote 1552.

21     It's 65 ter 2262.  And I do this so that there's a body of evidence about

22     it, Your Honour, in the transcript, which maybe helps the parties and the

23     Court.

24             Another one dated the 7th of September, 1995.  Again from the

25     Knin Company.  Criminal report, Split Military District, military

Page 13323

 1     prosecutor's office.  We can see there the soldier against whom this

 2     report is filed against.

 3        Q.   Taking an issue here, we know that Colonel Budimir is the

 4     commander of the 72nd.  Isn't that right, Mr. Theunens?

 5        A.   Yes.  Mihael Budimir is the commander of the 72nd Military Police

 6     Battalion, yeah.

 7        Q.   Yes.  He is filing this document on behalf of the Knin Company of

 8     the military police, isn't he?

 9        A.   Yes.  And it's the same procedure as was with the two previous

10     documents you showed.

11        Q.   Yes.  And he is filing this document instead of the commander of

12     the Knin company who, at this time, was lieutenant Orsulic?

13        A.   I'm not sure whether it was up to the company commander or the

14     battalion commander to file these reports with the military prosecutor's

15     office, so I can't answer the question.

16        Q.   Thank you.

17             If we just look at page 2, we can see what he is suspected of

18     doing in the Knin area, aggravated theft.  We can see the goods.

19             And on page 3, we can see that the goods were brought to the

20     premises of the military police Knin Independent Company, except for the

21     two sheep, apparently.  And on page 4, it's signed by Colonel Budimir.

22             And would it be right that your answer, in relation to this

23     document and the General Cermak question, would be the same as your

24     answer to the first?

25        A.   Yes.  And of interest in the overall context is that the alleged

Page 13324

 1     perpetrator is described as a displaced person or former displaced person

 2     who is a member of the 134th Home Guard Regiment.

 3        Q.   Thank you.

 4             MR. KAY:  Your Honour, may this document be made an exhibit.

 5             MR. WAESPI:  No objections.

 6             JUDGE ORIE:  Madam Registrar.

 7             THE REGISTRAR:  Exhibit D1074, Your Honours.

 8             JUDGE ORIE:  D1074 is admitted into evidence.

 9             MR. KAY:  Your Honour, we will be bar tabling the rest of this

10     file in due course, and Mr. Waespi and I will be liaising.

11             Can we go to 2D07-0039.

12             THE REGISTRAR:  Could the counsel please repeat the number.

13             MR. KAY:  2D07-0039.

14             Oh, we don't have it.  Okay.  All right.  If we don't have it, we

15     don't have it, but -- and it's one we can put into the bar table and deal

16     with that way with Mr. Waespi.

17             Oh, we do have it.

18                           [Defence counsel confer]

19             MR. KAY:  We have it -- I'm sort of staring at that time in

20     e-court myself, so ... if I've got it, everyone else must have it, I

21     should imagine.

22             Have we got it now?  There we have it.  No.

23        Q.   A slightly different document but another report, and it's from

24     -- it's signed by a staff-sergeant Runjic, R-u-n-j-i-c, of the 72nd

25     Military Police.  We can see it's a report to Lieutenant Orsulic, the

Page 13325

 1     commander of the Knin company of the 72nd.  He is reporting on work of

 2     the crime military police pursuant to his verbal order of the 11th of

 3     September 1995 and in conjunction with the report on work of the crime

 4     military police and submitted criminal reports.  And he says:

 5             "We have delivered you a list of reported cases," which he sets

 6     out, and says:  "These criminal reports were filed in the premises of the

 7     crime military police of the Knin independent company."  And the next

 8     page he signs it.

 9             Any comment you would like to make on this document,

10     Mr. Theunens?

11        A.   Maybe if I could see the bottom of the page.

12             No, I mean, it's -- the author, he responds to a verbal order as

13     received from his company commander, and he provides him with the

14     requested information.

15        Q.   Thank you.

16             MR. KAY:  May this document be made an exhibit, Your Honour.

17             MR. WAESPI:  No objections.

18             JUDGE ORIE:  Madam Registrar.

19             THE REGISTRAR:  Exhibit D1075, Your Honours.

20             JUDGE ORIE:  D1075 is admitted into evidence.

21             MR. KAY:  Thank you.  That concludes these questions on these

22     matters.  And the next matter I would like to go to is the civilian

23     police but in an a very general way, as we have already looked at a

24     number of Mr. Moric's documents.

25        Q.   And I'd like to put this matter to you, first of all.  Do you

Page 13326

 1     agree that the Ministry of the Interior had a -- an organised and

 2     hierarchical structure in which subordinates reported to their superiors

 3     within the MUP?

 4        A.   Yes.  And it can be found also in part 1 of the report.  There is

 5     a structure for the police as well as for the special police whereby we

 6     have a -- various bodies existing at different levels from -- from top to

 7     bottom.

 8        Q.   Shall we see Exhibit P962, where we see this structure from the

 9     minister of interior, Mr. Jarnjak, going through Mr. Gledec, down to the

10     assistant ministers, and we have already looked at a number of these

11     names during our questions, Mr. Moric, Mr. Zidovec, Mr. Cemerin,

12     C-e-m-e-r-i-n, Mr. Djurica, Mr. Cetina there in Zadar-Knin police

13     administration.  We've seen some of those names in the documents that

14     we've looked at, going down to Mr. Romanic, Mr. Gambiroza, and then down

15     to the police stations on the ground.

16             Do you agree there are no reports from the Ministry of the

17     Interior, from these MUP officials, to General Cermak?

18        A.   Is the question about when we look at the various levels, is the

19     question about the level of the Ministry of Interior, or does the

20     question also cover the civilian police office, Kotar-Knin police

21     administration headed by Cedo Romanic?

22        Q.   Yeah.  Mr. Romanic there reporting on crimes or his duties to

23     Mr. Cermak, General Cermak.

24        A.   I have included in section 3, i.e., the section on the Knin

25     garrison command, a few examples of reports on crimes Mr. Romanic sends

Page 13327

 1     to General Cermak, but my understanding from the documents is that

 2     Mr. Romanic sends this information to Mr. Cermak -- to General Cermak

 3     following a request of the latter.

 4        Q.   Exactly.  Yeah.  I'm glad you put that way because it shortened

 5     matters considerably, and those are documents that we are aware of that a

 6     report or inquiry was made, and Mr. Romanic replied in those terms.

 7             If we look at 65 ter 3500, we can see an example of this, which

 8     is Exhibit D487.

 9                           [Defence counsel confer]

10             MR. KAY:

11        Q.   And we can see the terms here of a particular incident, on the

12     basis of your verbal request for a statement, a request being made on the

13     8th of August.  We can see the detail there.  And --

14             JUDGE ORIE:  Mr. Kay, perhaps unnecessary to remind you that this

15     document is under seal, will not be shown to the public, but will you

16     please keep this in mind.

17             MR. KAY:  Yes, yes.

18             JUDGE ORIE:  Please proceed.

19             MR. KAY:

20        Q.   We won't go into the detail of the document.  But we can see it's

21     an example of what you have said in relation to reports being sent as a

22     result of a request and informing General Cermak about such a matter.

23             There it is.  We have no need to go into that any -- any further.

24     And I'm not going to re-tread old ground.

25             On another matter now, and it concerns page 254 of your report

Page 13328

 1     where you refer to the suggestion that General Cermak has the authority

 2     to investigate crimes and/or other irregular acts or order such

 3     investigations.  And this arises from paragraph C in your report on that

 4     page, and it -- it concerns that aspect where he is the principal point

 5     of contact for the international community.

 6             Is it right that this proposition by you is based on the

 7     statements made by General Cermak to the international community that

 8     matters would be investigated or considered or they would -- that -- that

 9     he would report to them in relation to crimes or matters involving crimes

10     that they had brought to his attention?

11        A.   Indeed, it is based on -- on letters have I seen -- I have seen

12     letters signed by General Cermak where he makes such a commitment, and,

13     for example, in P1147 he writes that he has ordered the military police

14     to conduct an investigation.

15        Q.   Yeah.  Whether he can in law, can you provide any authority for

16     that, within the legal provisions of the Croatian state at the time,

17     whether he actually had, in law, the authority to investigate someone who

18     was not a subordinate, because Article 19 of the Code of Military

19     Discipline, which we looked at on the first day of my cross-examination

20     with you, concerns subordinates.  But in law, whether what he is saying,

21     whether -- whether there is any authority for that.

22        A.   There are various Articles in the Code of Discipline that

23     indicate that the commander, including the garrison commander, has the --

24     for example, the duty to collect or to take all measures to collect

25     evidence.

Page 13329

 1        Q.   Shall we look at that first.  Which Article are you citing?

 2        A.   61.

 3        Q.   Let's go to Article 61.

 4             MR. KAY:  Can we have Exhibit P1007 on the screen, please, and if

 5     it could be put to page 16 of the English version.

 6        Q.   I put it to you about a subordinate, and that's what this Article

 7     refers to.

 8             "On learning of a disciplinary violation by a subordinate, the

 9     superior officer in the position of company commander, corresponding

10     position or higher, must immediately take all necessary measures to

11     collect relevant evidence and inform his superior officer."

12             And so that concerns the subordinate.

13             Under Article -- that is a disciplinary violation by a

14     subordinate.

15             If we go to Article 19, page 7:  "Superior officers shall decide

16     disciplinary responsibility of their subordinates ..." And we can see

17     what that refers to.

18             We dealt with this at the beginning of cross-examination, and I

19     don't want to repeat over old ground if there's no need for it, and that

20     concerns disciplinary measures.  These are terms known to us.

21             Shall I put a matter to you and deal with it, or do you have

22     anything --

23        A.   I wanted to add something.

24        Q.   Yes.

25        A.   Obviously when General Cermak received these letters from members

Page 13330

 1     of the international community, most of the letters I have seen, the

 2     alleged perpetrators were not identified, except for it was said members

 3     of the HV or somebody in military uniform.

 4        Q.   Yes.

 5        A.   And I agree with you that Article 61, for example, as it is

 6     there, only covers subordinates.  But I would expect that somebody with

 7     the rank, experience, and in the position of General Cermak, being aware

 8     of the negative impact these letters from the international community

 9     could have on the image of Croatia would, during his contacts with

10     General Gotovina, for example, or another operational commander in the

11     area raise the matter, also raise the matter with the military police.

12     And even if it was not established that this was a subordinate of his,

13     which, based on the overall structure would be unlikely that it was a

14     subordinate of his, still use his authority in order to achieve the

15     desired result, i.e., to have the complaint by the members of the

16     international community investigated, and also, obviously, the

17     appropriate measures taken against the perpetrators, if the complaint was

18     confirmed by the investigation.

19        Q.   Crimes are not disciplinary violations, are they?

20        A.   No.  But the same principles apply.

21        Q.   Is there any other Article you would like to point out to us?  I

22     have pointed out Article 19, Article 26, Articles 6 and 10.  We've just

23     looked at 61.  It's a matter of law in many respects, but it's just --

24     and I'm conscious of that.  But ...

25        A.   Article 32 could also apply, but that would, of course, that is

Page 13331

 1     the right to arrest perpetrators, but that, of course, implies the

 2     perpetrator has been identified.

 3        Q.   Yes.  Yes, and one has got to be careful about pointing things

 4     out.  It's the circumstances to which the provisions apply as well which

 5     require consideration.

 6             Other than that, there's only the general duty of the public

 7     under Croatian law, which -- have you considered that?

 8        A.   No.  I was actually thinking also of the regulations that apply

 9     to -- or that determine the duties of garrison commanders, i.e., that

10     they are responsible for maintaining order and discipline in the area

11     covered by the garrison.  And crimes can affect order and discipline, in

12     particular, if no action undertaken against the perpetrator, once he or

13     she has been identified.

14        Q.   We've looked at that last week, and that concerns his orders, the

15     garrison orders that are issued for order and discipline.  Remember, we

16     looked at the 30-kilometres per hour speed limit over the bridge.  And

17     those are his orders and rules that a garrison commander may make, which

18     may permit the enforcement of those local rules.

19        A.   That is -- that is one example.  And again, I have not seen

20     specific rules being issued by General Cermak in relation to the kind of

21     crimes we're talking about here.  However, in D59 he speaks to the media

22     about these crimes.  I would expect, again, based on the doctrine that as

23     a garrison commander, in particular, somebody with his rank, he would

24     indeed issue rules in order to prevent the kind of activities he

25     seriously criticised in a press Article, D59, and then we could look into

Page 13332

 1     D34, which -- which lists all kind of things or measures a garrison

 2     commander can take or has to take, and there is, for example, Article 17

 3     on maintaining order and discipline; Article 28 on the obligation to hold

 4     a monthly review of the situation regarding work, order, and discipline.

 5        Q.   I mean, we've looked at all those at the beginning, and I'm not

 6     going to go over those again.

 7             Garrison commanders can only deal with disciplinary measures and

 8     not disciplinary violations, as we looked at, at the beginning of my

 9     cross-examination, if you remember.

10        A.   I -- you would have to refresh my memory with the Article of the

11     Code of Discipline.  But, I mean, common sense would clearly indicate

12     that a garrison commander, especially somebody in a position of

13     General Cermak at the time we are talking about and in the area we're

14     talking about, would not kind of try to -- to hide behind an article and

15     say, Oh, it is not my problem.  But instead would be more proactive and

16     actually do what he has been doing in his responses to the letters of

17     complaint by members of the international community.

18        Q.   In a way, these are findings of fact for the Trial Chamber you're

19     entering into it, aren't you, Mr. Theunens, to be frank.  I am a little

20     bit concerned because this is an matter of judgement here in relation to

21     many details of the evidence that you may not -- not have.

22        A.   I certainly do not want to overstep the subject matter I have

23     been requested to address.  But my answer is based on my own military

24     education and training, my understanding of Croatian armed forces

25     doctrine as well as my review of the documents covering, in this

Page 13333

 1     particular case, the activities of General Cermak as the commander of the

 2     Knin garrison between the 6th of August, 1995 and November 1995.

 3        Q.   We've looked at the Articles of the Code of Military Discipline.

 4     You've pointed out those Articles that -- that apply.  We've seen them.

 5     We can interpret them.  But I was asking you, and you say you would

 6     expect a person of this rank to do this, that, or the other.  There are a

 7     lot of pre-conditions to that.  I'm just asking you to point out within

 8     the regulations if there was anything that supported that proposition any

 9     further to what we've looked at.

10        A.   Well, I believe I have answered the question.  We have address

11     add number of Articles from the Code of Discipline as well as the

12     specific regulation D34 applying to the garrison commander, and I gave

13     additional information which is not included in the regulations.

14        Q.   Yeah.  So we've looked at all those -- those matters.  Very well.

15     I think that that I covers all matters I need ask you.

16                           [Defence counsel confer]

17             MR. KAY:  Your Honour, that concludes my cross-examination of

18     Mr. Theunens.

19        Q.   Thank you, Mr. Theunens.  Sorry for detaining you for so long.

20             JUDGE ORIE:  There is no need to apologise, Mr. Kay.  The Chamber

21     expects to you prepare the lists of bar table documents in accordance

22     with the items the Chamber has given.

23             And I see that the furniture is already moving.

24             Mr. Mikulicic.

25             MR. MIKULICIC:  Yes, Your Honour.

Page 13334

 1             JUDGE ORIE:  I'm not asking you to report to the Chamber about

 2     the result of you considering one day or one day plus.  I just put on the

 3     record that Mr. Kay took less him that than he indicated.

 4             MR. MIKULICIC:  Yes, Your Honour, I am aware of, and I will take

 5     to consider this.

 6             JUDGE ORIE:  Mr. Theunens, you will be cross-examined by

 7     Mr. Mikulicic.  Mr. Mikulicic is counsel for Mr. Markac.

 8             Mr. Mikulicic.

 9             MR. MIKULICIC:  Thank you, Your Honour.

10                           Cross-examination by Mr. Mikulicic:

11        Q.   [Interpretation] Good afternoon, Mr. Theunens.

12        A.   Good afternoon, Mr. Mikulicic.

13        Q.   Allow me to go back to the start of your testimony in this

14     courtroom which was on the 1st of December, when in reply to

15     Mr. President's question, and I'm referring to transcript page 12879,

16     line 20, you said, and I will quote the question by His Honour Judge

17     Orie:  "[In English] [Previous translation continues] ... in these

18     proceedings, if you can explain that.

19             [Interpretation] Your answer was [In English]:  "My subject of

20     expertise is that I'm familiar with command and control issues in the

21     armed forces, as well as with the aspects of the conflict in former

22     Yugoslavia which are relevant in the context of this proceedings."

23             [Interpretation] You do remember both the question and the

24     answer, don't you?

25        A.   Yes, I do.

Page 13335

 1        Q.   Would you like to add anything to your answer?

 2        A.   Maybe I could use -- I could specify the use of the term "armed

 3     forces" in a sense to expand it, that it also covers the Croatian special

 4     police, which is not a formal part of the armed forces.

 5        Q.   Would you like to add anything on the issue of the military,

 6     judiciary, and disciplinary proceedings within the Ministry of Interior

 7     and the Ministry of Defence of the Republic of Croatia?

 8        A.   Not specifically, except for the fact that I have not been able

 9     to locate a specific regulation that covers the enforcement of discipline

10     within the special police.  I don't know whether such a regulation

11     exists, but I would expect such a regulation to exist.

12             MR. MIKULICIC: [Interpretation] Can document number 1D62-0001 be

13     called, please.

14        Q.   Mr. Theunens, in actual fact, the document has to do with the

15     Article which again has to do with the lecture you held in Oslo on the

16     13th of January.  Do you recall the Article in question?  I'm referring

17     to page 6 where you speak of the role of the military expertise in -- at

18     trial, and there you quote from the English dictionary what an UN expert

19     represents.  In other words, it's an individual who is skillful and has

20     great knowledge of an issue.  You go on to cite the jurisprudence of the

21     Tribunal, where you say that an expert witness is a person, who has some

22     specialized knowledge, skill, or training, and can assist a Trial Chamber

23     in understanding an issue in dispute.

24             Presumably, Mr. Theunens, you still hold this view that this is,

25     indeed, what an expert witness should represent.

Page 13336

 1        A.   Yes.  And the footnotes are there to identify -- yeah, to

 2     identify the sources of these entries.

 3        Q.   Very well.

 4             I'm referring you to page 8 of the document, where you said that

 5     the role of a military expert, and here you're referring to an expert

 6     coming from the Prosecution, is to become acquainted with the evidence at

 7     the disposal of the Prosecution.

 8             Does this mean, Mr. Theunens, that evidence, other documents --

 9     or, rather, documents other than the ones that are at the disposal of the

10     Prosecution need not be the subject of expertise?

11        A.   That is not what the text says.  I think you have to look at the

12     text also from a practical point of view.  That is, that, to my

13     knowledge, internal expert reports are filed long before the trial

14     starts, which means that the internal expert has had no access to

15     documents provided by the Defence.

16             As I mentioned during my testimony based on questions I believe

17     by Mr. Kay, but also from what you will find further on in the article,

18     in my view -- sorry.  In my view, it would -- or it's a proposal that I

19     make it would be good if the expert could have access to all the material

20     the parties, i.e., Defence and Prosecution, and maybe also the

21     Trial Chamber, once him or her to review and is not being called as an

22     expert for the Defence or "for the Prosecution," but as an expert of the

23     Trial Chamber.

24        Q.   You've already explained that to us, Mr. Theunens.  I would like

25     to ask you this.  When you quoted documents such as the legislation of

Page 13337

 1     the Republic of Croatia, which were in possession of the Prosecution, did

 2     you also have the occasion to review the legislation that was not part of

 3     the material provided to you by the Prosecution?  In other words, some

 4     other regulations, governing a certain issue; for instance, disciplinary

 5     procedures within the Ministry of Interior or the Ministry of Defence?

 6        A.   As I mentioned, I had expected to have access to a regulation, a

 7     specific regulation for the special police defining discipline within the

 8     special police as well as responsibilities of commanders to enforce it as

 9     well as the different types of breaches of violations.  I have not come

10     across such a regulation.

11             As far as what Ministry of Defence, it is my understanding that

12     the Code of Discipline -- the Military Code of Discipline as well as the

13     other documents I have cited were applicable -- or were still into effect

14     during and after Operation Storm.

15        Q.   Mr. Theunens, on the 1st of December at the start of your

16     testimony, transcript page 12871, line 19, you said [In English]:

17             "A legal expert, so I am not familiar with the details of the

18     international law in the relation to the authority of the -- of a

19     commander or the responsibility of a commander on the occupational

20     regime."

21             [Interpretation] My understanding of this is that you do not

22     perceive yourself as an expert witness for law, and here you highlighted

23     international law.  Did you study domestic law or comparative law, in

24     relation to the topic of your expertise here?

25        A.   I would just like to clarify first, okay, the commander on the

Page 13338

 1     occupational regime --

 2        Q.   At this time, this is of no interest to me, Mr. Theunens.  Can

 3     you please answer my question:  Did you study domestic or comparative

 4     law, although you initially stated that you were not a legal expert?

 5             JUDGE ORIE:  Mr. Theunens, you asked for a clarification about a

 6     part of the question, where you were quoted, talking about a commander or

 7     the responsibility of a commander on the occupational regime.

 8             If you'd like to give that clarification as part of your answer,

 9     you're allowed to do so.

10             THE WITNESS:  Thank you, Your Honours, and I will do it very

11     briefly.

12             I am familiar with what is stipulated in the Geneva Conventions

13     under belligerent occupation which would also cover the --

14             JUDGE ORIE:  Mr. Misetic.

15             MR. MISETIC:  Your Honour, I'm a little bit procedurally at a

16     disadvantage here because is he now giving testimony about an issue that

17     I covered with him and that Mr. Mikulicic is not covering with him.  So

18     if he gives an answer, it could be added to my time that I'm seeking

19     for -- [Overlapping speakers] ...

20             JUDGE ORIE:  [Overlapping speakers] ...  Mr. Theunens said that

21     he would deal with it briefly.  You'll get briefly an opportunity to deal

22     with the matter.

23             MR. MISETIC:  We'll see how briefly he deals with it.

24             JUDGE ORIE:  Yes.  We'll see.

25             THE WITNESS:  There are just two words to come.  So it was which

Page 13339

 1     would also cover the operational commander first up.

 2             Coming back to Mr. Mikulicic's question, I have had private law,

 3     public law, trade law even, but that was in a separate course I attended,

 4     as well as obviously laws of armed convict.  Some aspects of

 5     international law and that during the various stages of my military

 6     education, Military Academy first and then in particular during the

 7     one-year staff course I attended between 1997 -- 1998 and 1999, if I

 8     remember well.

 9             MR. MIKULICIC:

10        Q.   [Interpretation] Mr. Theunens, do you know if the

11     Geneva Conventions you have just mentioned were stipulated in the

12     domicile law of the Republic of Croatia, in 1995; in other words, at the

13     time of the events covered by the indictment?

14        A.   There are various regulations that -- I mean, military

15     regulations that highlight the duties of a commander and also the members

16     of the armed forces to abide by the laws of armed conflict.  I just have

17     a difficulty now to locate the exact formulation.

18             Now, in addition, there is also -- I'm sorry.

19             Yeah, I will find it during the break.  There was, for example --

20     there is correspondence between General Tolj and the ICRC about training

21     of members of the -- of the Croatian armed forces, in the international

22     laws of war.  I am -- I do not remember a specific reference in a

23     Croatian law, even though military regulations have the character of a

24     law for military personnel, but I don't remember a specific reference to

25     the Geneva Conventions in the Croatian laws I reviewed.  But I will check

Page 13340

 1     it certainly during the break.

 2        Q.   While you were preparing your expertise, did you review the

 3     Criminal Code of the Republic of Croatia?

 4        A.   I do not remember specifically reviewing the Criminal Code.  I'm

 5     pretty sure I have seen it, but I have not included any references to it

 6     in my report.

 7        Q.   Mr. Theunens, did you study the organisation and structure of

 8     military courts in the Republic of Croatia, as you were preparing your

 9     expertise?

10        A.   Indeed.  And those aspects -- or that aspect is covered in part 1

11     of the report.

12        Q.   Just to make sure that there is no misunderstanding, I'm not

13     referring to the disciplinary courts but the military courts that were

14     established pursuant to the decrees of the president of the Republic and

15     the Law on Courts.

16             Did you review the work of the courts and the substantive and

17     procedural law applied by the courts, the case law, the way in which the

18     courts are regulated in terms of the work of the judges, and I'm likewise

19     referring to the structure of the military prosecutor's offices.  Did you

20     study that topic?

21        A.   Indeed.  And it is covered in part 1 of the report in the section

22     of military law and military justice, and I have, indeed, made a

23     distinction between disciplinary courts and disciplinary prosecutors as

24     well as the military courts.

25             And for the legal framework, for example, I can direct to you

Page 13341

 1     English pages or the section, excuse me, the section -- in section 7,

 2     title 7, subtitle A, legal framework, which can be found on English pages

 3     203 to 211, where we also have information on military courts and

 4     military prosecutors.

 5        Q.   In your view, Mr. Theunens, or, rather, a moment ago you talked

 6     about this.  Can you tell what is your definition of the military

 7     judiciary?  What does "military judiciary" mean to you?

 8        A.   It consists of a system that allows to investigate, prosecute,

 9     and as well put on trial crimes that are defined in the supporting

10     legislation committed by military personnel, whereby as is addressed in

11     this section, there exists a system of military prosecutors, military

12     courts, and there are also procedures established that allow, for

13     example, or that determine the authority of the military police in the

14     investigation of such facts as well as determine the rights and duties of

15     suspects who are being investigated, prosecuted, and put on trial.

16        Q.   Mr. Theunens, is it your view that the military judiciary was

17     organised within the military authorities of the Republic of Croatia, or

18     do you hold a different view?

19        A.   It is obvious that the military judiciary, i.e., the military

20     prosecutor and the military court, are outside the chain of command in

21     order to guarantee their independence.

22        Q.   Do you know how military prosecutors in the Republic of Croatia

23     were organised?

24        A.   Your Honours, the information I have on that topic can be found

25     in part 1 of the report, pages 205 to 208, where there's reference made

Page 13342

 1     to the relevant legal stipulations.  And, for example, I mention, and

 2     this comes from 65 ter 828, that there is a military state prosecutor's

 3     office in Split.

 4        Q.   You mentioned the military prosecutor in Split.  Who was the

 5     military prosecutor in Split subordinated to?  Or any other military

 6     prosecutor in the territory of the Republic of Croatia.

 7        A.   Well, I know for sure that they're not subordinated to the

 8     operational commander.  I would expect them to be subordinated through

 9     the judicial structure to the -- a supreme type of prosecutor in Zagreb,

10     but I don't have specific information on that in my report.

11        Q.   The supreme prosecutor in Zagreb you're referring to, was he a

12     civilian or a military prosecutor?

13        A.   I don't know, Your Honours.

14        Q.   I should like to call up D906, please.

15             JUDGE ORIE:  Mr. Mikulicic, when this is prepared, I'm looking at

16     the clock, I would like to have a break within the next two to seven

17     minutes, if you could find a suitable moment.

18             MR. MIKULICIC:  Your Honour, maybe it will be convenient to have

19     a break immediately because I'm just entering into the theme that will

20     show up other documents on it.

21             JUDGE ORIE:  Yes.  That was the reason why I asked you to

22     consider it.

23             Apart from that one of your first questions referred to

24     transcript page 12879, where you also see how easily a mistake is made

25     where you said that the witness answered the question put by me to him

Page 13343

 1     about his field of expertise, and he remembered the question and the

 2     answer.

 3             Mr. Kay might be a bit surprised that the questions he has put to

 4     the witness are put in my mouth now.

 5             MR. MIKULICIC:  It is my mistake, Your Honour.

 6             JUDGE ORIE:  Yes.  But you also see that questions with small

 7     implications, the witness said he remembered that.  I find it difficult

 8     to accept that Mr. Theunens remembered a question being put to him by me

 9     if was actually Mr. Kay.  I'm not expressing myself on what are the

10     better questions.  I leave that --

11             MR. MIKULICIC:  The subject of the question was an issue --

12             JUDGE ORIE:  The subject of the question was approximately the

13     same.

14             MR. MIKULICIC:  Yeah.

15             JUDGE ORIE:  We have a break, and we resume at five minutes to

16     6.00.

17                           --- Recess taken at 5.35 p.m.

18                           --- On resuming at 6.05 p.m.

19             JUDGE ORIE:  Mr. Theunens, I was informed that you'd like to

20     clarify one of the answers you gave earlier.  I will give you an

21     opportunity to do so, although it appears that you're developing habits

22     and customs at the beginning an end of the sessions as well.  Yes, about

23     the Geneva Conventions, at least I was told that was something that you

24     would like to say something about.

25             THE WITNESS:  Yes, Your Honours, and I don't want to develop this

Page 13344

 1     into a bad habit, but just to clarify that the answer to Mr. Mikulicic's

 2     question can be found on English page 188 in part 1 of the report, when I

 3     quote from the 1993 presidential decision on the amendment to the service

 4     regulations of the armed forces which is P1117, so 1117.  And Article 250

 5     of this exhibit explicitly mentions the Geneva Conventions, and, of

 6     course, 251 and 252 as well as 253, i.e., the Articles of P1117 are also

 7     relevant in this context.

 8             Thank you, Your Honours.

 9             JUDGE ORIE:  Thank you.

10             Mr. Mikulicic, you may proceed.

11             MR. MIKULICIC:  Thank you, Your Honours.

12        Q.   [Interpretation] Now that you have mentioned the

13     Geneva Conventions, my question was put in a slightly different manner.

14     I was interested in whether you are familiar with the procedure used to

15     incorporate the Geneva Conventions and The Hague Protocols as well as

16     other international regulations, into the body of the Croatian law.

17        A.   Your Honour, I'm not familiar with that specific procedure.

18        Q.   Perhaps you can recall something if I told you that the

19     Geneva Conventions were ratified by the Croatian parliament and pursuant

20     to that act, they became part of domestic law in Croatia, automatically

21     being implemented.  A part of the Geneva Conventions had earlier been

22     incorporated into the penal code of the Republic of Croatia.  Does this

23     jog your memory in any way?

24        A.   Not specifically, Your Honours.  I have not looked into that

25     legal matter in detail, but I have no reason to doubt about what

Page 13345

 1     Mr. Mikulicic just said.

 2             MR. MIKULICIC:  Your Honours, while we have this document on the

 3     screen I would like to draw your attention on the topic that has been

 4     raised while testimonying [sic] Mr. Zeljko Zganjer.  I draw attention to

 5     the wrong translation of the Croatian word vojni sud military court, that

 6     has been wrongly translation as a court martial.  We are still waiting

 7     for the official translating -- for the official translation, and for

 8     that purpose, I will use this documents but having in mind this objection

 9     on the wrong translation.

10             JUDGE ORIE:  Could you please keep that in mind that whenever

11     reference is made to vojni sud that you should understand this for the

12     question to be military court or perhaps military judge.

13             MR. MIKULICIC:  Or military prosecutor, whatever.

14             JUDGE ORIE:  Yes.

15             MR. MIKULICIC:  Thank you, Your Honour.

16        Q.   [Interpretation] Mr. Theunens, are you familiar with this

17     document that is on the screen?

18        A.   Yes, Your Honours, I have quoted from this decree on English page

19     208 of part 1 of the report as well as on the following pages.

20        Q.   If I may then, I'd like to go through the document, in particular

21     Article 2 says that in case of imminent threat of war and with the aim of

22     preserving independence and integrity of the Republic of Croatia, all

23     courts shall continue their work.

24             Paragraph 2 refers to military courts being established.

25             Article 6 speaks of the jurisdiction of military courts.

Page 13346

 1             Did you study what the substantial law is that was supposed to be

 2     applied by military courts?

 3             THE INTERPRETER:  Interpreter's correction, substantive law.

 4             THE WITNESS:  Your Honours, I have addressed the military courts,

 5     i.e., the legislation, in very general terms just to -- in order to

 6     establish that there were military courts.  I also described their

 7     mandate or the jurisdiction, i.e., Article 6, where reference is made to

 8     the SFRY Criminal Code.  And then I have also included some reference to

 9     Article 3 and 4.  I have not done any further research or analysis on the

10     matter.

11             MR. MIKULICIC:

12        Q.   [Interpretation] Could we agree, Mr. Theunens, that military

13     courts did not apply any particular or separate area of the law and that

14     they, rather, applied the penal code provisions that were in force in the

15     Republic of Croatia at that time?

16        A.   That is my understanding of -- of Article 6.

17        Q.   If we look at Article 7 on the next page.

18             MR. MIKULICIC: [Interpretation] Could we please have that on the

19     screen.  Thank you.

20        Q.   If we look at Article 7 we see that district courts have

21     jurisdiction to decide on appeals against military courts' decisions made

22     in the first instance by a military judge.  The district courts referred

23     to in Article 7, are those also military courts or civilian courts?

24        A.   Your Honours, as the text indicates, these are civilian courts,

25     the text in Article 7.

Page 13347

 1        Q.   Article 8:  "The Supreme Court of the Republic of Croatia has

 2     jurisdiction to decide on appeals" --

 3             JUDGE ORIE:  Mr. Mikulicic, you quoted Article 7, and I'm -- you

 4     said that:

 5             "We see that district courts have jurisdiction to decide on

 6     appeals against military courts' decisions made in the first instance by

 7     a military judge," whereas I read that it's a single judge, and I take it

 8     then that it's a single judge in a military court.

 9             MR. MIKULICIC:  Yes, Your Honour.

10             JUDGE ORIE:  But it's a single judge.

11             MR. MIKULICIC:  It's a single judge.

12             JUDGE ORIE:  Yes.  Yes.  That's was not what you put to the

13     witness.  You said by military judge.

14             MR. MIKULICIC:  Well, okay.  In fact, this is a single judge in a

15     first instance.

16             JUDGE ORIE:  And I think the witness then answered your question,

17     that it was a civilian court.

18             MR. MIKULICIC:  Yes.

19             JUDGE ORIE:  Yes.  Please proceed.

20             MR. MIKULICIC:  Thank you, Your Honour.

21        Q.   [Interpretation] I have the same question in relation to

22     Article 8:

23             "The Supreme Court of the Republic of Croatia had jurisdiction to

24     decide on appeals against military Court decisions made in first instance

25     by judicial Chambers."

Page 13348

 1             You will agree that the Supreme Court of the Republic of Croatia

 2     is also a civilian court?

 3        A.   Indeed, Your Honours, that's what the Article says.

 4        Q.   As we can see in Article 6 of the decree that the military courts

 5     applied provisions of the penal code.  Procedurally speaking, do you know

 6     what law was used by military courts?  Was it a separate law or the same

 7     law that was in place encompassing all courts in the Republic of Croatia

 8     at the time?

 9        A.   Your Honours, when we see Article 6, there's only reference made

10     to the Criminal Code of Croatia, which, actually there was a SFRY

11     Criminal Code of 1991 which was adopted by Croatia, and I'm not aware of

12     the existence of separate legislation that would be applied in this

13     context.

14             JUDGE ORIE:  Yes, but I think that Mr. Mikulicic, although he

15     first referred to the substantive law to be applied, was asking about law

16     of procedure.

17             If I understood you well, Mr. Mikulicic.

18             MR. MIKULICIC: [Overlapping speakers] ...

19             JUDGE ORIE:  Could you please -- procedurally speaking, do you

20     know what law was used by military courts.  I understood this to be law

21     of procedure.

22             THE WITNESS:  Your Honours, I have no specific knowledge of which

23     -- of what procedural law the military courts applied.

24             MR. MIKULICIC:

25        Q.   [Interpretation] Article 11 mentions the way judges are elected,

Page 13349

 1     as regards military courts.  It is stated here that per establishment,

 2     they are assigned by the defence minister upon the minister of

 3     judiciary's proposal and the administration for among the ranks of

 4     municipal and district court judges.

 5             Could you please comment.

 6        A.   I think the Article is clear.  In my report I also include a

 7     reference to Article 10 which deals with the composition of the military

 8     court but also decisions to increase the number of the judges, and there

 9     it is stated that the decision shall be made by the minister of justice

10     and public administration acting on the proposal of the president of the

11     military court.  So, indeed, we see the role played by the minister of

12     justice in this aspect.

13        Q.   Are you familiar with the fact that the military court judges

14     were supposed to be elected from among the ranks of the Croatian army;

15     that is to say, the Ministry of Defence?  Do you have any knowledge as

16     regards that?

17        A.   I have no specific -- or no particular knowledge of that.

18             MR. MIKULICIC: [Interpretation] I would kindly ask the registrar

19     to put up D907 next.

20        Q.   Mr. Theunens, you will see a decision on appointment of a

21     particular military judge being assigned to the military court in Split.

22     I also wanted to draw the Chamber's attention on the wrong translation,

23     what is discussed here are -- is not court-martial but military courts.

24             You can see in the preamble that on the proposal of the minister

25     of the judiciary, the Minister of Defence decides on the appointment and

Page 13350

 1     disposition of the judges at the Split military court, where two judges

 2     were being appointed as per establishment.  Previously they had been

 3     judges at the municipal court in Split.

 4             Do you agree with me, that this was an operational way to

 5     implement the decree we saw in Exhibit D906 and that the military court

 6     is being replenished with the judges of civilian courts?

 7        A.   Indeed, that is what the document states.

 8        Q.   [In English] Thank you.

 9             MR. MIKULICIC: [Interpretation] Let's have a look at D908 next.

10        Q.   It is the Law on Courts, one of the basic bodies of law in the

11     Republic of Croatia, regulating the structure of courts in the Republic

12     of Croatia.  As stated in Article 1, it regulates the structure,

13     jurisdiction, and scope of activity of the courts.

14             If we go to page 2, in particular, Article 13, we see that the

15     judiciary is being organised in Croatia to be organised at the level of

16     municipal courts, county courts, military courts, commercial courts, the

17     higher commercial court of the Republic of Croatia, the administrative

18     court of the Republic of Croatia, and the highest judicial instance in

19     the Republic of Croatia is the Supreme Court.

20             Mr. Theunens, in the course of drafting your report, did you

21     study the structure of courts in the Republic of Croatia, their authority

22     and subject matter, jurisprudence, as well as any potential differences

23     that may have existed between the military and civilian courts in the

24     course of 1995?  Was this a subject of -- or topic of your interest?

25        A.   No, Your Honours.  I have not addressed the issues raised by

Page 13351

 1     Mr. Mikulicic, except for the entries on the military courts which can be

 2     found on -- between English pages 208 to 211 in part 1 of the report.

 3        Q.   In the course of your training and education, did you have

 4     occasion to study up close the system of courts in any other country that

 5     would have a system different to that of the Republic of Croatia?  Did

 6     you have occasion to view this topic comparatively?

 7        A.   I am familiar with the system in my own country, including

 8     court-martials where even sat in what we call a court-martial while I was

 9     serving in the Brussels garrison, but otherwise, I have not done any

10     comparative analysis or similar study between the Belgian including

11     legal, including military legal system, and other legal system.  Systems

12     I have -- as I said, I have not studied the Croatian legal system, except

13     for the aspects on military courts and military prosecutors which are

14     addressed in part 1 of the report.

15        Q.   Since you have mentioned court-martial, in your expert view, do

16     you think there is a difference, and if there is, what it is, as opposed

17     to a military court?

18        A.   We would have to look at the legislation and then see whether any

19     distinction or -- excuse me, first see what name is being used and then

20     see whether any distinction is made between the two.  In my own country

21     the military court was the most supreme military judicial institution,

22     which would, for example, deal with appeals, whereas court-martial was

23     the first level of military -- yeah, one would say court, but military

24     judicial institution.

25        Q.   The courts you have referred to in your country, are they part of

Page 13352

 1     the civilian judiciary or the military structure?

 2        A.   Just for your information, the system in my country has been

 3     abolished or at least suspended, so it is not active anymore.

 4             JUDGE ORIE:  Mr. Mikulicic, at an earlier stage, I have expressed

 5     my concern about side roads before we go into the history of the Belgian

 6     system, which has meanwhile been abolished, and whether these were

 7     civilian where Belgian appears to be just one example of which the

 8     expert, I take it mainly because he is of Belgian nationality, appears to

 9     have some knowledge.  I don't know whether that whether assist the

10     Chamber.

11             MR. MIKULICIC:  Obviously that's not an expert knowledge.  That

12     is my point.

13             JUDGE ORIE:  That point is clear to us.

14             MR. MIKULICIC:  Okay.  Thank you, Your Honour.

15             JUDGE ORIE:  Please proceed.

16             MR. MIKULICIC: [Interpretation] I would kindly ask for the 65 ter

17     document 00465 to be brought up.

18        Q.   While we're waiting for the document - there it is - it is a

19     regulation that was put in force towards the end of 1996.

20             First of all, Mr. Theunens, did you have occasion to see this

21     document before?

22        A.   Yes, Your Honours, and I'm under the impression that -- I have

23     used it in my report.

24        Q.   Very well.  This document abolished certain regulation in the

25     area of the judiciary that had been passed during the state of war and

Page 13353

 1     imminent threat of war.

 2             By the way, Mr. Theunens, do you have any knowledge of whether a

 3     state of war was ever declared in the Republic of Croatia?

 4        A.   Your Honours, I believe that such a state was declared in 1991.

 5     However, I don't know whether the state that existed in 1991 was ever

 6     abolished or whether it was re-declared -- I mean declared again at a

 7     later stage.

 8        Q.   Would you be surprised, Mr. Theunens, if I told you that there

 9     was never a state of war proclaimed in the Republic of Croatia.

10        A.   I would not be surprised.  I mean, it's not a matter I have

11     looked into or analysed from a particular -- or analysed, so, yeah, I do

12     believe you.

13        Q.   If we look at this particular decree invalidating the 1991

14     decrees, we will see, under Article 2, that all the cases heard by the

15     military courts are to be remanded to the competent municipal or district

16     courts as well as the cases that military prosecutors offices were seized

17     of were to be transferred back to the competent municipal or district

18     prosecutors.

19             I think we will agree, Mr. Theunens, that the structure of

20     military courts was abolished, and that the cases not completed before

21     the military courts were being transferred to the competent civilian

22     courts.  Will you agree with me on that?

23        A.   Indeed that is what the document states, and I have included a

24     summary of this decree on English pages 204, 205 of part 1 of the report.

25        Q.   Similarly, presidents of military courts, judges of military

Page 13354

 1     courts, and military prosecutors and their deputies, through the

 2     invalidation of 1991 decrees, were transferred back to the posts that

 3     they had earlier occupied in courts or prosecutor's offices.  We

 4     initially saw that that was indeed where the military courts were staffed

 5     from.

 6             When we look at the relevant legislation, will you agree with me,

 7     Mr. Theunens, that we cannot speak of a military judiciary in the

 8     Republic of Croatia but rather of specialized courts which heard cases on

 9     the basis of civilian legal provisions.  Based on a civilian procedure,

10     they heard cases on certain acts or matters for which they were granted

11     jurisdiction by the law?

12        A.   I'm not sure I understand the question.

13        Q.   I will repeat it.

14             Will you agree with me that the so-called military courts were,

15     in fact, a type of specialized courts which, at a concern point in time,

16     were set up within the civilian judiciary or civilian justice

17     administration in the Republic of Croatia?

18        A.   That's probably the case.  I mean, I have not done any legal

19     analysis on how the military court system was established and what its

20     relation was with the civilian court system or judicial system.  All I

21     did was include the most relevant legal references in relation to

22     military courts and military prosecutors in part 1 of my report.

23             It's just a kind of an enumeration without any analysis.

24             MR. MIKULICIC:  I would like to tender this documented into

25     evidence, Your Honour.  65 ter 465.

Page 13355

 1             MR. WAESPI:  No objections.

 2             JUDGE ORIE:  Mr. Registrar.

 3             THE REGISTRAR:  Your Honours, that will be exhibit number D01076.

 4             JUDGE ORIE:  We are now in the 10.000s, which I would not --

 5             MR. MIKULICIC:  A little bit too much.

 6             JUDGE ORIE:  -- try to support.

 7             Mr. Registrar, may I take it that it is 1076.  I have to look at

 8     the --

 9             THE REGISTRAR:  That is absolutely correct, Your Honour.

10             JUDGE ORIE:  It is not easy to fill in halfway.  D1076 is

11     admitted into evidence.

12             Mr. Mikulicic, may I briefly ask you one of the previous

13     documents I find several times, including the documents where you state

14     that the translations are not in every respect correct.  It says courtesy

15     translation.  Comes as a bit of a surprise to me.

16             MR. MIKULICIC:  We didn't find a better bay way to depict the

17     document.  It was translationed [sic] by the Defence, and was only done

18     for the purposes of a particular witness.  In the meantime, we ask for

19     official translations, and we ask --

20             JUDGE ORIE:  That's clear to me, and further, the bureau for

21     statistics dealing with -- be at the heading of military legislation is

22     that a mistake, or ...

23             MR. MIKULICIC:  No that is so.

24             JUDGE ORIE:  That doesn't resolve a puzzle for me, because you

25     make selections from the piece of legislation, but at the top we still

Page 13356

 1     find that although it is signed by the president, it is published by the

 2     bureau of statistics.

 3             MR. MIKULICIC:  Yes, Your Honour, that is why we need a legal

 4     expert to explore all this.

 5             JUDGE ORIE:  Statistical aspects are for -- yes.

 6             MR. MIKULICIC:  I wonder whether we can [Overlapping

 7     speakers] ...

 8             JUDGE ORIE:  [Overlapping speakers] ...

 9             MR. MIKULICIC:  Thank you, Your Honour.

10        Q.   [Interpretation] Mr. Theunens, as part of preparations for your

11     expertise, did you review the jurisprudence and application of the law

12     before military courts in a comparative overview in relation to the

13     civilian courts?  And I'm referring to the type of criminal policies,

14     types of sanctions, the use of detention, et cetera.  Did you study that

15     sort of topic?

16        A.   No, Your Honours, I have not made such a comparison covering the

17     aspects enumerated by Mr. Mikulicic.

18        Q.   Was an area of your interest the courts within the Ministry of

19     the Interior --

20             THE INTERPRETER:  Can Mr. Mikulicic please repeat what sort of

21     courts those were.

22             JUDGE ORIE:  Mr. Mikulicic, you're invited by the interpreters to

23     repeat what kind of courts you had in mind.

24             MR. MIKULICIC:  I had in mind disciplinary court.

25             JUDGE ORIE:  Disciplinary courts --

Page 13357

 1             MR. MIKULICIC:  Of the Ministry of Interior.

 2             JUDGE ORIE:  Of the Ministry of Interior.

 3             THE WITNESS:  Your Honours, this is one of the aspects I

 4     highlighted in the beginning, that I didn't have access to a specific

 5     regulation on discipline within the Ministry of Interior or even that

 6     applied to the special police.  So I would -- I wanted to have a look at

 7     that and study it, but I did not come across such a document or

 8     regulation.

 9             MR. MIKULICIC:

10        Q.   Fair enough.

11             MR. MIKULICIC:  Could we pull up 65 ter 1182.

12        Q.   [Interpretation] Mr. Theunens, you have the Official Gazette of

13     the Republic of Croatia before you, issue number 29, of 1991.

14             This issue published the Law on Internal Affairs.  Did you have

15     the occasion to study the Law?

16        A.   I'm just checking whether I made any references to it.  I have

17     not made any references to this Law.  I mean, I have a reference to the

18     May 1991 Law on Amendment of the 1989 Law on Internal Affairs which can

19     be found on English page 102 of part 1 of the report, and it seems -- it

20     seems to be the same 65 ter, so maybe I'm confused here.  I'm sorry.

21             MR. MIKULICIC: [Interpretation] Whatever the case may be, can

22     Mr. Registrar help us and show us Article 80 of the Law, which deals

23     disciplinary responsibility.  That's page 154.

24        Q.   The Law on Internal Affairs that we have before us now in the

25     provisions of chapter 5 which deal with disciplinary responsibility

Page 13358

 1     regulates the disciplinary courts and their procedure within the Ministry

 2     of the Interior.  Thus, Article 81 envisages --

 3             [In English] [Previous translation continues] ...  another page

 4     in Croatian and 155 in English.

 5             [Interpretation] Article 81 envisages that minor infractions of

 6     military discipline shall be regulated in a general regulation and that

 7     the decision to initiate proceedings shall be rendered by the minister of

 8     the interior or an official authorised to do so by the minister.

 9             Did you review the provisions on military responsibility and the

10     military procedure within the Ministry of Interior?

11        A.   The transcript says military responsibility, but I assume you

12     mean disciplinary.

13        Q.   [Interpretation] Disciplinary responsibility, of course.  It is a

14     mistake.  Thank you for your remark.

15        A.   I have reviewed the law, but I have no recollection that I

16     reviewed this specific Articles, and I have not included them in my

17     report, whereas, based on your question, I should have included them.

18        Q.   [Interpretation] Article 82 relates to major offences of work

19     discipline, and I draw your attention to item or point 14 which speaks of

20     a criminal offence as a major breach of work discipline, and I believe we

21     will be discussing that tomorrow.

22             Article 82, last paragraph, reads that the proposal for

23     initiating a disciplinary procedure for a major breach of work discipline

24     shall be submitted by the Minister of the Interior or a person authorised

25     by him for that purpose.

Page 13359

 1             Article 83 reads that the proceedings shall be initiated, and the

 2     disciplinary court shall render a decision thereupon.

 3             Are you familiar with the work of the disciplinary courts within

 4     the Ministry of the Interior of the Republic of Croatia?

 5        A.   No, Your Honours.  I'm not familiar with the work of the

 6     disciplinary courts within the Ministry of Interior of the Republic of

 7     Croatia.

 8             JUDGE ORIE:  Mr. Mikulicic, when you put Article 81 to the

 9     witness, and let me quote you literally.

10             MR. MIKULICIC:  Yes, it's 75 page -- line 24.

11             JUDGE ORIE:  Thank you.

12             You said, "Article 81 envisages that minor infractions of

13     military discipline shall be regulated in a general regulation."

14             I'm just trying to find that in Article 81.  Could you assist me.

15             MR. MIKULICIC:  It's paragraph 1 in Article 81 and the Croatian

16     words opci akt has been translated that way.  I'm not very sure whether

17     this is a really --

18             JUDGE ORIE:  I have difficulties in finding the word "military."

19             MR. MIKULICIC:  No military at all.

20             THE INTERPRETER:  Interpreter's correction.  It may have been an

21     interpreter's mistake.

22             JUDGE ORIE:  Mr. Mikulicic.

23             MR. MIKULICIC:  Yes.

24             JUDGE ORIE:  A couple of times your words have been translated as

25     referring not only to work discipline but to military discipline, and I

Page 13360

 1     was just informed by the interpreters that there may have been

 2     interpretation mistakes.

 3             So whenever you referred to discipline in this context, I do

 4     understand that you referred to work discipline and not to military

 5     discipline.

 6             MR. MIKULICIC:  [Overlapping speakers] ...  and within the

 7     Ministry of Interior, so it has nothing to do with a military or the --

 8             JUDGE ORIE:  No, I was just confused by --

 9             MR. MIKULICIC: [Overlapping speakers] ...

10             JUDGE ORIE:  -- the way in which it appeared on our transcript,

11     and I thought it wise not to suffer under this confusion.

12             MR. MIKULICIC:  It probably, Your Honour, it is my mistake, but

13     it is quite difficult to follow the transcript on one side, on the other

14     side [Overlapping speakers] ...

15             JUDGE ORIE:  I'm not blaming you.  I have to do a job as well.

16             MR. MIKULICIC:  Thank you.  Thank you, Your Honour.

17        Q.   [Interpretation] Article 83 provides for serious infringements of

18     work discipline, and provides for a first instance disciplinary court to

19     be set up in every police administration and in the seat of the ministry

20     as well.

21             Article 84 goes on to speak of the first instance, disciplinary

22     court consisting of a president and two members; and the second instance,

23     court of a president and four members.

24             Do you know, Mr. Theunens, what sort of substantive and

25     procedural law was applied by the disciplinary courts of the Ministry of

Page 13361

 1     Interior?

 2        A.   No, Your Honours.  This is not a matter I have addressed in my

 3     report.

 4        Q.   In other words, your expertise on the matter cannot help us here,

 5     if my understanding is correct.

 6        A.   It's difficult for me to answer that question.

 7             JUDGE ORIE:  Yes.  May I take it that you -- your answer is that

 8     have you no specific expertise on the matter and that did you not study

 9     it when preparing your report.

10             THE WITNESS:  That is -- that's correct, Mr. President.

11             JUDGE ORIE:  Please proceed.

12             MR. MIKULICIC:  Thank you, Your Honour.

13        Q.   [Interpretation] Mr. Theunens, a moment ago you said that

14     unfortunately you did not have occasion to review the regulations

15     regulating the disciplinary responsibility of the police, including

16     members of the special police.  I would like to direct your attention to

17     Article 24 of the Law, regulating the establishment of the special

18     police.

19             Can you agree with me that the special police, its structure, and

20     the reason why it was set up can be found among the provisions of the Law

21     on Internal Affairs that we've just looked at?

22        A.   Indeed, Your Honours, and I have mentioned or addressed Article

23     24 on page 103 of part 1 of the report.

24             MR. MIKULICIC:  May this document be made an evidence, Your

25     Honour.

Page 13362

 1             MR. WAESPI:  No objections.

 2             JUDGE ORIE:  Mr. Registrar.

 3             THE REGISTRAR:  Your Honours, that will be Exhibit D1077.  Thank

 4     you, Your Honours.

 5             JUDGE ORIE:  Exhibit D1077 is admitted into evidence.

 6             MR. MIKULICIC:  Thank you, Your Honour.

 7        Q.   [Interpretation] The Law that we have just looked at was amended

 8     in October 1994.  I am referring you to Exhibit P1148.  We will get back

 9     to that later.

10        A.   I mean the October 1994 amendment can be found on English pages

11     -- at least the relevant sections on special police on English pages 103

12     and 104 of part 1 of the report.

13        Q.   Mr. Theunens, in your expert opinion, can you tell us and

14     describe for us what the basic difference is between the disciplinary

15     courts, which, as we were able to see were set up within the Ministry of

16     Interior, and the regular civilian courts, which were set up pursuant to

17     the Law on Courts of the Republic of Croatia.

18        A.   Your Honours, I have not reviewed the Articles 80 to 85 of the --

19     of Exhibit D1077, so I'm not in a position to answer the question.

20        Q.   You will remember that we said that decisions on serious breaches

21     of work discipline and disciplinary proceedings will be passed -- or,

22     rather, the decisions to initiate such proceedings will be passed by the

23     Ministry of the Interior or another person authorised by him to do so.

24             MR. MIKULICIC: [Interpretation] Can we call up 3D01-0723?

25        Q.   This is a decision dated March 1995 of the Ministry of the

Page 13363

 1     Interior rendered by the assistant minister, Mr. Mladen Markac, whereby

 2     Mario Spekuljuk was suspended from duty as a member of the special police

 3     anti-terrorist unit Lucko.

 4             Let me ask you first if you have ever had the occasion to see

 5     this document?

 6        A.   I believe I did, yes.

 7        Q.   In the preamble of the decision, Mr. Markac, who rendered the

 8     decision invokes the powers under Articles 89 and 90 of the Law on

 9     Internal Affairs we have just looked at.  Article 90 says that a decision

10     on the suspension from duty can be rendered by the minister or somebody

11     authorised by him to do so, and Article 89 says that a member of the

12     Ministry of the Interior may be suspended from duty when a criminal

13     procedure has been initiated against him.

14             It follows from this decision, Mr. Theunens, that an

15     investigation had been launched against Mario Spekuljuk for the

16     perpetration of the crime of soliciting prostitutes and that an

17     investigating judge had ordered an investigation against that person.

18             Mr. Theunens, what are your comments, in relation to the way this

19     decision was passed or to the decision itself?

20        A.   I have only this document in front of me, but it -- it appears

21     that General Markac is exercising his authority in line with -- and also

22     fulfilling his duties in line with what is stipulated in the Law on

23     Internal Affairs and more specifically the Articles dealing with

24     enforcing discipline and acting against people who have violated

25     discipline.

Page 13364

 1        Q.   Correct.  I agree with you, Mr. Theunens.

 2             Can we agree that it clearly follows from this document that

 3     General Markac received information that against a member of the

 4     anti-terrorist unit of Lucko, a criminal procedure had been initiated and

 5     that detention was ordered whereby a decision for the suspension of duty

 6     was passed in this particular specific case?

 7        A.   Could I just see the bottom of the document, because --

 8        Q.   [In English] Yes, please.

 9        A.   Yes.  I mean, to answer your question.

10             MR. MIKULICIC:  Could I have a number for this document, Your

11     Honour.

12             MR. WAESPI:  No objections.

13             JUDGE ORIE:  Mr. Registrar.

14             THE REGISTRAR:  Your Honours, that will be D1078, Your Honours.

15             JUDGE ORIE:  D1078 is admitted into evidence.

16             MR. MIKULICIC:  I have just one more document, Your Honour, and

17     that will be -- [Overlapping speakers] ...

18             JUDGE ORIE:  We are close to -- one document.

19             MR. MIKULICIC:  One document.

20             JUDGE ORIE:  One or two minutes, not more, because otherwise --

21     okay, please proceed.

22             MR. MIKULICIC:  Thank you, Your Honour.

23             [Interpretation] Can we have document P609, please.

24        Q.   Mr. Theunens, we've seen the document whereby Mr. Markac

25     suspended from duty a member of the special police against whom a

Page 13365

 1     criminal proceedings were launched.  We have on our screen a document

 2     which shows that Mr. Markac addressed the commander of the unit

 3     Mario Spekuljuk was a member of as a specialist, and that is the

 4     anti-terrorist unit Lucko, and that he delivered the decision on

 5     suspension from duty.

 6             Will you agree with me that this, in fact, is the implementation

 7     of the measures contained in the decision that is now exhibited as D1078?

 8        A.   I believe it is, and P609 is also mentioned in the addendum.  It

 9     would have been good if D1078 would also have been included there.

10             MR. MIKULICIC:  That concludes my examination for today, Your

11     Honour.

12             JUDGE ORIE:  Yes.  Thank you, Mr. Mikulicic.

13             MR. MIKULICIC:  Thank you, Your Honour.

14             JUDGE ORIE:  Before we adjourn for the day, the Chamber would

15     inform the parties about its decision it has taken in respect of the

16     defendant Ante Gotovina's request to reply to the Prosecution's response

17     to Gotovina's notice concerning the addendum to Colonel Konings's expert

18     report, which was filed the 9th of December, and since it is a urgent

19     matter, the Chamber, although not yet impressed by the reasons given and

20     still considering to what extent the assumptions in this request or the

21     implications as described in it, and what to rely upon and what not to

22     rely upon, still considering all that, the Chamber has decided that it

23     uses its discretion to allow the Gotovina Defence to -- to reply but

24     orally not more than five minutes, and then an opportunity will be given

25     to do so tomorrow.

Page 13366

 1             I can -- I take it that you'd rather not have it earlier in the

 2     mourn, but take as much time as possible.  But, of course, we can't just

 3     postpone Konings' matters eternally.  Therefore, we have used the

 4     discretion to at least grant, perhaps not in full because I take that you

 5     in mind to address the matter in writing, but at least to grant it

 6     partially by giving you an opportunity to address the issues that you

 7     wanted to address in five minutes in court.

 8             MR. KEHOE:  So I take it, Your Honour, you just want to hear our

 9     reply not to not the whole matter, just a five-minute reply orally to --

10             JUDGE ORIE:  Yes.  And as I said earlier, the Chamber has

11     seriously considered whether to grant at all.  We finally reached the

12     decision that's what I said, not yet being impressed by the argument

13     raised, but using its discretion will not disallow, will not deny the

14     motion in its entirety and give an opportunity.  If after these five

15     minutes, or course, the Chamber will take a totally different view, then,

16     of course, we would reconsider the matter.

17             MR. KEHOE:  Yes, Your Honour.

18             JUDGE ORIE:  Mr. Theunens, we would like to see you back tomorrow

19     morning at 9.00, and I have to address Mr. Registrar to know for sure in

20     which courtroom, otherwise you will find out.  I hardly ever would send

21     an expert or a witness home and say, Try to find out in what courtroom

22     we're in tomorrow.  But you're one of the exceptions, Mr. Theunens.  You

23     will certainly be able with the assistance of the victims and witness

24     section, no one else, of course, to find out where we would like to see

25     you back.

Page 13367

 1             It's Courtroom I, as Mr. Misetic tells me, and which is confirmed

 2     with the registrar, so you don't need a sleepless night for that reason

 3     alone.

 4             We would like to see you back at 9.00 tomorrow morning.  I,

 5     again, instruct you that you should not speak with anyone about the

 6     testimony already given or still to be given, and we adjourn until

 7     tomorrow, the 10th of December, 9.00, Courtroom I.

 8                            --- Whereupon the hearing adjourned at 7.05 p.m.,

 9                           to be reconvened on Wednesday, the 10th day of

10                           December, 2008, at 9.00 a.m.