1 Tuesday, 3 March 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.11 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Mr. Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. Good morning to
8 everyone in the courtroom. This is case number IT-06-90-T, The
9 Prosecutor versus Ante Gotovina et al.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 I was informed that the Prosecution would like to raise some
12 matters, and before I give an opportunity to do so, my first question
13 would be whether the invitation to upload a redacted version of the
14 Croatian Helsinki Committee report because which was tendered through
15 witness W140 whether that has been uploaded already because there were
16 submissions made in relation to that report. But one of the first issues
17 was whether it did not also deal with matters which are totally outside
18 the scope of this indictment.
19 So whatever the Chamber will decide on the matter, and I see
20 Ms. Higgins is not there this morning, but whatever we'll decide, at
21 least the Chamber invited the Prosecution to limit the report to what is
22 maybe relevant for this case.
23 MR. HEDARALY: Yes, Mr. President. I have been informed that the
24 redacted version is ready. We sent it to the Defence to see if there was
25 any objections, so I think we're waiting for a response before uploading
1 it into e-court.
2 JUDGE ORIE: Yes. That's at least good that it has been done.
3 When did you send it to the Defence?
4 MR. HEDARALY: I don't have that information off the top of my
5 head. But I think at least a week ago.
6 JUDGE ORIE: If that is the case, Mr. Cayley is there any way
7 that you inquire perhaps Ms. Higgins --
8 MR. CAYLEY: I can, Your Honour, and see. I'm quite certain --
9 I'm actually just told she is in the process of reviewing it now. So we
10 can certainly get back to the Court in short order. Thank you.
11 JUDGE ORIE: Yes, because perhaps later this morning, we might
12 deal with quite a lot of issues from the MFI list. Thank you for that
14 Mr. Hedaraly, you wanted to raise it a matter.
15 MR. HEDARALY: Thank you, Mr. President.
16 I wanted to raise an issue with respect to 1D69-0104. Perhaps we
17 can have is on the screen so that everyone can refer to it at the same
19 And that is the list of targets. If you remember, Mr. President,
20 yesterday Mr. Misetic at transcript reference 16980 without putting any
21 questions to the witness, showed that document, said it was a list of
22 targets and then asked to tender it into evidence.
23 JUDGE ORIE: That is the list with the many stacionars on it --
24 MR. HEDARALY: Exactly.
25 JUDGE ORIE: -- and the houses where they apparently were
2 MR. HEDARALY: First of all, that should have been a bar table
3 submission and the proper procedure was not followed. That is not the
4 main issues that we have with this document.
5 JUDGE ORIE: You referred to it as 1D69-0104. But I remember
6 that a --
7 MR. HEDARALY: No number was given to it in the transcript.
8 JUDGE ORIE: No numbers given to in the transcript. Then we
9 failed to do that.
10 MR. HEDARALY: We can give one now if you want.
11 JUDGE ORIE: Yes. So that --
12 Mr. Registrar, this target list since it is on our screen, apart
13 from -- so an MFI
14 waiting for ...
15 [Trial Chamber and registrar confer]
16 JUDGE ORIE: And it gets a D number. That's -- it was introduced
17 by the Gotovina Defence.
18 THE REGISTRAR: Your Honours, this becomes Exhibit D1447, marked
19 for identification.
20 JUDGE ORIE: Yes. Mr. Hedaraly.
21 MR. HEDARALY: Thank you. Perhaps if we can have the Croatian
22 version on the screen it may assist for the first set of issues that the
23 Prosecution has with this document.
24 And, Mr. President, the first issue is that there is absolutely
25 no indication of where this document was created, by whom, there was a
1 date at the bottom saying 30 July. But as far as we know it could just
2 have been typed up by anyone. On its face there is no indicia of
3 authenticity and, therefore, no reliability.
4 In fact, the document itself has a list on the left-hand column
5 of targets, and there are significant numbers that have been skipped.
6 For example, 87 to 273, 361 to 491, 564 to 615, 794 to 917; and in some
7 instances there are also coordinates missing.
8 In some instances under source of information in the English it
9 says "old one," so the Prosecution has no way of knowing what this
10 document is. It has just been tendered and presented for -- presumably
11 what is a list of targets for -- for TS-3 at the time, which, raises the
12 next issue we have with this. Is that on its very face of the document,
13 we know from the evidence in this case so far that it was TS-5 that fired
14 on the town of Benkovac
15 Now, there is evidence of a reorganisation that was made and that
16 is what Mr. Rajcic testified to. But that's precisely the point,
17 Your Honour. Mr. Rajcic testified to the targets in Benkovac, in
18 Obrovac, in Gracac. His 92 ter statement he said he, himself, prepared
19 the artillery attack. Mr. Russo asked Mr. Rajcic --
20 May I proceed.
21 JUDGE ORIE: Yes, I heard some sounds or noise, and I didn't know
22 where it came from.
23 Please proceed.
24 MR. HEDARALY: Mr. Rajcic was asked specifically to identify the
25 targets on a map of Benkovac, of Gracac, and of Obrovac. And now the
1 Defence is -- didn't put that document to Mr. Rajcic despite the fact
2 that there are now targets that appear on their presentation, targets
3 that appear on this list that were not mentioned by Mr. Rajcic.
4 Now, Your Honour, under Rule 90 (H) the Defence had an obligation
5 to put their case to Mr. Rajcic, and the Prosecution asked specific
6 questions on that the targeting and the targets in those towns; and that
7 list was not put in cross-examination to Mr. Rajcic. So the two issues
8 here from the face of it, the authenticity of the document, and the
9 person that can testify to this authenticity is not Mr. Sinobad, it is
10 Mr. Rajcic.
11 So instead of just putting this within nine transcript lines at
12 page 16980, without a single question to the witness, asked it to be
13 tendered into evidence for the last witness when it was done, not done
14 with Mr. Rajcic was there, is improper.
15 If this exhibit gets into evidence, the Prosecution would like to
16 recall Mr. Rajcic and ask him about this document and his knowledge of it
17 to see whether we can actually authenticate it because there is no basis
18 right now to know. There's no stamp. There's nothing on this document
19 from the face of it.
20 Thank you.
21 JUDGE ORIE: Yes, Mr. Hedaraly, first of all, one question, you
22 said the Prosecution was under an obligation to put its case to
23 Mr. Rajcic. Now that is only evidence --
24 MR. HEDARALY: Defence, I think.
25 JUDGE ORIE: Yes. Isn't it true that if you -- that's not a
1 general rule, that in cross-examination you should put your case to a
3 MR. HEDARALY: That is true, Your Honour. But when there is an
4 issue where the witness that is the most familiar with it and has
5 testified to it, there is a document that he could perhaps authenticate
6 that he has discussed more or less the substance of that testimony; and
7 Defence doesn't put that document to the witness and then tries to
8 essentially bar table it or show it to a witness where it's acknowledged
9 in the transcript, You've probably never seen this document before, and
10 then tried to tender, that is clearly improper and the Prosecution --
11 JUDGE ORIE: Yes. But you read a reference to Rule 90 and to
12 Rule 90 (H). What appears to be the criterion there is if you go beyond
13 the limits of the subject matter of examination-in-chief that then you
14 are under an obligation to put the nature of your case to that witness;
15 so, therefore, we still have to see whether that is -- was the case or
16 not here. But that's at least what I read in Rule 90 (H).
17 [Prosecution counsel confer]
18 MR. HEDARALY: Your Honour, if -- that -- that may be true. If
19 what the Defence is saying now is that there are targets in Benkovac, for
20 example; there also Gracac and Obrovac on that list by the way. If the
21 Defence is now saying there are other targets that the one -- that were
22 identified by the -- by Mr. Rajcic, and the Defence didn't put that
23 document to him then, then the Prosecution should be entitled to recall
24 Mr. Rajcic and put this document to him.
25 JUDGE ORIE: Let's -- we'll consider whether this would justify a
1 recall of Mr. Rajcic.
2 Let's first listen to the -- Mr. Misetic, because he might tell
3 us a bit about the background and the origin of this document and missing
4 portions in the listing.
5 MR. MISETIC: Yes, Mr. President.
6 JUDGE ORIE: Mr. Misetic.
7 MR. MISETIC: Let me just start by saying that it with all due
8 respect to the Prosecution it appears to me that they, on the last day of
9 the Prosecution's case, still don't understand how artillery works or
10 what Mr. Rajcic's testimony was.
11 JUDGE ORIE: Let's focus on -- I mean this is kind of sweeping
12 statements that they do not understand.
13 MR. MISETIC: [Overlapping speakers] ...
14 JUDGE ORIE: They really do not assist very much, Mr. --
15 MR. MISETIC: I think I should wait for Mr. Russo to listen to
17 JUDGE ORIE: Mr. Russo, there was a sweeping statement that the
18 Prosecution does not understand artillery at all. I'm exaggerating a
19 bit, but that was the opening line of Mr. Misetic, who is now going to
20 tell us about --
21 MR. MISETIC: That is my closing argument, Judge.
22 JUDGE ORIE: It's closing argument. It was your opening
24 MR. MISETIC: Yes.
25 Mr. President, what Mr. Rajcic testified to what targets were
1 fired on on Benkovac on 4th August; that is far different from saying
2 what planned targets are or what you put on a target list.
3 Mr. Rajcic addressed that distinction in his Rule 92 ter
4 statement, so the fact that you have a list of dozens if not hundreds of
5 targets that were not fired on has nothing to do with Mr. Rajcic's
6 testimony or what was put to him by the Prosecution; nor is it in any way
7 inconsistent with what Mr. Rajcic said. It is a fact that Mr. Rajcic
8 said - and we put those circles in our presentation yesterday - that
9 three targets were fired upon; that doesn't mean in artillery preparation
10 that you don't put together a list of potential targets, and this is what
11 this list purports to be.
12 Secondly, the source of the document is well known to the
13 Prosecution. They have filed a document with the Trial Chamber already
14 about this document. This is the motion filed by the Prosecution on
15 21 January 2009
16 obtained by Gotovina Defence at Annex A, paragraph 12. The Prosecution
17 says and this is now a document concerning Mr. Ivanovic and the
18 indictment in Zagreb
19 two documents; one described as a code map of targets for the
20 Benkovac-Obrovac-Gracac area, which is this document. The Prosecution
21 further went on to advise the Trial Chamber that, thus, even if the
22 Prosecution of Ivanovic proceeds and is successful, it could only result
23 in the production of these two documents, neither of which appear to fall
24 directly within the Prosecution's artillery document request.
25 So, the -- and secondly, I can tell you, and Mr. Kehoe will also
1 tell that you, we had a meeting with Mr. Russo, Mr. Tieger, and
2 Mr. Waespi on the, I believe, the 12th of December last year where we
3 also advised them that we had Mr. Kardum's diary as well as this, what
4 the Prosecution referred to as code map of targets for the
5 Benkovac-Obrovac-Gracac area; and it one of the documents given to us by
6 Mr. Kardum, a copy.
7 And --
8 JUDGE ORIE: Mr. Misetic, I haven't re-read the motion this
9 morning, so there's something in my memory which tells me that talking
10 about two documents, apparently the documents which were at stake in the
11 investigations or at least in proceedings against Mr. Ivanovic, something
12 in my mind tells me that in one or two submissions I read one of them we
13 do not have and the other one we do have. But that's a mistake.
14 MR. MISETIC: Yes, that is a mistake.
15 JUDGE ORIE: So you told the Prosecution that two documents were
16 in your possession.
17 MR. MISETIC: Correct, orally. We will told them at a meeting on
18 the 12th --
19 JUDGE ORIE: Is this in any way also -- has this put on the
20 record in this court.
21 MR. MISETIC: No.
22 JUDGE ORIE: So we are not aware of it until now --
23 MR. MISETIC: Correct.
24 JUDGE ORIE: -- but we now our. Okay.
25 MR. MISETIC: Well, to the extent that Mr. Ivanovic has been
1 indicted for the document and to the extent that the Prosecution has
2 already written to the Chamber that this is a document that doesn't fall
3 within the Prosecution's RFA, the Trial Chamber has some knowledge of the
4 document that we're talking about now.
5 JUDGE ORIE: Yes.
6 MR. MISETIC: Additionally, let me further state that Mr. Rajcic
7 was clear in his testimony of the distinction between firing at the
8 operational level and firing at the tactical level. This is Mr. Kardum's
9 list of targets as of 30 July 1995
10 respond to this is in effect by providing my own testimony. The gaps are
11 because this is a computer printout and the targets are related to the
12 three cities, whereas, as I'm told the gaps refer to other locations and
13 other targets. But this is the only copy that we have of this.
14 The indication by Mr. Hedaraly that there is no stamp also goes
15 to the issue that this is not an official document of the Republic of
17 a witness that come, first of all, this document is something that was
18 not at the operational level but was prepared by Mr. Kardum; so I'm not
19 sure what it is that the Prosecution thinks they would put to him.
20 Secondly, if that's the new standard that the Prosecution wishes
21 to apply, then we would have to go back and seek to exclude all documents
22 that the Prosecution tendered after their own witnesses came. To my
23 mind, Mr. Marti comes to mind where documents and spreadsheets of bodies
24 found after Mr. Marti left were then subsequently tendered across the bar
25 table. One of the objections that we raised precisely was the fact that
1 we couldn't put it to Mr. Marti. The Prosecution had no problem.
2 So we would then go back and ask that the same rule be applied if
3 that's the new rule that the Prosecution wishes to apply across the
5 With respect to authenticity, it is what it purports to be. It's
6 titled TS-3 as Mr. Hedaraly alluded to. The numbering for these
7 artillery and rocket groups did not change until after the 1st of August,
8 so the fact that it is called TS-3 is actually an indicia of reliability
9 because if it was created after the fact, it was more likely that
10 somebody would have put a mistake on there and called it TS-5, which in
11 fact as of 30 July 1995
12 That's also verified by Mr. Rajcic's testimony.
13 Accordingly, Mr. President, I don't think these argument, and we
14 can go on and on about reliability, credibility, et cetera; but that
15 doesn't have anything to do with the admissibility of this document. It
16 is what it purports to be, and if the Prosecution wishes to challenge the
17 weight of this document at some point, they're free to do so, obviously;
18 but in terms whether it should be admitted as I said, the Prosecution has
19 been on notice at least as of the 1st of December of the existence of
20 this document, and as of the 21st, I believe, of January, advise the
21 Trial Chamber that this was not a document that they were looking for.
22 Thank you, Mr. President.
23 JUDGE ORIE: Mr. Hedaraly.
24 MR. HEDARALY: So now we have Mr. Misetic testifying extensively
25 about there document. If to the extent that it relates to Mr. Rajcic's
1 testimony --
2 JUDGE ORIE: I -- I asked Mr. Misetic to refrain from sweeping
3 statements. If would you do the same, then we could focus on the subject
5 MR. HEDARALY: With respect to Mr. Rajcic's testimony if I can
6 give the floor to Mr. Russo since he examined the witness, he will be
7 able to examine specifically what Mr. Rajcic did and did not testify to,
8 if that is allowed by the Chamber.
9 JUDGE ORIE: Well, of course, the Chamber know what is
10 Mr. Rajcic's testified to. But I give an opportunity to Mr. Russo to
11 draw our attention and to take us back to relevant portions of the
12 testimony of Mr. Rajcic.
13 MR. RUSSO: Thank you, Mr. President.
14 Before addressing the issues raised during Mr. Rajcic's
15 testimony, I do want to clear up what I believe are inaccuracies in the
16 statements just made by Mr. Misetic.
17 First of all, this document that's in front of us the Prosecution
18 is not or was not well aware of what this document is, nor that
19 Mr. Misetic was going to claim that it was one of the documents given to
20 his Defence team by Mr. Kardum.
21 Now we did have a discussion with Mr. Misetic and Mr. Kehoe on
22 the 11th of December, and during that conversation we were told by them
23 that there were two documents given to the Defence team by Mr. Kardum.
24 Those documents were not identified by title. The title of the
25 document, code map of Benkovac, Obrovac, Gracac comes from Mr. Kardum
1 himself and comes from the indictment of Mr. Ivanovic and that's the
2 reason why in our motion to compel documents from the Defence,
3 confidential Appendix A, paragraph 12 we indicate that these documents do
4 not, quote, appear to fall within our document request.
5 Because our document request was not for code maps. Of course,
6 this document is, first of all, not a code map. It's neither a map nor a
7 coded map. It is quite plainly a list of targets. If it had been
8 identified as by its title, list of targets for TS-3, it certainly falls
9 within our document request and certainly falls within what we've been
10 seeking in Rule 54 bis proceedings.
11 So we were unaware that this was the document which was being
12 referred to by Mr. Kardum as a code map, and in any case I don't see
13 how --
14 JUDGE ORIE: But this is what I do understand - and sorry to
15 interrupt you, Mr. Russo - is that Mr. Misetic is blaming you for not
16 understanding the matters that you say well, but this is not what we
17 understood. It certainly falls within ... at least now you have got one
18 document you would like to have at your disposal, and it's even tendered
19 now into evidence by the Defence.
20 MR. RUSSO: Mr. President, that might be the case. However, we
21 simply, with all due respect, can't take Mr. Misetic's word that this
22 document is what it purports to be, that it is, in fact, a source list of
23 targets for TS-3 for whatever level of artillery, the only witness to
24 appear in this case who could have provided that information was here to
25 testify last week.
1 In fact, the individual who planned the artillery attack on
2 Benkovac-Obrovac-Gracac, the fact that it was not even shown to him so
3 that the Chamber and the Prosecution could determine if, in fact, it is
4 what it purports to be, then there simply no foundation for the document
5 to come into evidence. We don't know that it, in fact, is a list of
6 targets. Mr. Hedaraly has already pointed out the problems that appear
7 from the face of the document. It certainly is something that needs
8 information at a minimum as to whether it was the source list of targets
9 used by TS-5, whether it was, in fact, used during Operation Storm,
10 otherwise it is not relevant. And Mr. Sinobad obviously can't provide
11 that information; so we simply can't do this by a vow of counsel. It
12 needs to be put to a witness who can provide that information to the
14 JUDGE ORIE: Mr. Misetic.
15 MR. MISETIC: Mr. President, that is it, with all due respect,
16 his - almost his entire direct examination was put in documents to
17 Mr. Rajcic, that Mr. Rajcic was not personally familiar. That's the
18 first point; that he did not author, that did he not use the
19 4th Guards Brigade, the 7th Guards Brigade, the coded maps of the 7th
20 Guards Brigade; none of those documents Mr. Rajcic had any personal
21 knowledge of.
22 So to now come back and say we have to put this document to him
23 because he may or may not have personal knowledge of the document is
24 defeated by what he did through his whole direct examination; and if
25 necessary, Mr. President, we'll go back and put together a spreadsheet
1 for you of all document that they have tendered or are trying to tender
2 into evidence or bar table through Mr. Rajcic for which Mr. Rajcic has no
3 personal knowledge. And if is that's the standard Mr. Russo wishes apply
4 then we will move out all those documents --
5 JUDGE ORIE: Mr. Misetic --
6 MR. MISETIC: Let me just make an additional point.
7 JUDGE ORIE: Mr. Misetic, isn't it to some extend also not
8 speculation to say he didn't know of all these documents, so he would not
9 known about this one as well. We just don't know.
10 MR. MISETIC: I'm saying you can't use a sword and a shield in
11 the same argument, which is what Mr. Russo is doing.
12 Let's get to the more fundamental point.
13 Mr. Russo now claims if, in fact, we have to know whether the
14 list was used during Operation Storm otherwise it's not relevant. That's
15 completely false and completely counter to what our position is in light
16 of the emphasis that Mr. Russo put on the meeting on the 31st of July at
17 Brioni. The fact that there's a target list on the 30th of July, for the
18 towns of Benkovac, Obrovac, and Gracac; and in an extensive target list
19 whether or not it was used in Operation Storm this document has relevance
20 in light of the Prosecution's theory of the case.
21 So this document, Mr. President, should come in. They can argue
22 the weight. And let me also say that we are more than willing to go back
23 and look at all documents that the Prosecution has tendered into evidence
24 for which no live witness was called. There have to be hundreds of such
25 documents: Newspaper articles where nobody has been called that can
1 authenticate or verify the authenticity; police interview notes for which
2 neither of interviewee or the interviewer have been called to
3 authenticate the documents. To say that this shouldn't come -- now this
4 document shouldn't come into evidence because it can't be put to a
5 witness or wasn't put to a witness is completely at odds with how the
6 Prosecution has tendered evidence in this case.
7 I suggest to you, Mr. President, that this is a list that is
8 relevant to this witness in light of what the Prosecution put to him, and
9 let me state that the Prosecution called this witness to testify about
10 the shelling of Benkovac; and called him to say that what was shelled was
11 residential areas; and called him to say there was only one military
12 target in town, which was the barracks and there were no other targets.
13 Accordingly, this is why this list was relevant with this witness it
14 should come in.
15 Thank you.
16 JUDGE ORIE: Mr. Russo, let's try to finish this debate.
17 THE INTERPRETER: Interpreter's note could -- Your Honour, would
18 you please kindly switch off your microphone. Would you please switch
19 off your microphone, Your Honour, thank you.
20 MR. RUSSO: [Previous translation continues] ... the documents
21 shown to Mr. Rajcic during his direct examination although he did not
22 personally author many of them, they were, nevertheless, personally
23 reviewed by him and, in fact, used by him to create the reports and
24 documents which we tendered into evidence.
25 So it is not a similar situation to what Mr. Misetic is
2 Irrespective of that, however, the fact that this list of targets
3 is being offered, presumably to establish to the Court what the other
4 targets were in Benkovac, or that there were targets in addition to those
5 indicated by Mr. Rajcic, goes directly to Rule 90 (H) (ii). Essentially,
6 they are saying Mr. Rajcic identified only four targets in and around the
7 town of Benkovac. They're indicating with this target list there were in
8 fact more targets than those four.
9 Under Rule 90 (H) (ii) they were required to put that to
10 Mr. Rajcic, to tell him, Well, isn't it true there were in fact more
11 targets. Whether they were corps level artillery targets or brigade
12 level targets is immaterial. The question I asked him, Mr. President,
13 and this is it at page 16308, line 17 to 18, I asked him about the
14 targets inside the town of Benkovac
15 on either the 4th or 5th of August. Now Croatian forces, I specifically
16 worded the question that way because that encompasses Croatian forces not
17 simply the corps level artillery. I asked him to provide all of the
18 targets. He provided only four. They're now indicating through this
19 target list and putting on a map more targets which they didn't ask him
21 Now we ask not ignore the fact that this was the witness who
22 planned the attack on these towns. There has to be a reason why this
23 list was not shown to Mr. Rajcic. If we had had it in our possession at
24 the time, we certainly would have put it to him, asked him if it was
25 accurate, asked him if it's the source list that he refers to for
1 targets, ask him about the discrepancies in the document itself, any
2 number of things. But, in any case, this document requires the testimony
3 of at least some witness who can provide the information that Mr. Misetic
4 is attempting to provide by a vow, which is that it was a target list
5 which was either used in some fashion, referred to in some fashion by
6 Croatian forces. None of that is apparent from the face of the document.
7 For all we know this document was typed up by a third party who doesn't
8 have anything to do with Operation Storm. There is simply no way to know
9 without a witness testify to.
10 Thank you. Yes, Mr. Misetic, briefly.
11 MR. MISETIC: Mr. President, again, Mr. Russo is inflating two
12 separate issues. He cited to the transcript which is exact justifies our
13 point. Mr. Russo asked Mr. Rajcic which targets were fired on, on the
14 4th. This list is not a list of targets fired on. It is a list of
15 potential targets. It's dated the 30th of July. So obviously this list
16 does not purport to list what was fired on, on the 4th of August.
17 Therefore, he didn't put to Mr. Rajcic what were the potential
18 targets in Benkovac.
19 Secondly, with respect to the relevance of the material as I said
20 there are at least several points here:
21 One, was there a list of targets prior to the 31st of July for
22 these towns? This document can help the Chamber assess that.
23 Secondly, which we did for the Chamber, by the way,
24 Mr. President, we plotted the coordinates on a map for the Chamber as
25 they relate to what Mr. Rajcic testified what was actually fired on, and
1 if the Court will recall yesterday, in the interests of candor with the
2 Court it was us who pointed out there appears to be a discrepancy of
3 about 150 metres on one of the targets.
4 So there is some relevance here for the Chamber to know whether
5 the Croatian army, prior to the 4th of August, had coordinates or targets
6 that Mr. Rajcic identified as having been fired upon on the 4th of
8 And finally, Mr. President, as I said, I'm willing to go back
9 if -- if the Prosecution wishes that we do so, and go back and look at
10 all of the evidence they have tendered that has not gone in through a
11 live witness, which has been unable to be cross-examined. That's not the
12 standard. I am not providing any testimony. The document is what it is.
13 And I was asked by the Prosecution who provided it to us. The
14 Prosecution itself has provided documents and tendered them into
15 evidence, documents that were given to them by witnesses, which they
16 moved into evidence. Mr. Roberts comes to mind. All sorts of documents
17 he claims to have in a personal archive in Banja Luka which he brought to
18 the Prosecution and they tendered into evidence. How do we know that
19 Mr. Roberts didn't alter documents, create photographs, et cetera? These
20 are all matters that can be argued, Mr. President, but they don't go to
22 One moment, Mr. President.
23 [Defence counsel confer]
24 MR. MISETIC: Yes, Mr. President, Mr. Kehoe calls to my attention
25 the irony of the fact that we are going to probably at some point today
1 be arguing about six -- five pages of bar table documents of Mr. Rajcic
2 that were never put to him at all, that were not even put on the 65 ter
3 list to be admitted.
4 So there -- there does appear to be some discrepancy here. The
5 Prosecution documents that they wish to put to the witness are
6 suddenly -- can't come in unless they were put to the witness, but five
7 pages of bar table documents they wish to put in were not put to the
9 JUDGE ORIE: Yes. The number is not irrelevant, but not
10 certainly not a decisive issue. Let's try to remain focussed on ...
11 The Chamber will decide on admission. That's -- Mr. Hedaraly,
12 and may need some more time to do that after the exchange of views of
14 Yes, Mr. Hedaraly.
15 MR. HEDARALY: The only issue I would -- I would add to that is
16 that obviously it would also relate to D1446 which was the presentation
17 that was tendered with those numbers and, therefore, if the -- if this
18 document that was MFI
19 it relates to those points should also not be in.
20 On that note, Mr. President, there was another discrepancy --
21 that's a separate issue on the map, on D1446. If we go to page 12 of
22 D1446, which is the wider map of Benkovac which some of the points
23 plotted from the map.
24 We see there are two additional targets that seem to be in the
25 town of Benkovac that are 49 and 76. However, the coordinates for those
1 two appear to be not near the town of Benkovac. In fact, one of them is
2 in an infantry trench in Korune [phoen] in 49, but that appears to be
3 right in the centre of Benkovac.
4 MR. MISETIC: Mr. President, Mr. Hedaraly is confusing the grid
5 coordinates on the map with the targets.
6 JUDGE ORIE: That was what I would ask him.
7 The numbers 46, we see that the grid coordinates in the area of
8 the 70s and 80s and the 40s, 50s. So, therefore, I wonder whether that
9 is not a mistake.
10 MR. HEDARALY: Thank you for that clarification. That makes
11 sense. But I just note that this list does not only include the three
12 towns as Mr. Misetic mentioned but also points around the front line as
13 we saw in the first pages of the presentation.
14 The point is if the underlying list does not get in then this
15 should also be excluded. That was the main point I wanted to make.
16 JUDGE ORIE: Yes. That is clear.
17 Mr. Misetic, one question, you explained to us the reasons why
18 portions there was -- where the sequence of numbers could be explained by
19 the entries being irrelevant for this case because it was a computer
20 spreadsheet or at least were you -- gave an explanation and you related
21 it to the existence of a spreadsheet of which only part was printed out.
22 MR. MISETIC: Let me say, first of all, I'm being accused of
23 testifying, so I'm doing this at the invitation --
24 JUDGE ORIE: I'm asking you a question -- I have not even asked
25 you a question, as a matter of fact. I just have drawn your attention to
1 an observation made by you.
2 MR. MISETIC: Yes.
3 JUDGE ORIE: As -- Mr. Hedaraly would say part of your testimony.
4 I'm not saying that at this moment. You remember that you
5 referred to this being a printout of part only.
6 MR. MISETIC: Yes.
7 JUDGE ORIE: What's -- how do you know that and is there the
8 complete spreadsheet still available, or -- apparently you have some
9 knowledge about how this was created.
10 MR. MISETIC: All can I tell you, Mr. President, is again what I
11 have been told. This is it a document not -- that was not printed out
12 now. It was printed out in July of 1995. So it is not for this case
13 that it was selected, the printout. I have been told through interviews
14 of Mr. Kardum that when the target coordinates were sent out or printed
15 by this TRS group that it -- what was selected was what was relevant for
16 what the TRS group would be doing. They were givens the towns of
17 Benkovac, Obrovac, and Gracac and to the extent that there are gaps,
18 again, giving away proffer as to what I was told. Those gaps are because
19 those gap do not deal with targets in the zone of responsibility of
21 And your second question about whether the underlying
22 documentation exists, that's obviously something that is in hot
23 investigation at the moment. We don't have it, and we have not been told
24 that such a master list either still exists, or if it does, where it
25 might be located. We were given a hard copy printout, which is this,
1 which I have been told was printed out in July 1995.
2 JUDGE ORIE: Yes.
3 MR. MISETIC: And it was given to us by Mr. Kardum, which just
4 for the record and if necessary we'll translate it, Mr. Kardum testified
5 in Zagreb
6 record by a record keeper where he also testified openly in public about
7 the fact that he gave us this document as well as the Kardum diary. And
8 Mr. Kehoe also correctly pointed out that I should correct Mr. Russo who
9 said that at our meeting on the 11th of December we didn't talk about
10 what the titles of documents were. We have a whole chain of e-mails from
11 both Mr. Tieger and Mr. Russo asking for the Kardum diary. So obviously
12 we did talk about what the substance of the documents was.
13 JUDGE ORIE: Okay, that's your submission in this --
14 The Chamber will consider the admission into evidence of this
15 document. Are we ready to -- are we ready, I should say. Mr. Misetic, I
16 should address you, are you ready to continue --
17 MR. MISETIC: Yes, Mr. President.
18 JUDGE ORIE: -- the examination of the witness.
19 Then, Madam Usher, could you then please escort the witness into
20 the courtroom.
21 Could I meanwhile ask you, Mr. Misetic, at the risk of inviting
22 you to give testimony, the grid references with five digits result in
23 what area exactly covered by it? I mean the more digits there are, the
24 smaller the surface.
25 MR. MISETIC: [Microphone not activated].
1 JUDGE ORIE: Five digits would result in?
2 MR. KEHOE: I believe the five digits take it down to a 50-metre
3 square, 50-metre range, if I'm not mistaken. That may be one back down
4 but it is significantly less. I do know that the -- I don't know if
5 these -- these changes are necessarily arithmetic or geometric. I take
6 it they must be geometric. They are not necessarily perfect. I do know
7 that when you go from the 10th to the 100th that is a definitely a
8 100-metre square reduction. I don't know if we go to the thousands if it
9 is equally true. And I don't want to mislead you.
10 JUDGE ORIE: Yes. Nevertheless, it would be good to now how
11 price --
12 MR. KEHOE: I will find that out.
13 JUDGE ORIE: -- these grid references are, and to the extent you
14 could agree on it with the Prosecution after some 50 minutes of debate
15 that would be appreciated.
16 MR. KEHOE: Mr. President, just on the time-frame, there is one
17 expert that I talked to about these grid-references, I just need to get
18 him on the phone.
19 JUDGE ORIE: Yes, I'm not blaming you for -- and for anything at
20 this moment. I only want to urge the parties to see to what extent they
21 can inform the Chamber jointly rather than to have long debates about it.
22 [The witness takes the stand]
23 JUDGE ORIE: Good morning, Mr. Sinobad. It is quite impolite to
24 invite you in this courtroom and then to continue with discussions which
25 we have started already. Apologies for that. And also apologies for the
1 fact that you to wait for such a long time.
2 Mr. Sinobad, I would like to remind you that the solemn
3 declaration that you gave at the beginning of your testimony yesterday
4 still bind you, and Mr. Misetic will now continue his cross-examination.
5 Please proceed, Mr. Misetic.
6 MR. MISETIC: Thank you, Mr. President.
7 WITNESS: DUSAN SINOBAD [Resumed]
8 [Witness answered through interpreter]
9 Cross-examination by Mr. Misetic: [Continued]
10 Q. Good morning, Mr. Sinobad.
11 A. Good morning.
12 MR. MISETIC: Mr. Registrar if we can pick up where we left off
13 yesterday. If we could call up 1D00-0874, please.
14 Q. Let us start off where we left off yesterday and work our way
15 backwards to see what we may have seen. If we go to -- this is again the
16 statement of Djuro Vukasinovic, who I believe yesterday, you indicated is
17 someone who worked in the police station. And if we go to paragraph 12
18 which is on page 4. Mr. Vukasinovic says at paragraph 12 that while he
19 was meeting with local representatives at around 4.35 the shelling
20 started again. A shell fell within two metres of the police station
21 building, hitting the ticket office of the stadium that was next door to
22 the police station and I asked you yesterday if you knew anything
23 yesterday if you knew anything about a shell landing 2 metres from the
24 police station. And you indicated you did not, can you tell us --
25 A. No.
1 Q. Can he tell us in what direction is the stadium from the police
2 station: North, south, east, or west?
3 A. It is to the right-hand side of the bus station. That's where
4 the stadium is as well as the court building. Excuse me, the police
5 station building. So that is to the right-hand side toward the north.
6 Q. Now if we could go back to page 2 of this document, paragraph 3.
7 Mr. Vukasinovic told the Office of the Prosecutor when he woke up he went
8 out on the balcony and could see clearly where the shells were coming
9 from. He says:
10 "I saw shells landing at the following locations: The petrol
11 station, the fire brigade, where offices of civil protection and the Red
12 Cross were and the Bagat on a Kepol factories. I could hear also that
13 the shells were landing in the direction of the Benkovac barracks."
14 Did you see any shells landing in the vicinity of the fire
16 A. I did not hear anything, save for the things I told you I saw
17 that morning at Barice. That's the only thing I can confirm to you.
18 Q. How many petrol stations were there in Benkovac?
19 A. Only one.
20 Q. Can you tell us where the petrol station was?
21 A. It is at the intersection of the roads from Zadar and Biograd.
22 From the fire brigade building, it is about 100 metres away.
23 Q. Let me see if we can have you draw that on a map.
24 MR. MISETIC: Mr. Registrar, could we have 1D69-0102, please.
25 Actually, it's not ...
1 I think we need a better map. Mr. Registrar, if we could have
2 D1446, please.
3 MR. HEDARALY: Just -- if it assists we have a blank map that the
4 witness marked in direct. It's 65 ter 5186. It may be easier than --
5 MR. MISETIC: Let me see, I think I prefer the satellite view,
6 but ...
7 Could we go to the next page, please.
8 Could we have page 9 of this exhibit, please.
9 Q. Now, with the assistance of the usher, are you able to circle the
10 location of the petrol station?
11 A. I think it is in the part I encircled. It is at the cross-roads,
12 one coming from Biograd and the other one from Zadar. There seems to be
13 another stretch here, but I'm not sure whether it is the railway or
14 something else. In any case, the part that I marked should reflect the
15 area where the gas station is.
16 MR. MISETIC: Mr. President, I ask that the exhibit be marked and
17 I tender only the page that [indiscernible].
18 MR. HEDARALY: No objection to that page with the marking,
19 pending, of course, the numbers on in this map being subject to the
20 issues raised earlier.
21 JUDGE ORIE: The numbers on this map I only see the grid
22 references, 76, 50.
23 MR. HEDARALY: Then it is fine.
24 JUDGE ORIE: Yes, I do not see any targets here.
25 Mr. Registrar.
1 THE REGISTRAR: Your Honours, this becomes Exhibit D1448.
2 JUDGE ORIE: And is admitted into evidence.
3 MR. MISETIC: Okay. Mr. Registrar, if we could call up now
4 1D69-0091, please.
5 Q. This is now the issue of Barice being shelled, the residential
6 area, which you testified about yesterday.
7 A. Yes.
8 Q. [Previous translation continues] ... statement given by
9 Mr. Bozidar Uzelac; do you know who that is?
10 A. I don't know if there are several. In any case, I knew a
11 Bozidar Uzelac who was a misdemeanour judge, if that's the person then I
12 do know him.
13 Q. It appears that this statement is, in fact, given by a
14 magistrate, so it may be the same person.
15 JUDGE ORIE: Was he approximately 40 years old in 1995.
16 THE WITNESS: [Interpretation] Yes.
17 JUDGE ORIE: Please proceed, Mr. Misetic.
18 MR. MISETIC: If we could turn the page, please.
19 Q. Now at paragraph 2, he says:
20 "On the 4th of August, 1995, I was living in an apartment located
21 in the area of Barice in Benkovac city. At 5.00 a.m. I was in my
22 apartment and I heard explosions nearby."
23 And a few lines down, he says:
24 "Shells did not fall near my building. However, I was informed
25 that only 200 to 300 metres where I was, in the area of the primary and
1 secondary school, shells were falling."
2 Mr. Sinobad, in fact, the shells weren't landing in the
3 residential area of Barice. They were landing several hundred metres
4 from the residential area of Barice; correct?
5 A. No. I cannot confirm this, because, in the complex of buildings,
6 there are four or five of the buildings which cover a certain area, and
7 perpendicular to that was the building where I lived. When I got out of
8 my building, I could see shells falling in front of those of four or five
10 As far as I could recall, Uzelac lived in the back row of those
11 building, not in the front row. As for what he says, that the shells
12 were landing in the area of the primary and secondary school, I cannot
13 confirm that, since I have no knowledge of any shells landing there.
14 Q. Just one minute, Mr. Sinobad.
15 In yesterday's transcript, which is unofficial, and I don't have
16 the updated numbers at page 26, line 3, Mr. Hedaraly asked you about the
17 shelling. He asked you:
18 "Now in your statement you say you observed this when you were
19 going to the office. Did you observe the actual impacts then or did you
20 observe the result of the impact?"
21 And your answer was --
22 A. [No interpretation]
23 Q. Sorry, let me ...
24 "When I was leaving the apartment towards the south, I could see
25 the area and I could still see smoke, and I noticed pieces of shrapnel on
1 the facade. There was still some smoke at the site of impact."
2 Now when confronted with Mr. Uzelac's statement, you say, at line
3 page 28, line 10:
4 "When I got out of my building, I could see shells falling in
5 front of those four or five buildings."
6 Now, why, today, do you say you could see the shells falling, yet
7 yesterday when Mr. Hedaraly asked that you question, you said what you
8 saw was the smoke and shrapnels on the side of the building?
9 A. Perhaps I used different terminology. In any case, I meant the
10 same thing. I did not leave my building and go towards the south. I
11 just wanted to say that the exit of my building faces the south, and I
12 went towards the bus station which is to the west of my building.
13 What I wanted to say is that I saw the smoke, meaning that the
14 shell had landed immediately prior to that. Could I see the smoke right
15 after the impact. So perhaps I wasn't putting things precisely. But I
16 stand by what I said yesterday: I saw the smoke.
17 As for the short interval of time, it is very difficult to notice
18 the shell actually landing, unless you are facing directly the area where
19 the shell is going to land.
20 Q. Now, Mr. Sinobad, let me ask you about there meeting with the
21 mayor of Benkovac, which you say took place around -- or you got a call
22 around 4.00 p.m.
23 A. Mm-hmm.
24 MR. MISETIC: Now, Mr. Registrar, if we could go back to
25 1D69-0025, please.
1 Q. This is, again, Mr. Vukasinovic's statement.
2 MR. MISETIC: If we could go to page 3 in the English, at
3 paragraph 11. I'm sorry. I'm told that the actual number is 1D00-0874,
4 for the record.
5 Q. Now, Mr. Vukasinovic at paragraph 11 says:
6 "At around 4.15, I was visited by three of my friends: The
7 municipal president in Benkovac, Dr. Stevo Vuksa; one was the president
8 of the Executive Council, Radomir Ivanis; and another was a lawyer,
9 Radomir Kuzet. They came to see me to organise the movement of the
10 civilians from the vulnerable areas."
11 If we go to paragraph 14, he says:
12 "I returned to the municipal hall around 6.00 p.m. About ten
13 people were at the meeting and assignments were given to each person to
14 ensure that the evacuation was carried out in an orderly manner. The
15 persons in attendance were the three representatives from the government,
16 the manager of civil protection, a representative of the bus company, a
17 representative from the petrol station, and other managers of companies
18 who had trucks. At the meeting everyone had their assignments, and it
19 was agreed how the evacuation was to be arranged."
20 Now, you were present at this meeting that Mr. Vukasinovic
21 describes as -- in fact, you are the representative of the bus company to
22 whom he refers; correct?
23 A. I don't recall attending such a large meeting. In particular,
24 Djuro Vukasinovic, I don't remember him because he was an important
1 As I said, I was summoned after some four hours to come to the
2 municipal building and said that the vehicles had to be prepared. I did
3 attend the meeting although I didn't stay all the way to the end and what
4 I can say with certainty is that Djuro Vukasinovic was not in attendance
5 while I was there.
6 Q. Okay.
7 MR. MISETIC: Let's go to a different statement then.
8 Mr. Registrar, if could I have 1D69-0005, please.
9 Q. This is the statement of Mr. Vuksa, the mayor of Benkovac.
10 MR. MISETIC: If we could turn the page, please, in English at
11 paragraph 10.
12 Q. I just wanted to draw your attention to the fact that he also
14 "Shells fell on the football ground and also on the Benkovac
15 village which is a residential village on the edge of town. I went
16 outside and saw shells falling by the refrigerator plant, the barracks,
17 and the firemen's haul."
18 If we could turn the page, please.
19 Do you know what the firemen's hall was used for?
20 A. That's where the staff of civil protection was quartered, as far
21 as I know, in the firemen's hall where the fire engines were.
22 Q. Okay. Now at paragraph 13, the mayor says that he went on the
23 local radio station at around 4.00 p.m. and told the people not to panic,
24 that he advised them to stay at home, that the front line was stable, and
25 that if they heard shelling, they should go to a safe location.
1 Now, isn't it true that the meeting you described being present
2 at, didn't take place at 4.00 p.m.
3 A. I'm not sure whether it was 6.00 or not. I believe I will state
4 by what I said, that it was around 4.00 p.m.
5 I wanted to add something. I don't know what local radio station
6 the president had in mind. I did not hear of such a station in Benkovac.
7 There may have been one.
8 Q. Mr. Sinobad, at this meeting, who was it that told that you the
9 final destination was Petrovac in Bosnia?
10 A. I truly cannot recall who was the person from the staff that told
11 me that, but somebody did. The president was there, and then read Draca,
12 aka "Lala" was there. I think he was a member of the Executive Council.
13 As for who told me that exactly, I don't know. I just remember that
14 somebody told me that the final destination was supposed to be
15 Bosansko Grahovo. That was the direction that i sent the first bus to.
16 I assigned the driver to go there and then to come back to evacuate other
17 people as well.
18 Q. I believe you said the destination was supposed to be
19 Bosansko Grahovo. Did you mean to say Bosanski Petrovac?
20 A. Pardon me, Bosanski Petrovac.
21 Q. Thank you.
22 MR. MISETIC: Mr. President, I have one final matter I would like
23 to pull up on the screen. It is 65 ter 1831.
24 JUDGE ORIE: Mr. Misetic, the statement you were just referring,
25 to is that the one that of which we denied admission.
1 MR. MISETIC: I believe you did. And if I --
2 MR. HEDARALY: That is correct, Mr. President.
3 JUDGE ORIE: Wasn't it because there were objections?
4 MR. MISETIC: I'm -- yes, there are objections.
5 JUDGE ORIE: And wasn't it that it was -- that you considered
6 that indicia of unreliability.
7 MR. MISETIC: Yes.
8 JUDGE ORIE: Yes. Thank you.
9 MR. MISETIC: Which means that there are specific portions I
10 warranted to put to him. If you read through the statement there is no
11 discussion that I could find about the meeting that the witness talks
13 JUDGE ORIE: Please proceed.
14 MR. MISETIC: If we could go to page 2, this is an interview of
15 Mr. Martic, and it is a Prosecution document from 1996, page 2 in the
16 B/C/S. And if we can scroll down just a little bit there.
17 If we can go to page 3 in the English, please.
18 Can we scroll up in the B/C/S, please. It's the first -- there
19 it is, right there, if we could stop in B/C/S.
20 Q. This, Mr. President, I'm just -- in preparing for this witness I
21 came across this, and I wanted to make sure to put it in evidence and bar
22 table it if necessary. This is Mr. Martic asked about the events on the
23 4th of August. He says:
24 "I was in Knin." This is the second paragraph from the bottom,
25 "and to many it looks funny. I dare say everybody knew about the attack
1 except me. I was with my family in my loft where I lived, and I survived
2 that first attack by pure chance because two projectiles passed only a
3 few centimetres away."
4 MR. MISETIC: Mr. President, we just wanted to tender that and
5 [indiscernible] housekeeping session, if we could ask that this be
6 admitted but again it's on the 65 ter list of the Prosecution. So we
7 tender it as a Defence exhibit.
8 MR. HEDARALY: There is no objection. I think the Chamber had
9 some views on newspaper articles. I don't know if that falls within that
10 ambit or not. We don't objective to its admission.
11 JUDGE ORIE: Mr. Registrar, could you please assign a number to
13 THE REGISTRAR: Your Honours, this will become Exhibit D1449.
14 [Trial Chamber confers]
15 JUDGE ORIE: D1449 is admitted into evidence.
16 Please proceed.
17 MR. MISETIC:
18 Q. Mr. Sinobad, thank you very much for answering my questions.
19 MR. MISETIC: Mr. President, I have no further questions.
20 JUDGE ORIE: Thank you.
21 Mr. Cayley, still the same position, no questions.
22 Mr. Cayley, still no questions? Mr. Cayley is so busy that ...
23 Still no questions.
24 MR. CAYLEY: My apologies, Your Honour. No questions from us.
25 Thank you.
1 JUDGE ORIE: Thank you. Mr. Mikulicic, are you ready to
2 cross-examine the witness.
3 MR. MIKULICIC: I am, thank you.
4 JUDGE ORIE: Mr. Sinobad, you will now be cross-examined by
5 Mr. Mikulicic. Mr. Mikulicic is counsel for Mr. Markac.
6 Please proceed.
7 MR. MIKULICIC: Your Honour, just looking at the clock. It is
8 five minutes to half past 10.00. I wouldn't be long in my
9 cross-examination, but I don't think I could squeeze it within five
10 minutes, so.
11 JUDGE ORIE: If you -- Mr. Hedaraly, I'm also looking at you, how
12 many time would you need?
13 MR. HEDARALY: Probably five to ten minutes.
14 JUDGE ORIE: How much time would you need.
15 MR. MIKULICIC: Let's say 15 minutes, Your Honour.
16 JUDGE ORIE: Yes. That's too much, because the Chamber had in
17 mind to have a bit of a longer break and then have a housekeeping
18 session, but that would be too much before the break. So then we'd
19 rather break -- take the break right away.
20 MR. HEDARALY: Mr. President.
21 JUDGE ORIE: Yes.
22 MR. HEDARALY: Mr. President, if we could have some guidance
23 after the break, after the witness's testimony if we will then do the
24 submissions first or the MFI
25 the courtroom.
1 JUDGE ORIE: Well, then, I have to ... I think we will start with
2 reading out a few decisions which could -- could be postponed.
3 Next on my agenda would be oral reply in relation to interviews
4 of the accused.
5 Then we would briefly deal with D568.
6 And after that, we would deal with adding documents, summarising
7 investigative steps taken by civilian authorities. That is an issue
8 you're aware of.
9 And we would deal with Witness 43.
10 And, finally, at the end, we would deal with the MFI list. That
11 is more or less the sequence I have on my mind at this moment.
12 We will have a break, and we will resume at ten minutes to 11.00.
13 --- Recess taken at 10.27 a.m.
14 --- On resuming at 10.57 a.m.
15 JUDGE ORIE: Mr. Sinobad, you will now be cross-examined by
16 Mr. Mikulicic, and I think I indicated already that he's counsel for
17 Mr. Markac.
18 Please proceed.
19 MR. MIKULICIC: Thank you, Your Honour.
20 Cross-examination by Mr. Mikulicic:
21 Q. [Interpretation] Good morning, Mr. Sinobad.
22 Do you have in front of you a copy of the statement that you gave
23 to the OTP in 2007?
24 A. I don't have it in front of me, but I do remember it.
25 Q. Yes. P2362 is the number, for the transcript.
1 Mr. Sinobad, you said that from 1984 until 1995, you were the
2 manager of the Zagreb
3 said that it was a state-run company; that's right, isn't it?
4 A. No. As for 1995, since in 1990, a holding company was
5 established, then every entity became a legal entity. In Benkovac, it
6 was called Auto Transport Benkovac, and it was registered with commercial
7 court in Split
8 Q. That is to say, that at the time -- or, rather, from 1990 until
9 1995, you were the manager of a part of a company that was registered
10 with the commercial court in Split
11 A. That's right.
12 Q. As for the ownership structure of the company, what was it like?
13 Was this a privately opened company or was it something different?
14 A. Autotransport d.o.o. Benkovac was how it was registered.
15 Q. That's the organisational structure.
16 A. Yes.
17 Q. But I'm interested in the ownership structure. Who owned the
19 A. The state, or, rather, Zagreb
20 whatever it was called at that time.
21 Q. When you say the state, you are referring to the
22 Republic of Croatia
23 A. Yes. Socially owned enterprise. I mean it was a socially-owned
24 enterprise, in actual fact.
25 Q. In paragraph 3, you said that the company in Benkovac of which
1 you were the director had 20 buses.
2 A. Yes.
3 Q. Mr. Sinobad, as you've said in your statement, these buses were
4 used for the evacuation of the population of Benkovac and the surrounding
5 area; right?
6 A. That's right.
7 Q. After the evacuation was carried out, what happened with the
9 A. A certain number of buses I never saw again, and I never knew
10 where they were, because the drivers who brought these -- these people
11 took away the buses to the places where these people were staying. Now,
12 was this some kind of collective accommodate or people staying with
13 relative, whatever. At any rate I never saw them again. Some of the
14 buses were in Belgrade and the drivers took them -- I mean, well, they
15 had they had their own private business with these buses afterwards; so I
16 don't think at the moment there is an single one that is still
18 Q. Do you know, Mr. Sinobad, about any one of these 20 buses being
19 returned to the owner? That is to say, the state-run company,
20 Zagrebacki Transporti, from the Republic of Croatia
21 A. I think that not a single one was returned. Perhaps I would
22 allow for the possibility that say one was returned since one of the
23 busses -- one of the bus drivers returned. Cedo Opatic, he now lives in
24 the village of Biocin
25 Q. Mr. Sinobad, in view of the position you held, were you ever
1 asked about the return of these buses, were any questions every put to
2 you by the Republic of Croatia
3 A. Well, not to me, but I don't see why this question would be put
4 to me since the company itself withered away and the buses left and the
5 bus drivers took them away. They were gone.
6 Q. That is it most certainly correct. But you were the one who
7 organised the transportation with these buses as the director of the
8 company; right?
9 A. Yes. From Benkovac.
10 Q. Thank you for your answers.
11 JUDGE ORIE: [Previous translation continues] ... Mr. Mikulicic.
12 Mr. Hedaraly.
13 MR. HEDARALY: Thank you, Mr. President.
14 Re-examination by Mr. Hedaraly:
15 Q. Mr. Sinobad, I just have a few questions for you based on other
16 questions that you were asked to answer. The first thing I would like to
17 ask you is you remember Mr. Misetic showing you a statement of another
18 witness regarding shells that fell close to the police station in
19 Benkovac; do you remember that?
20 A. I do not remember these shells falling.
21 Q. I understand that. Can you tell the Court how many police
22 officers worked in the police station in Benkovac?
23 A. Oh, I really don't know. If I needed to have some business of my
24 own done, that's when I went to the police station, like to extend my ID
25 or something like that. I don't even know who the head of the station
2 Q. How large a facility was it?
3 A. The building itself of the police station was quite big. That is
4 to say, there was a ground floor and then upstairs - how should I put
5 this? - there was a space of, say, 200 square metres, or so, if I can
7 Q. Were there civilian employees, not police officers, working in
8 that building?
9 A. Yes. Civilian persons worked there on issuing IDs, passports so
10 these were civilians working for the police. That is to say that there
11 were even women who worked on these jobs, issuing IDs, I mean. So it
12 wasn't done by the police themselves.
13 Q. On the occasions that you visited building, how many people did
14 you see there?
15 A. Well, as for the building itself, if we were to exclude the
16 people who worked there, they were mostly operatives. I mean, it wasn't
17 that there were police patrols, so in the building itself, as far as
18 police personnel, there was a maximum of ten persons apart from the
19 civilians I mean who worked there in the services that I have already
20 referred to.
21 Q. I just indicate add maximum of -- of -- what I understood to be
22 police officers. Can you also provide an estimation of how many
23 civilians people worked there as well?
24 A. Yes. I think it would be around the same figure about ten people
25 worked there, since people worked in shifts on these jobs, issuing IDs,
1 passports, and other documents.
2 Q. Thank you. I now wanted to -- to deal with an issue that was
3 also raised in the course of your cross-examination about the shelling
4 that occurred both before 1995 and that occurred on the 4th of August in
5 1995 and your reactions to that.
6 Now, if I remember correctly, you testified that between 1992 and
7 1995, the shelling would last approximately 10 to 15 minutes; is that
9 A. Yes.
10 Q. And how long did the shelling last on 4 August 1995?
11 A. Well, the detonations could be heard for hours. That is to say,
12 from early morning, when they started, until later. That is to say, went
13 on for several hours. I'm referring to the entire area, the area of the
14 municipality, from which the detonations were coming.
15 Q. Between 1992 and 1995, did you also hear detonations in the area
16 of Benkovac but not in the town itself?
17 A. Well, in that period, for the most part, I remember that shells
18 fell around the bus station as I've already said in that park. At that
19 time, it was just a meadow. So there was this series of shells that
20 would fall, and then a lull in the shelling, and then a new series, and
21 then they would move. I don't know whether they were guided or not, but
22 at any rate, they were moved in a way because they fell in the vicinity
23 of the bus station, the motor society, et cetera.
24 Q. Now, are you talking between 1992 and 1995; or are you talking
25 about the 4th of August, 1995?
1 A. No, no, 1992/1995.
2 MR. HEDARALY: I have no further questions, Your Honour.
3 JUDGE ORIE: Thank you.
4 [Trial Chamber confers]
5 Questioned by the Court:
6 JUDGE ORIE: Some questions were put to you, Mr. Sinobad, about
7 the buses and whether they were returned or not, and you told us that you
8 had information that you would have been charged or investigated for the
9 disappearance of the buses.
10 Could you tell us how you got to know this and what actually did
11 happen in this respect?
12 A. I mean -- well, I talked to people. I was interested in this.
13 But I believe that there was no legal possibility for charging me for the
14 disappearance of these buses because I was the director of the bus
15 company in Benkovac up until that day.
16 After that day, I was given the assignment of transporting the
17 civilian population with those buses. The drivers drove these civilians
18 to different places: Some went to Belgrade
19 others to eastern Serbia
20 they were the owners of the vehicles because on account of that --
21 JUDGE ORIE: May I stop you there. I'm not interested in the
22 details of what happened with the buses but I was, rather, interested
23 in -- in whether any legal action was taken against you, but I do
24 understand from your answers that this was not the case.
25 THE WITNESS: [Interpretation] It wasn't.
1 JUDGE ORIE: That was my question for you.
2 I have no further questions.
3 Has the questions in re-examination triggered any need for
4 further questions to the witness?
5 MR. MISETIC: No, Mr. President.
6 JUDGE ORIE: Then, Mr. Sinobad, this concludes your evidence in
7 this court. I would like to thank you very much for coming a long way to
8 The Hague
9 the parties and by the Bench, and I'd like to wish you a safe trip home
11 THE WITNESS: [Interpretation] Thank you very much.
12 JUDGE ORIE: Madam Usher, would you escort Mr. Sinobad out of the
14 [The witness withdrew]
15 JUDGE ORIE: We will have again a break, and a bit longer break,
16 so that everyone is well prepared for our last session, in which, as I
17 said before, we'll deal with quite many issues, and we need some time to
18 update all the last information.
19 Mr. Cayley, I understood that apart from whether it should be
20 admitted or not, but at least that as far as the limiting the Croatian
21 Helsinki Report to what may be relevant for this case that there is no
22 disagreement about that.
23 MR. CAYLEY: That's right, Your Honour, yes. Thank you.
24 JUDGE ORIE: Thank you, that's now on the record.
25 MR. KUZMANOVIC: Your Honour, are we going to be working off the
1 last MFI
2 JUDGE ORIE: The last MFI
3 MR. KUZMANOVIC: Which I believe was sent around by Mr. Monkhouse
4 maybe a week and a half ago at our last MFI session.
5 JUDGE ORIE: I do not know which is the last one you received. I
6 worked on the one that we started going through this morning at 8.00.
7 That's the only thing I know.
8 MR. KUZMANOVIC: I was advised that one was sent out yesterday,
9 but did I not get it so ...
10 JUDGE ORIE: Yes. As far as all the MFI's are concerned, of
11 course, no more added that may be added some recent ones since last week
12 because I do remember that we had a couple of documents MFI'd. So
13 Mr. Hedaraly.
14 MR. HEDARALY: Mr. Monkhouse sent a draft revised updated MFI
15 list yesterday at 3.23 p.m.
17 JUDGE ORIE: Yes. You see, we can't miss him for a second,
18 because -- so we'll work on the most recent one sent to you.
19 Any further questions for what we'll do after the break?
20 Then we'll have a break of 50 minutes, which means that we'll
21 resume at five minutes past 12.00, which would allow for a long session,
22 until a quarter to 2.00. And we'll see at the end whether we can finish
23 with all the work to be done or whether we would still have to sit
24 tomorrow as well. One thing is for sure, that it's unlikely that all the
25 decisions are there by the end of this morning's session, all the
1 decisions on admission into evidence, then, of course, it is perfectly
2 clear that the Chamber that the parties should be fully informed about
3 what is and what is not in evidence at the end of the Prosecution's case.
4 We'll see how we're going resolve that, but that's on our mind to
5 have clarity in this respect, as soon as possible. And, of course, some
6 of the decisions to be read will add to this clarity.
7 Any further questions? If not, we'll resume at five minutes past
9 --- Recess taken at 11.18 a.m.
10 --- On resuming at 12.16 p.m.
11 JUDGE ORIE: As I said before, the Chamber needed some time to be
12 finally prepared.
13 At the same time, where the Chamber may have had in mind to see
14 whether we could deal with all the matters, we certainly are not in a
15 position to finalise all of the outstanding issues, if only, for example,
16 because we're still waiting for further submissions on the presidential
17 transcripts, which we expect tomorrow; and then, of course, we'll give it
18 full priority so as to decide the issue as quickly as possible.
19 I -- as I said, I will postpone for the moment the reading of six
20 oral decisions.
21 The Prosecution has asked to give an opportunity to reply to
22 the -- to submissions by the Defence on the admission of interviews of
23 the accused.
24 MS. GUSTAFSON: Thank you, Your Honour.
25 JUDGE ORIE: Ms. Gustafson, you may proceed.
1 MS. GUSTAFSON: Your Honour, the context in which the response
2 should be assessed is that of the clear standard for the admission of an
3 accused's statement against a co-accused. The Appeals Chamber has made
4 clear that such statements should only be excluded in exceptional
5 circumstances that would render the statement devoid of probative value.
6 And this is clear from the Prlic and Popovic Appeals Chamber decisions
7 that are cited in our motion
8 There's nothing raised in the response that would point to any
9 such exceptional circumstances, either individually or cumulatively.
10 First, the allegations that General Cermak was somehow improperly
11 coached into providing certain answers is based on a microscopic
12 examination of particular extracts of an interview that had been taken
13 out of context and then mis-characterized as coaching.
14 Secondly, the claim that certain statements made by
15 General Cermak are uncorroborated, even if it were true, is not a basis
16 for their exclusion, but, in fact, they're not true. These claims are
17 similarly based on mis-characterizations of General Cermak's words and of
18 the evidence.
19 First I would like to address the allegations that General Cermak
20 was coached during his 2004 interview. These allegations, Your Honours,
21 have to be assessed in light of the overall context of this interview.
22 And, Your Honours, when you read the transcript of this interview, and
23 watch the video of this interview, it is clear that Cermak is
24 unequivocally and at times adamantly asserting the same position he has
25 asserted all along since 1998. There are few interventions by his
1 counsel; but in any event, Cermak is clearly in control and he pays
2 little attention to these relatively few and minor interjections.
3 Secondly, General Cermak was entitled to consult with his
4 counsel, and his counsel was entitled to consult with and advise
5 General Cermak during the interview. The mere existence of a few
6 interjections by counsel is not in and of itself inappropriate.
7 And in the response, these brief verbal exchanges are taken out
8 of context, and mis-characterized as counsel, quote, coaching
9 General Cermak to provide certain statements about General Gotovina to
10 OTP investigators.
11 Your Honours when these exchanges are placed back there their
12 context, these are marked; one, don't show that General Cermak was
13 coached into providing statements by General Gotovina; and two, in any
14 event, are insufficient to render the interview unreliable or
16 When these statements are viewed in their context,
17 General Cermak's counsel is either advising General Cermak to answer the
18 question that he was asked; advising General Cermak to clarify the manner
19 in which the question was asked or the way the answer is given; or simple
20 repeating a position that General Cermak had already made clear sometimes
21 on several occasions. And I would like to go through a couple of
23 And the first one is in -- is the first one raised in the
24 response, and this is at page 17 of Annex A of the response. And this is
25 the interjection by Mr. Prodanovic where he says:
1 "Communication with Gotovina, communication with Gotovina, yes."
2 And General Cermak says,
3 "Yes, fine."
4 And Mr. Prodanovic says:
5 "Say, it, say it."
6 And a few lines later he says:
7 "When you see each our how do you get along, do you get along?"
8 And General Cermak says:
9 "Uh-huh, that previous question.
10 And Ms. Slokovic says:
11 "Are you every day, Mr. Prodanovic, are you every day?
12 And General Cermak, "Oh no that is ..."
13 Your Honours, the key to understanding this interjection is
14 General Cermak's statement, "Uh-huh that previous question." And, in
15 fact, if you go back to page 7 of this same interview, this is where the
16 context of this interjection begins. And at page 7, the investigator
18 "Okay. Can I first ask you about your relationship with
19 General Gotovina and how it actually worked together when you -- your
20 time in Knin?"
21 Then own the next page, the investigator again:
22 "We're good. Okay, so how did it really work? How was, how were
23 your tasks separated, how did you communicate? Perhaps" --
24 THE INTERPRETER: Interpreter's note, would you kindly slow down
25 for the sake of the interpretations, especially when you're reading.
1 Thank you.
2 MS. GUSTAFSON: I apologise.
3 The investigator says:
4 "How did you communicate? Perhaps you could explain on a
5 day-to-day basis how it actually operated."
6 Cermak then begins to speak and for two pages, does not answer
7 that question.
8 At page 10, the investigator asks again:
9 "Okay. We'll come back to your tasking by the president. I'll
10 go back to my question at the beginning, your relationship, your
11 day-to-day relationship with General Gotovina from day one."
12 On the next page the investigator asks again:
13 "Okay. And then what happened? Presumably would you have been
14 given an office. And Gotovina would have had an office. Was there any
15 plan to communicate on a daily basis? How was it set up?"
16 Cermak continues and he again doesn't answer this question.
17 Then on pages 13 and 14. There's an intervention by
18 Mr. Prodanovic that is not included in the response. First he complains
19 that the translation of the question was not quite correct, that the
20 question was about General Cermak's relationship with Gotovina on a
21 day-to-day basis and how they communicated, and notes that General Cermak
22 has not yet answered that question. Then Mr. Prodanovic reminds
23 General Cermak that that question was about communication with Gotovina,
24 and advised General Cermak to answer that question. For two more page,
25 Cermak again fails to answer that question.
1 It is it then, Your Honours, that we reach the page that is
2 included in the response and that is the context in which Mr. Prodanovic
4 "Communication with Gotovina, communication with Gotovina, say
5 it, say it."
6 And then, finally, at page 21, the investigator runs once more to
7 his original question. He says:
8 "Okay. So I'll still go back to my original question. How did
9 you operate with Gotovina when he was actually in Knin? Did you meet on
10 a daily basis? Did you -- how did this contact work?"
11 And then, Your Honours, General Cermak answers the question and
12 he answers it without interruption.
13 Your Honours, this example cited in the response is not coaching.
14 It is it General Cermak's counsel advising General Cermak quite
15 appropriately to answer the question he was asked. He is not suggesting
16 any answer to him, and he is certainly not telling General Cermak to
17 provide certain statements about Gotovina to OTP investigators as the
18 response claims.
19 A second example, is the one cited at pages 30 to 31 of the
20 response, in the Annex to the response. And this an assertion, this is
21 the foundation for the assertion at paragraph 9 of the response that
22 General Cermak was coached to state that General Gotovina, "Was informed
23 of crimes by members of the international community."
24 Well, first of all, what General Cermak actually said in this
25 passage was that, "Everything that was written to me by the international
1 community, he," meaning General Gotovina, "was also informed about that."
2 General Cermak was not even stating that General Gotovina was
3 informed of crimes by members of the international community. So it is
4 hard to imagine how this could have been coached.
5 In any event, it's difficult to see how General Cermak's answer,
6 actual answer could have been coached by Mr. Prodanovic's advice to
7 General Cermak, quote, to mention international organisations. This
8 is -- if you look at the video of approximately two-second intervention
9 by Mr. Prodanovic and it is not suggestive of any particular answer.
10 General Cermak then says, Everything that was written to me by
11 international community, he was also informed about that.
12 And again in context, General Cermak has just finished a laundry
13 list of sources of information that General Gotovina had on the previous
14 brief page. He says, I just explained what his possibilities were of
15 getting information. All three services. He had his commander, units of
16 on the ground. His commanders also had to reacts and had to punish. He
17 had the SIS. He had the military police. It is then that there is the
18 intervention by Mr. Prodanovic and General Cermak's statement everything
19 that was written to me by the international community he was also
20 informed about that.
21 This is simply a logical conclusion of what General Cermak has
22 said on the previous page.
23 A third example, page 34, of the annex to the response. And this
24 is a claim that General Cermak was coached into making a statement that,
25 "there was no handover between me and Gotovina."
1 If you actually look at what Mr. Prodanovic said, Mr. Prodanovic
2 advised Mr. Cermak to, "get him to show you the handover." This is
3 simply advice to Mr. Cermak to be shown any relevant document about a
4 matter under discussion. This is it a classically appropriate
5 intervention by counsel that in no way could be considered to be
7 But in any event General Cermak ignored the advice. He didn't
8 ask for a document he just stated:
9 "There was no handover between me and Gotovina."
10 This was just a repetition of what Cermak had state add few lines
11 earlier when he said the claim that was a such a hand over was
13 And finally, the example contained at page 36 and the annex to
14 the response, and this is a claim that General Cermak was coached into
15 stating that on the 6th of August, video meeting, General Gotovina was
16 not upset about crimes but that Knin was dirty and that President Tudjman
17 was coming to town. And that's at paragraph 9 of the response.
18 Well, firstly, General Cermak's statement at page 36 that
19 General Gotovina was upset about the "mess in Knin" reflects comments
20 that are made in that video itself which is in evidence, and which Cermak
21 had stated that he had just watched.
22 Secondly, General Cermak stated that:
23 "General Gotovina was upset not about the situation but because
24 the president was coming to town and bus his darling Susak was arriving."
25 This was a statement General Cermak said before there was any
1 intervention by his counsel. It was only then that Mr. Prodanovic
2 said -- stated he wasn't upset about crimes. In essence, Mr. Prodanovic
3 is just repeating what General Cermak has already said, moreover,
4 Mr. Prodanovic was reiterating a statement General Cermak had made just a
5 few pages earlier when he was asked, at page 34, what General Gotovina's
6 reaction was when Cermak raised the issues of crimes with him. General
7 Cermak said:
8 "His reaction was yes, we know, we'll handle that. I was far
9 more upset than he was."
10 But, again, Your Honour, General Cermak ignored the comment made
11 by his counsel. He did not repeat, Mr. Prodanovic's remark that
12 General Cermak was not upset about crimes. What he said was:
13 "He wasn't upset about what the military had done but because the
14 town was dirty and there were no state signs anywhere, and that's very
15 clear on that tape."
16 This is not a coached statement. This is it clearly
17 General Cermak commenting on what he has seen on the tape and stating his
18 own position on what happened at that meeting.
19 Your Honour, the other examples cited in the response are all
20 similar in nature. In anticipation of written submissions, we have
21 prepared a chart setting out the context of each of these statements, and
22 explaining that what I've just stated that these remarks don't amount to
23 coaching, and I would be happy to go through each of those now. I'd also
24 be happy to distribute that chart to the parties and the Bench. I don't
25 know what the Court prefers.
1 JUDGE ORIE: Have you given a copy to the Defence.
2 MS. GUSTAFSON: No, Your Honour.
3 JUDGE ORIE: Because it is a by the difficult if it is the last
4 opportunity to respond to that. At the same time, I take it that the
5 chart you have done it in a concise way, so one option would be to give
6 it now to the Defence, so that at least they can have a look at it; and
7 either invite you to say aloud what -- it is clear to us -- the problem
8 is that if the Defence hasn't heard your interpretation of the matters it
9 is very difficult for them to -- if they would wish to resupply, but I
10 could not exclude that they are not aware of what you said. So that is a
11 basic principle of fairness in the proceedings.
12 MS. GUSTAFSON: Yes, Your Honour I wasn't aware that the team had
13 granted the request to certify.
14 JUDGE ORIE: No, if you say -- well, it always depends on what
15 you submit, isn't it? I just said I could not exclude for the
16 possibility that they wish to -- and that's maybe an understatement.
17 MS. GUSTAFSON: Yes, Your Honour I just -- this would have been
18 attached to the written --
19 JUDGE ORIE: Let's move. On how much time would it take you to
20 just to briefly point at -- you say it is all similar. Perhaps in short
21 even if you would summarise your argument where it has been given a bit
22 more detail then at least the Defence has had notice.
23 MS. GUSTAFSON: Certainly, Your Honour.
24 The example at page 29 of the appendix to the response. This was
25 reminder by counsel to General Cermak to answer a question that had been
1 asked in a hypothetical manner in a hypothetical fashion and the full
2 context of this exchange can be found at pages 22 to 32 of the interview.
3 The next one is pages 30 to 31 of the annex. Again, the full
4 context of this exchange is at pages 22 to 32.
5 THE INTERPRETER: Kindly switch off all unnecessary microphones.
6 Thank you.
7 MS. GUSTAFSON: The example at pages 32 to 33 of the annex. This
8 was simply an intervention by counsel asking General Cermak to clarify
9 his answer, by clarifying who this group of people were associated with.
10 There is no suggestion of any answer.
11 At page 35 in the annex, the full context of this exchange at a
12 pages 32 to 43 of the interview. Mr. Prodanovic was simply repeating a
13 position that Cermak had taken earlier, about his -- about his role as an
14 administrative general.
15 At page 43 of the annex, Mr. Prodanovic interrupts General Cermak
16 before he makes an answer by saying, No, no. Full context of this
17 exchange is at pages 32 to 46 of the interview. And the intervention was
18 simply a reiteration of the position that General Cermak had just stated.
19 At pages 44 to 45 of the annex, General Cermak had just stated
20 that he had nothing to do with the military forces in the area, and then
21 Mr. Prodanovic interrupts General Cermak by saying, You never commanded,
22 which was again just repeating what he said immediately prior. And the
23 full context of this exchange is at pages 43 to 45 of the interview.
24 At page 46 of the annex, again, Mr. Prodanovic interrupts General
25 Cermak by saying, But you were not there in response to the planning of
1 the military operation. Full context is at pages 45 and 46, and this is
2 merely a repetition of what Mr. Cermak had said earlier about not being
3 involved in the planning of Operation Storm.
4 At page 52, of the annex, firstly this has nothing to do with
5 General Gotovina. But again the intervention is simply Mr. Prodanovic
6 stating, "international community," and General Cermak continuing his
7 answer. And it is consistent with statements Mr. Cermak had made
9 At page 60 of the annex, Mr. Prodanovic is simply advising
10 Mr. Cermak to clarify the way he is giving his answer, by stating it
11 would be somewhere in writing, after Mr. Cermak denied being in charge.
12 At page 64 of the annex, Mr. Prodanovic interrupted General
13 Cermak by stating:
14 "You did not command them or the military police."
15 Firstly the full context of this exchange is at pages 62 through
16 65, and this statement is consistent with Mr. Cermak's position that he
17 had made clear in many previous occasions during this interview and
18 previous interviews.
19 Similarly at page 96 of the response, the interruption by Mr.
20 Prodanovic was to state:
21 "It not your job to inform them."
22 Which was again a repetition of something Mr. Cermak had said on
23 many previous occasions that he no authority over the police.
24 At page 102 in the annex, Mr. Prodanovic simply said:
25 "And the coordinator."
1 And if you look the full context of this exchange is at pages 97
2 to 103.
3 And finally at pages 163 to 164, in the annex, Mr. Prodanovic
4 asked Cermak to explain that had Mr. Cermak been under the Main Staff
5 then he could receive and then Mr. Cermak interrupts Mr. Prodanovic and
6 says, I have said all of this already, and tells him to calm down and
7 then Mr. Cermak explains that he has said this all before; but if this
8 had been the command structure then he would have received his orders
9 from General Gotovina and the Main Staff.
10 Your Honours, when these interventions are looked at in the
11 context of the interview as a whole and throughout three interviews there
12 are relatively view of them. They're short. They're largely innocuous
13 and not suggestive of anything. To the extent they may be seen as
14 suggesting some kind of an answer, they are generally ignored or given
15 short shrift by General Cermak, who is quite focussed on telling his own
17 Your Honours, we have prepared a version of the 2004 interview
18 with all of these interruptions by counsel translated. They have not
19 been translated before because it was just a transcription, and we would
20 be happy to provide that to the Chamber and replace the version that we
21 had tendered earlier, with this revised version.
22 And now I'd just lying to briefly cover the second aspect of the
23 response, which is the alleged lack of corroboration of certain -- of
24 General Cermak's remarks that relate to General Gotovina. The claim is
25 that these remarks are uncorroborated and therefore unreliable.
1 Well, even if this claim were true, this would not make any of
2 these statements, quote, patently unreliable or otherwise amount to a
3 proper basis for their exclusion. And that is clear from the Appeals
4 Chamber jurisprudence on this issue. But, in fact, the claim is not
5 accurate. The claim is premised on mis-characterizations of Mr. Cermak's
6 actual words and the state of the evidence.
7 For example, at paragraph 20 of the response it is claimed that
8 General Cermak stated that Forand and other internationals met with
9 General Gotovina "to discuss the commission of crimes," and then claims
10 that this statement lacks corroboration.
11 Well, first, that is a mis-characterization of General Cermak's
12 words. General Cermak was asked if he ever referred internationals who
13 reported or complained about crimes to General Gotovina and Cermak stated
14 that internationals including Forand:
15 "Did go and talk to General Gotovina. They didn't only talk to
16 me. General Forand went to see General Gotovina several times. Other
17 people went to see him."
18 This is at page 51 of the 2001 interview.
19 General Cermak doesn't say anything about the purpose of these
20 meetings. And his actual words are quite specifically corroborated by
21 the evidence of General Forand, who described two meetings that he held
22 with General Gotovina and described complaining about the commission of
23 crimes at both of those meetings.
24 But in any event, there is actually evidence that members of the
25 international community met with General Gotovina for the express purpose
1 of discussing crimes. So even the version as it is mis-characterized is
2 corroborated. This is supported by a statement that has been tendered by
3 the Defence, of Witness 174; and that is Exhibit D898, Witness 174 stated
4 in relation to his meeting with General Gotovina that:
5 "The crimes committed in Sector South were one of the two
6 subjects I wanted to raise during the meeting."
7 JUDGE ORIE: Ms. Gustafson, I don't know to what extent would you
8 like to go further in detail of the corroboration, but the Chamber feels
9 that -- that it's sufficiently assisted and invites to you focus on the
10 fundamental aspect of this thing, which is already dealt with, as a
11 matter of fact, in the submissions made until now.
12 But the Chamber certainly does not encourage you to go into
13 details of -- of where there is corroboration, exactly, of which words in
14 the interview.
15 MS. GUSTAFSON: Thank you, Your Honour. I just invite the
16 Chamber to, of course, as they will look closely at General Cermak's
17 actual words and that -- I believe the Chamber will conclude that these
18 allegedly unreliable statements are clear, consistent, and corroborated.
19 Thank you very much.
20 JUDGE ORIE: Thank you.
21 Mr. Misetic, is it you who will now request us for leave for a
23 MR. MISETIC: Yes, I believe we filed that in this morning.
24 JUDGE ORIE: Please do so. Leave is granted.
25 MR. MISETIC: Thank you, Mr. President.
1 The submission by the Prosecution misses the forest for the
2 trees, Mr. President. And, as a matter of fact, in the submission we see
3 exactly what the fundamental point is here, which is the Prosecution and
4 the Defence can now engage in an argument about what is or isn't
5 corroborated in the statement.
6 The reason we have to engage in that argument, of course, is
7 because General Gotovina's fundamental right to cross-examine witnesses
8 under Article 21, is impeded by this procedure. And many of the
9 questions, both from the Prosecution and the Defence, about what is or
10 isn't corroborated would, of course, would be normally in the normal
11 course put to a witness, challenged, tested, and the Chamber can then
12 come to own conclusions about what a particular witness in a statement
13 said or didn't say, meant or didn't mean, and what is or isn't
14 corroborated. That is the fundamental issue here, and the fact that
15 we've gone through there exercise now for 20 minutes to half an hour
16 trying to pick through what is or isn't corroborated, what is or isn't
17 coaching actually goes to the fundamental point, which is, again, this
18 can't be tested.
19 Now, with respect to the point about coaching, I submit to you,
20 Your Honour, that what you see on that video is a law school example of
21 coaching. The reason is, and I would put it to the Prosecution, how
22 would the Prosecution feel about, for example, letting a lawyer now in
23 the courtroom sit next to witnesses and be able to whisper answers to
24 witness who is are testifying before the Chamber. I have a sneaky
25 suspicion that the Prosecution probably wouldn't like that procedure.
1 Now, why is it coaching? An attorney in representing a client at
2 a deposition or at a suspect interview, particularly at suspect interview
3 is present because of the rights that a suspect has under the Rules of
4 Procedure, means Rules 42 through 44, and in particular the right to
5 remain silent and to not incriminate himself with statements made during
6 that interview.
7 That is a role of an attorney at a suspect interview. It is the
8 job of an attorney at a suspect interview to make legal objections to
9 questions that are being posed, or to provide legal advice; for example,
10 Do not answer that question because it may tend to incriminate you.
11 We have gone through this, and I believe based on what I heard,
12 that the Prosecution will concede that many, if not all of these
13 interventions, involve advice as to how to testify on the facts, which is
14 per se, coaching. Because it is not allowed under the Rules. The
15 lawyers were there to make legal objections, not to make factual
16 clarifications, assertions, et cetera. It is per se coaching.
17 Now, the way that the Prosecution is reading the words actually
18 asks you to ignore the reality of the situation which is that these
19 suspect interviews involved preparation, which I believe the Prosecution
20 will concede. Preparation between counsel and the accused as to what
21 potential questions may come up during the suspect interview, what the
22 answers are to the questions that will be posed.
23 So a subset of coaching is, of course, queueing, which is what
24 has already been rehearsed in the preparation for the suspect interview
25 is then queued by using certain words or phrases in order to remind the
1 deponent of what has been discussed prior to coming to the suspect
2 interview. Again, these are issues that we can argue back and forth.
3 These are issues that would be developed in cross-examination, which
4 cannot obviously take place here as these statements come in.
5 The context of these interviews is something that we would gladly
6 explore if given the opportunity. The context of the 2004 interview is
7 that the statements are given in the detention unit; the statements are
8 given after the Trial Chamber denied provisional release; and the
9 statements are given after the Prosecutor asserted that if the accused
10 would give a statement to the Office of the Prosecutor, in exchange, the
11 Prosecution will not oppose a renewed provisional release motion. That's
12 the context of this, and I would be happy to debate this context further.
13 I believe it is relevant. Again, these are all issues that would be
14 addressed in cross-examination.
15 Now, Prosecution says that we are addressing particular
16 microscopic aspects of the -- of the interview. It just so happens that
17 that the microscopic aspects of it are the ones that deal with
18 General Gotovina, which is obviously all that we're concerned about. So
19 to that extent, whether you wish to classify it as microscopic or not,
20 our interest in this is only as it relates to the use of the statement as
21 against our client.
22 Furthermore, the standard to be applied is not the standard that
23 has been discussed by the Prosecution. The standard is as it states in
24 Rule 89 (D). Rule 89 (D) obviously says if the need to ensure a fair
25 trial outweighs the probative value, then it can be excluded by the
1 Chamber. That is the standard to apply.
2 We submit that in light of the fact that there is no
3 cross-examination that can take place here, and in light of the fact that
4 there is a clear coaching as legally understood, clear queueing, then
5 that has to be a factor to be considered under Rule 89 (D); furthermore
6 as is relates to corroboration, the Prosecution does not actually -- and
7 I would add that the Prlic decision one of the factors explicitly
8 mentioned by the Appeals Chamber that have to be considered as to
9 admissibility is corroboration or the use of the statement, includes
10 corroboration of the statements made.
11 Now, I go back to some of the cited portions and some of the
12 coaching and it says, for example, at page 36, the coaching is:
13 "He wasn't upset because of crimes."
14 Then there's a next question, which is not transcribed from
15 General Cermak to his lawyer:
16 "He wasn't what?"
17 Again the lawyer says:
18 "Upset because of crimes."
19 Then the answer that comes out at the end is:
20 "He wasn't upset about what the military had done but because the
21 town was all dirty and there were no state signs anywhere."
22 Now, if the Prosecution is going to stipulate that that statement
23 made, "he wasn't upset about what the military had done," doesn't relate
24 to crimes, we have no problem. If that's the -- if we can get that
25 stipulation from the Prosecution.
1 On the other hand, if it is going to be used by the Prosecution
2 to say in closing argument General Cermak said -- doesn't -- that he
3 wasn't upset about crime, and that's how you should interpret the
4 sentence, then obviously it is coaching, and it can be not be tested on
5 cross-examination. We cannot see if that would still be the position of
6 the declarant today.
7 I would add that the Prosecution has not gone through, and quite
8 frankly, is in the position of vouching now for one of the accused but
9 won't actually come out and say which portions they're vouching for, as
10 the Prosecution and I will take a look if there's a submission; in light
11 of the Prlic Appeals Chamber's decision, if the Prosecution is willing to
12 state these claims, we believe, are corroborated, these are not; then we
13 need to know what the Prosecution itself believes about whether these are
15 For example, again, I go back to the statement. Perhaps there's
16 a misinterpretation by either the Prosecution or the Defence about the
17 statement at page 30, which was -- and the top of page 31 which says:
18 "Everything that was written to me by the international community
19 he was also informed about that."
20 Now, does that mean that the international community also
21 informed him about that, or does that mean that the substance of the
22 matters was given to him, even though not by the international community?
23 If it is the former, and if that's the position of the
24 Prosecution, then, again, we go and look to see whether the Prosecution
25 believes that statement is corroborated; and we again call your attention
1 to the fact that the Prosecution's own declared expert Mr. Theunens was
2 examined on this point and himself stated that he could find no evidence,
3 no written evidence of any such notice from the international community
4 representatives to General Gotovina.
5 Again, that gets us involved in a situation of how do we
6 interpret this, what does this mean, et cetera? If the Prosecution will
7 stipulate that that sentence doesn't mean that General Gotovina was
8 advised by the international community, we have no issue; but the problem
9 results from the issue that we have no ability to cross-examine.
10 I will wrap up again, Mr. President, and Your Honours by saying
11 in this particular situation according to the Appeals Chamber
12 jurisprudence and according to Rule 89 (D), the Trial Chamber has the
13 discretion to admit or exclude this evidence. We submit -- as it relates
14 to General Gotovina.
15 We submit, Your Honours, that the factors to consider are, in
16 fact, the coaching which take -- took place here, which was improper; the
17 overall circumstances and lack of corroboration, at least as it relates
18 to General Gotovina and assertions and interrogations of those words,
19 that could be put forward by the Prosecution; we submit that the
20 tendering of these documents at this stage of the proceedings is also
21 something that you should consider, because unlike the Prlic case, which
22 is still ongoing, but the statements tendered in the midst of the
23 Prosecution's case in chief, the Prosecution tenders these at the end of
24 the case, where anything that could have been in dispute by the parties
25 about how to interpret these words could have been addressed with --
1 through witnesses or otherwise addressed.
2 We submit, Your Honours, that the appropriate remedy, which would
3 ensure the admission of the statements vis-a-vis the declarants of the
4 statements but also protect the fundamental rights of General Gotovina
5 under Article 21 is to redact those portions of the statement as they
6 relate to General Gotovina or otherwise that the statements can not be
7 used against General Gotovina in order to -- under Rule 89 (D) in order
8 to protect his fundamental rights under Article 21 of the Statute.
9 Thank you very much.
10 JUDGE ORIE: Thank you, Mr. Misetic. I think we have two
11 requests or at least the Chamber is aware that the Cermak Defence wanted
12 to reserve its position as to address the Chamber on the matter. We have
13 the other matter that is, Mr. Kuzmanovic, that you informed the Chamber
14 that you had not finished reading all of it.
15 Nevertheless, I would invite you to make -- I do see that in
16 order to come to a final position that you would have to read the
17 document in its entirety. At the same time, sometimes observations can
18 be made already on the basis, for example, some of the observations
19 whereby Mr. Misetic asked such that the inability to cross-examine a
20 witness appears to be an important matter.
21 Two questions: First, could you make any observations of a more
22 general nature not fully dependant on every line and page of the
23 interviews; and, second, how much time would you still need then?
24 MR. KUZMANOVIC: Your Honour, I will answer second question
25 first. The second question is I'm going finish this tonight. I have
1 made an informal communications with Chambers advising them that if I
2 have to, I'll burn the rest of the midnight
4 The first question is I have made some general observations. The
5 first general observation is obviously relates to what Mr. Misetic talked
6 about in terms of the late stage submission of this in the form of a bar
7 table submission. Given the fact that many witnesses --
8 THE INTERPRETER: Could all the unused microphones -- yes, thank
9 you very much.
10 MR. KUZMANOVIC: Given the fact that many witnesses have
11 testified in this case already, and that potential cross-examination
12 issues may have been circumvented by what has been discussed in the
13 interview is problematic for us.
14 The second portion of it is there are obviously materials in the
15 interview that we don't necessarily have any problems with. The whole
16 issue really is contextual in nature; and far as I'm concerned, it sort
17 of relates to some of the MFI
18 cross-examine witnesses that have testified about subject matter that has
19 arisen in the interview; and I will be able to provide specific examples
20 for the Chamber when I am finished with my analysis.
21 So in brief, that's our position, Your Honour.
22 JUDGE ORIE: Thank you very much, Mr. Kuzmanovic. Do you intend
23 to make submissions tomorrow in writing or would you prefer to do it
25 MR. KUZMANOVIC: I would actually prefer it in writing,
1 Your Honours, so that could have a record, obviously we'll have a record
2 on the transcript; but I think it would be more beneficial for all the
3 parties to have our position in writing.
4 JUDGE ORIE: Then, of course, the next question would be at what
5 time do you think you could finish your writing job.
6 MR. KUZMANOVIC: We hopefully -- I'll obviously supply a courtesy
7 copy when done and hopefully we'll have -- be in everyone's e-mail in the
9 JUDGE ORIE: Yes. Thank you, Mr. Kuzmanovic.
10 Mr. Cayley, the Cermak Defence reserved its position. Any need
11 to add anything or to make any submissions?
12 MR. CAYLEY: Just very briefly, Your Honour, and less than a
14 I just wanted to be clear to the Court that our silence over this
15 issue was a conscious choice. Silence is, of course, not weakness.
16 Sometimes it is the most appropriate course of action to take, and I
17 would simply remind the Court of our submission of the 26th of February,
18 in which we have simply asked the Court to admit into evidence certain
19 portions of the interview, which the Prosecution suggested for exclusion
20 but, in fact, welcomed the Defence to come back and essentially suggest
21 that it go back in. And the chart at the end of that submission, in
22 which we identify evidence, parts of the interview which are exculpatory
23 or consistent with the position of our client over the years during the
24 course of these interviews.
25 Thank you, Your Honour.
1 JUDGE ORIE: Mr. Cayley, your timing was perfect. It was
2 57 seconds, less than a minute.
3 The Chamber will further consider the matter and will await your
4 courtesy copy, Mr. Kuzmanovic; and the Chamber will try to decide as soon
5 as possible.
6 Next on my agenda is an old issue; that is D568.
7 If the Chamber understands the parties well, D568 and Appendix A
8 attached to the Prosecution's response, rely both on the same material
9 which is described to the Chamber as a thousand-page document.
10 MR. MARGETTS: Mr. President, in the compilation of Appendix A to
11 our 10 September submission, we did rely on additional material in the
12 Prosecution's possession as well.
13 JUDGE ORIE: On additional. Is that where the sentences come in
14 or is it -- what exactly did you add?
15 MR. MARGETTS: The first issue is we added five incidents to the
16 table. That's part 3 of Appendix A. And we also added further
17 description, in relation to the progress of the proceedings that wasn't
18 in D568.
19 JUDGE ORIE: No. But I'm not talking about whether it was in
20 D568 but whether it was in the material underlying D568.
21 MR. MARGETTS: Yes. Part of the information that we obtained in
22 relation to the progress of the proceedings was from additional material
23 we had. I can't, at the moment -- I can't provide an inventory to the
24 Chamber. But I could at a later date or I could this afternoon, at
1 JUDGE ORIE: Because the Chamber is facing this moment homework
2 done by the parties sometimes assisted by others; at least there's a
3 possibility that they were assisted by others, interpreting and molding,
4 restructuring, reorganising the same material more or less. To that
5 extent, of course, evidence, when the same might by the way be true to
6 some extent for D511 as well, that we are receiving a kind of a mixture
7 of factual information, interpretation of that factual information.
8 Now, the Chamber has not received and is not at this moment
9 asking for the underlying material. At the same time, if the Chamber
10 wants to admit this into evidence, the Chamber would like to be sure that
11 there is no issue about the basis of this material. I mean, if two
12 parties are working on the basis of the same material, then the Chamber
13 understands that whether that material is complete or whether that
14 material is without any mistakes, but that the parties consider it
15 sufficiently important to refer to that material as - I would say in a
16 general sense - material of sufficient reliability to start working on.
17 And this is a kind of a -- without going into the details, the Chamber,
18 of course, would like to know for sure that we are not considering to
19 receive in evidence material of a mixed nature that is combining facts
20 and restructuring it than, of course, to some extent interpreting the
21 material, limiting it, saying, This is irrelevant, saying, No, it is
22 still relevant.
23 If the parties would take a totally different view on the basis
24 the source and the origin of that material.
25 MR. MARGETTS: Mr. President --
1 JUDGE ORIE: That's the reason why I asked the question as I did
3 MR. MARGETTS: Yes, Mr. President. I think that observation is
4 fundamental to D568, appendix A that the Prosecution submits. D511 and,
5 in addition, the two charts that the Prosecution seeks to introduce
6 relating to the crime registers and the investigation of crimes --
7 JUDGE ORIE: I do see D511 is in evidence at this moment. So,
8 therefore, that doesn't have to be discussed anymore.
9 We'll later come to the two chart, which finally we received in a
10 legible version so for the first time we could really look at it. But
11 I'd like to focus on the source material or perhaps -- yes,
12 source/underlying material of D568, whether there's a disagreements
13 between the parties on that material.
14 MR. MARGETTS: Mr. President, there is no disagreement in respect
15 of the source material. The source material was provided to us by the
16 Gotovina Defence and that was a summary compiled by the state attorney's
17 office. We compared that with a summary we had obtained from the state
18 attorney's office, and we also referenced the various relevant crimes or
19 varies cited crimes in D58 with other material that we had, such as the
20 crime registers, such as criminal files, such as Prosecution and court
21 files; and we are in a position, if necessary, to provided an inventory
22 of the other sources we've used.
23 Our thinking in all of this was instead of admitting thousands of
24 pages we were -- we accepted the procedure that commenced with the
25 presentation of D511, which was, for the parties to do the work and for
1 the parties to make their submissions on the summary tables on the basis
2 of the underlying source material that they could assess for content,
3 that they could assess for reliability, and which they could then make
4 submission to the Chamber on, and then to present to the Chamber the
5 information in a manageable form, so charts that are of a limited length
6 and clearly presented, instead of an array of different sources and
8 JUDGE ORIE: Mr. Misetic, on this same matter.
9 MR. MISETIC: I just --
10 JUDGE ORIE: Underlying material.
11 MR. MISETIC: I believe there is no dispute that the underlying
12 material is authentic.
13 JUDGE ORIE: But could I -- we have two matters, the first and
14 that -- and I will give you an opportunity to further comment.
15 I asked Mr. Margetts, do you both consider the underlying
16 material reliable enough to work on, to say, because that's what we find.
17 We find a mixture of factual information and then by the way it is -- in
18 the way it is presented, of course, there's already some interpretation
19 of that material, the --
20 Now, Mr. Margetts said that he added some information. Is there
21 any dispute about the material which was at the basis of the additions?
22 The additions as we find it in Appendix A as just mentioned by
23 Mr. Margetts?
24 MR. MISETIC: There's no dispute about those documents either,
25 Mr. President. But [Overlapping speakers] ...
1 JUDGE ORIE: Now I give you an opportunity to further respond.
2 MR. MISETIC: I wish to just clarify, though, that there may be
3 some misunderstanding between the Prosecution and the Defence though
4 about what D568 is supposed to depict as opposed to what their bar table
5 is intended to depict.
6 D568 was bar tabled as a response to the interpretation of the
7 Moric order from, I believe, the 18th of August.
8 JUDGE ORIE: Yes.
9 MR. MISETIC: To that extent, the Prosecution has come back and
10 said, Well, D3568 includes matters that are not in the indictments area.
11 Our submission is that, while true, doesn't deal with the issue
12 of the Moric order, which was submitted to more police administrations;
13 and, therefore, the probative value is to see how that order was
14 interpreted not just in the indictment area, but generally speaking,
15 because it will give a probative value to the Chamber to see whether and
16 to what extent there was interpretation.
17 I'm going be a while, Mr. Margetts, so if I may finish.
18 JUDGE ORIE: Yes. Let's try to keep it orderly.
19 MR. MISETIC: So to that extent, that is why there are police
20 stations from Karlovac, et cetera, included in this exhibit.
21 With respect to the Prosecution's exhibit, they have summarised
22 information from the police log-books, so that's not in dispute. They,
23 and through the exercise of trying to compile the register of crimes
24 within the indictment area from the different police administrations
25 which are two different purposes -- maybe I see Mr. Margetts shaking his
1 head. I could be wrong. But our position is that there are different
2 layers of how a criminal charge could be filed -- that aren't limit to
3 the police stations. So to that extent I don't believe that the two
4 exhibits are meant to address the same thing although I recognise in the
5 lengthy Excel spreadsheet that there are attempts to divide up the
7 MR. MARGETTS: Mr. President, I think it would facilitate the
8 submissions of the parties if I just refer to paragraph 6 of your 10
9 September submission, and you will see that in Appendix A, we include 114
10 of the 400 entries that were in D568, only 35 of those are in the
11 indictment area. We do appreciate that this is a question generally
12 through the entire administration of the Ministry of Interior as to
13 whether or not Moric's order was observed and not only limit to the
14 geographical area of the indictment.
15 JUDGE ORIE: Let's avoid to go back to the submissions made
16 already. Of course, we've read all that, and I wonder whether there's
17 any way of even considering, since you are both more or less -- that's,
18 of course, the -- a bit of the evidentiary problem here, that it is part
19 interpretation. So you should make this selection because this response
20 to the question and then -- apparently the question to be answered is not
21 understood exactly the same way and what is the relevant for the answer
22 of that question.
23 At the same time, you apparently rely on the same factual
24 material. So, therefore, I would like to give you both one or two
25 minutes to make any submissions on having both admitted. That means that
1 we have everything considered relevant by the one party, by the other
2 party, no major disputes about the factual basis or the factual
3 background for it. So that the difference between the two mainly comes
4 down to the differences in interpretation of what should be selected in
5 order to answer this question.
6 Mr. Misetic.
7 MR. MISETIC: That's fine with me, Your Honour, the caveat that
8 we disagree with some of the interruptions made by the Prosecution
9 [Overlapping speakers] ... interpretations of the Croatian Criminal
11 JUDGE ORIE: Yes.
12 MR. MISETIC: But with that caveat, we can argue that later.
13 JUDGE ORIE: Mr. Margetts.
14 MR. MARGETTS: Yes, Mr. President, we're not opposed to the
15 admission of the material as long --
16 JUDGE ORIE: If your views are clearly visible as well.
17 MR. MARGETTS: Yes.
18 JUDGE ORIE: So the answer is then simply that with the
19 explanation that just gave that you would not oppose against admission of
20 both into evidence and then the Chamber will struggle with it. That's --
21 MR. MARGETTS: Yes, Mr. President, we would need in addition to
22 Appendix A, we would need at least Appendix B; and I'd like the
23 opportunity to consider with my colleagues the other appendices to our
24 submissions as to whether we would seek that they be admitted so that a
25 full assessment is possible [Overlapping speakers] ...
1 JUDGE ORIE: [Overlapping speakers]... yes. Of course, now it
2 was very much D568 should be replaced by Appendix A, isn't it? That was
3 the discussion mainly until now. If there's anything you would add to
4 that discussion, please do it very quickly.
5 MR. MARGETTS: Yes, Mr. President. In order to assess the
6 relevance of the entries in D568, it will be necessary for an assessment
7 to be made of the provisions of the Criminal Code because one of the --
8 JUDGE ORIE: The issue -- that's -- the issue of the provisions
9 of the Criminal Code. As a matter of fact, the Chamber would like to
10 invite the parties to see to what extent we can get proper information
11 about it, and also here we'd like to know in what respect the parties
12 disagree. I think it's your position that -- or at least one of the
13 parties I hope I'm not mixing up that clearly the 1992 Croatian Criminal
14 Code, and there is in doubt about that, but apparently this gives not a
15 satisfactory answer.
16 If the parties could agree on what we have to look at as far as
17 provisions of the Criminal Code are concerned then, of course, would be
18 preferred. Otherwise we'll go through all the version of it and see what
19 fits to what, what is theft, what is aggravated theft, we'll -- if both
20 parties are able to produce such huge documents, I hardly can imagine
21 that talented lawyers as you are, you could not agree on the Croatian
22 Criminal Code and the provisions that were meant where reference is made
23 to them.
24 MR. MISETIC: Fine, Mr. President.
25 JUDGE ORIE: Yes. Mr. Margetts.
1 MR. MARGETTS: Yes, Mr. President.
2 JUDGE ORIE: Thank you. So the chamber will receive further
3 information about that and it's now on the record that with the further
4 observations made that admission into evidence of D568 and Appendix A
5 would not be opposed by both Prosecution and Defence.
6 Earlier we discussed about remaining silent, Mr. Cayley,
7 Mr. Mikulicic, or Mr. Kuzmanovic, anything to be added.
8 MR. CAYLEY: Nothing to add, Your Honour, no thank you.
9 MR. MIKULICIC: Nothing to be added, Your Honour.
10 JUDGE ORIE: Thank you.
11 Then we move on.
12 I said before that we would revisit the issue of the crime
13 registers. Prosecution's motion to add two documents summarising
14 investigative steps taken by civilian authorities to the Prosecution
15 exhibit list and to admit these documents into evidence.
16 From -- if I'm not mistaken, the Gotovina Defence to this motion
17 is not yet received?
18 MR. MISETIC: That is correct, Mr. President.
19 JUDGE ORIE: When could we expect --
20 MR. MISETIC: Just a moment, Mr. President.
21 JUDGE ORIE: I don't know if you were provided with a legible
22 copy of this document, even a coloured one, printed on A3.
23 MR. MISETIC: Your Honour, we'll give you our position by
25 JUDGE ORIE: Orally?
1 MR. MISETIC: Yes.
2 JUDGE ORIE: During tomorrow's hearing?
3 MR. MISETIC: Yes.
4 JUDGE ORIE: Thank you.
5 There is an issue about a -- four documents not being tendered at
6 a time when Witness 43 testified. I do understand that they are now
7 submitted as bar table documents, although dealt with, I think, and
8 intended to be used with Witness 43.
9 MR. HEDARALY: Your Honour, Witness 43 was submitted through a
10 Rule 92 quater, so he didn't testify; but there was an issue -- initially
11 it was 92 bis filing and the Chamber invited the Defence to state the
12 basis for their objection to the admission of the statement where they
13 attached some of the statements to their response.
14 The Prosecution later found out that Witness 43 is now
15 unavailable to testify and refiled under 92 quater.
16 JUDGE ORIE: That's the witness where a 92 bis motion was denied
17 and then he was then --
18 MR. HEDARALY: We have found out that he had passed away in the
20 JUDGE ORIE: Yes, and the Defence opposed admission of the 92
21 quater decision.
22 Could I hear the position of the Defence on these four documents?
23 MR. MISETIC: Your Honour, I believe the first as a -- for the
24 record I believe that the witness had actually passed away before the
25 92 bis application was filed.
1 JUDGE ORIE: That could be the case. At least we were not aware.
2 I think also the Prosecution may not have been aware of the witness
3 having passed away before it filed the 92 bis submission.
4 MR. MISETIC: Okay. Again, Mr. President, just a moment.
5 MR. HEDARALY: I think, Mr. President, the issue was that it was
6 Defence documents not Prosecution documents, I think, that were at issue
7 for Witness 43 and that Prosecution's position was if --
8 JUDGE ORIE: Let me just try to ... .
9 Yes, it was Gotovina Defence bar table submission for witness 43
10 to which the Prosecution should still respond. I apologise for going in
11 the wrong direction.
12 Let me just -- the bar table submission is ... let me just have a
13 look. It newly came up.
14 I see, as a matter of fact, that the bar table submission
15 concerns -- I think concerned six documents, but two of them were already
16 in evidence. That is the special report from the Croatian Ministry of
17 Defence, which is Exhibit D178; (redacted)
18 (redacted) that was -- I'm afraid that ...
19 [Trial Chamber and registrar confer]
20 MR. KUZMANOVIC: Your Honour, your microphone is on.
21 JUDGE ORIE: I have a list of six: D178 is already in evidence;
22 P1397 is already in evidence; what then remains is 1D00-0847; next one,
23 1D00-0869; 1D00-0872; and 1D00-0882.
24 I think I'm now working on the wrong -- the proper direction
25 again, Mr. Misetic.
1 Is there any objection against -- yes, Mr. Misetic.
2 MR. MISETIC: I just wish to be clear here, as I understand the
3 procedural state - and I could be wrong - there is an pending Rule 92
4 quater motion. There has been a response by us opposing.
5 Last housekeeping session, Mr. President, you invited me if we
6 wished to bar table something, so it should be qualified that our bar
7 table is contingent upon your ruling on whether the statement is coming
8 in through Rule 92 quater.
9 MR. HEDARALY: And similarly any statement of new objection of
10 the Prosecution for these documents would be contingent on the statement
11 being admitted into evidence.
12 JUDGE ORIE: Yes, that is clear, but then there would be no
14 MR. HEDARALY: That is correct, Your Honour.
15 JUDGE ORIE: That is on the record. So if the 92 quater
16 statement will be admitted into evidence, and I think the parties will
17 know that by tomorrow.
18 MR. HEDARALY: There was one issue, and I'm going from memory
19 here so I apologise if I'm mistaken. Some of the documents because they
20 were only for the purpose of the opposition had only been partially
21 translated some witness statements so -- if they are into evidence we
22 would obviously we would like to have the full translation because it
23 would be part of evidence now not just in opposition. But that's just
24 from my memory. But if they are into evidence we obviously want full
1 JUDGE ORIE: That was one document where consisting of four pages
2 where two were translated, only pages one and four.
3 Thank you. That's on the record, so the Chamber is in the
4 position to decide all the issues here.
5 Then we have ten minutes left only, and I would like to start
6 already with the MFI
7 this respect. We'll then --
8 MR. HEDARALY: Your Honour, there's an also housekeeping issue.
9 Since it is not on the MFI
10 can deal with first but we have e complete list. That's the Rajcic bar
11 table motion. There are no numbers assigned to that. We can do that
12 tomorrow as well, but since there were no numbers assigned perhaps it
13 would be prudent to do that first. But I leave it to the Chamber.
14 JUDGE ORIE: It appears on -- all of the them do appear on my MFI
15 list. I don't know whether, on the latest version, the ...
16 [Trial Chamber and legal officer confer]
17 JUDGE ORIE: I was just informed that it came in, in morning and
18 sometimes and in court I'm not able to look what comes in.
19 They will be provisionally assigned exhibit numbers. I've got no
20 idea what it is at this moment, but then at least they're on our list to
21 further be looked into tomorrow. I would not be surprised if the Defence
22 would jump up and say it's rather late. Although I do understand that it
23 was rather early. We'll have that.
24 The registrar is asked to assign provisional numbers to those
25 documents and then we will, unless there is any other matter we should
1 deal with before continuing with the MFI list.
2 The first one appearing is D568. We have extensively dealt with
4 The next one, Mr. Mikulicic, D1083. If there's still no
5 translation --
6 MR. MIKULICIC: Your Honour, unfortunately, there is it still no
7 translation. Mr. Waespi and have I been exchanged a rather amount of
8 communication. I just can remind the Chamber that we started with this
9 issue on 28th of November last year, so it has been a long time passed
10 on. But I believe we are going to have a translation very soon.
11 But --
12 JUDGE ORIE: If you would need the Chamber's assistance and the
13 Chamber appreciated the hard work and the difficulties CLSS may have in
14 giving priority to one or another document, at the same time we're now at
15 a point where the Prosecution's case is close to being concluded. So,
16 therefore, the Chamber would offer its assistance. But, again, not as a
17 form of criticism but as a way of smoothing the path to -- to conclusions
18 of the Prosecution's case.
19 MR. MIKULICIC: Yes. I -- I think I could say on behalf of
20 Mr. Waespi we are grateful, Your Honour, and we will ask for your
21 assistance, if that would be need in the near future.
22 Thank you very much.
23 JUDGE ORIE: Thank you.
24 Then we move on.
25 I will read tomorrow a brief decision on D1212.
1 I then come to D1302. This is a table created by the
2 Cermak Defence, analysing Annex 1 of the CHC report. I think the
3 issue -- there were two issues. The first one was the verification of
4 the content.
5 Has this been done, Mr. Russo?
6 MR. RUSSO: Mr. President, with respect to D1302, all the way
7 through D1305, we have no objection to those on the previously stated
8 bases now.
9 JUDGE ORIE: Then the problems with the titles have been resolved
10 as well.
11 MR. RUSSO: That's correct Mr. President.
12 JUDGE ORIE: D1302, up to and including D1305, are admitted into
14 Then we are at D1307, statement of Petar Pasic. Prosecution has
15 taken the position that it should only admit it as to those portions on
16 which the witness gave some evidence and not the statement in its
18 Now, I'd like to further hear from the parties whether there have
19 been further exchanges, whether there's any agreement on the matter,
20 or ...
21 MR. RUSSO: Mr. President, our position remains the same, with
22 respect to that exhibit, that, as to those portions not discussed, that
23 the statement has to remain marked for identification until the witness
24 comes and fulfils the requirements of 92 ter.
25 MR. CAYLEY: We can accept that position, Your Honour.
1 JUDGE ORIE: Which would mean that, if the Cermak Defence seeks
2 this to be in evidence, that they'll first wait whether there's a Defence
3 case at all; and if there is an Defence case, that then they would call
4 the witness. Is that --
5 MR. CAYLEY: Correct, Your Honour. I think that is the best way
6 of putting it, yes.
7 JUDGE ORIE: Then, D1307 is vacated that's at least, Mr. Cayley,
8 it can be vacated. It is not tendered anymore into evidence.
9 Then we come to D1331. That is the letter sent by the public
10 prosecutor's office to the law firm of Mikulicic. Mr. Mikulicic, I think
11 the only thing is the decision of the Chamber.
12 MR. MIKULICIC: Yes, Your Honour.
13 JUDGE ORIE: Yes. Admission of D1331 is denied. It's not
15 The next one is D1429. There may be -- there are two issues here
16 first. First, is that no dock ID number was assigned at the time that
17 this document was tendered. That's the first issue. And the second
18 issue might that be the transcript reads that the Prosecution objected,
19 objection. But since it usually explained why and here it is not, there
20 is an reason to believe that the intention was to say no objection.
21 MR. RUSSO: That's correct Mr. President.
22 JUDGE ORIE: Has a dock ID been assigned Mr. Kehoe?
23 MR. KEHOE: Yes, Mr. President.
24 JUDGE ORIE: It has been uploaded?
25 MR. KEHOE: It has.
1 JUDGE ORIE: Then D1429 is admitted into evidence.
2 D1434. What was still needed is that the Chamber would decide on
3 mission. The Chamber denies admission into evidence of D1434.
4 Therefore, it gets the status of non-admitted.
5 D1439 has been litigated and is waiting for a decision by the
6 Chamber. D1439 is admitted into evidence.
7 We now come to a long list of prints. I think it would be unwise
8 to start with it at 16 minutes before 2.00.
9 Mr. Hedaraly.
10 MR. HEDARALY: Regarding D1439, the Chamber, on the record had
11 stated that at that time there had been no sufficient basis presented for
12 the admission, so I'm just wondering if we'll get reasons on what had
13 changed during that statement by the Chamber on the record and today's
14 decision, just so that --
15 JUDGE ORIE: We'll check the record and provide you with short
16 reasons as soon as possible, most likely tomorrow.
17 MR. HEDARALY: Thank you.
18 MR. MISETIC: Mr. President.
19 JUDGE ORIE: Yes.
20 MR. MISETIC: Could I inquire because of my own personal schedule
21 how long do we intend to sit all day tomorrow.
22 JUDGE ORIE: Much depends on --
23 MR. MISETIC: On us.
24 JUDGE ORIE: The MFI
25 perhaps another hour, that's -- then I have to read a few short
1 decisions, admission into evidence, which will take perhaps some 10 to 15
2 minutes. We have six of them, more lengthy decisions, that will take
3 another half an hour. I think that approximately two and a half hours
4 all together would be needed tomorrow. That's my first assessment. But,
5 at the same time, on some matters we have even received the submissions
6 so, therefore, it is very difficult to assess whether that would create a
7 need for any further questions to the parties. For example, I do not
8 know to what extent the Appendixes B and C to the response to 568 will
9 create additional -- additional problems.
10 MR. MISETIC: I just wish to remind the Court, as I advised you
11 last week, I'm supposed to be in a different proceeding tomorrow, but I
12 will see what I can do with it.
13 JUDGE ORIE: Yes. If you please try to -- it is not for that
14 reason that we said that as you are aware of now that we didn't ask for
15 the Prosecution to prepare for witnesses. But -- tried to the extent
16 possible to pass this on to your learned colleagues, and I know it is not
17 easy sometimes.
18 MR. MISETIC: It's a judge, and if I could get a note from my
19 judge; so I can pass to the other judge. I'm just kidding. So, yes, I
20 will try to pass that on.
21 JUDGE ORIE: Yes. Of course, the problem is, of course, we would
22 have time on Thursday and Friday as well, but we are at a point where we
23 would like to have the Prosecution's case concluded, so that we can
24 proceed and that's the only reason why it is a bit difficult to
25 accommodate you. If you have any priority. If you say tomorrow this or
1 this issue, I'd like it deal with first and let's leave all the other
2 stuff to -- to one of your colleagues that, of course, we would consider
3 that. But then please inform us as soon as possible.
4 MR. MISETIC: Thank you, Mr. President.
5 JUDGE ORIE: Mr. Cayley.
6 MR. CAYLEY: Very briefly, Your Honour just so that we can
7 advance things quickly tomorrow; for the next three exhibits, the
8 Prosecution Exhibits. That's P01050, P01051, and P01057; that was the
9 subject of oral submissions, which Your Honours will find at transcript
10 reference 11444. No decision was made but you may well be aware of that
11 already, but your staff might be able to give you that, and we with move
12 quickly through those tomorrow morning.
13 JUDGE ORIE: Yes. Thank you for this observation. We will
14 adjourn for the day, but not until after I have expressed my admiration
15 for transcribing so many numbers, and it's not the first time, and so
17 We will resume tomorrow, Wednesday, 4th of March, 9.00,
18 Courtroom I.
19 --- Whereupon the hearing adjourned at 1.49 p.m.
20 to be reconvened on Wednesday, the 4th day of
21 March, 2009, at 9.00 a.m.