1 Friday, 25 September 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.04 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.
9 This is case number IT-06-90-T, the Prosecutor versus
10 Ante Gotovina et al.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 Mr. Russo, the Chamber was informed you would like to address the
13 Chamber in the absence of the witness.
14 MR. RUSSO: Yes, thank you, Mr. President, and good morning.
15 Two issues. Number one, I have two documents that I intend to
16 use with the witness, which we've just put together this morning. I've
17 provided hard copies to the Trial Chamber and to Defence counsel. We're
18 attempting to put those into e-court right now. If not, we may use them
19 via Sanction. However, I do also have hard copies for the witness, but I
20 didn't want there to be any confusion when I started using these
22 The second issue relates to the CD of The Blue Book that we
23 received yesterday. I'm not sure if this is an oversight, but the CD we
24 received does not contain the organigrams which are found within the
25 book. The organigrams are actually fold-out pages in the physical book,
1 itself, but those organigrams are not contained on the CD that we
2 received. I don't know if we can receive those separately or what the
3 issue is there, but I wanted to advise the Court.
4 JUDGE ORIE: Yes. Well, the blue books -- The Blue Book comes
5 from the Markac Defence.
6 Mr. Mikulicic, any comment on --
7 MR. MIKULICIC: Well, to be honest, Your Honour, I'm not aware of
8 what is on CD or what is not on CD. We just copied the CD that we
9 received with The Blue Book. So the organigrams that my learned
10 colleague is talking about is composed within The Blue Book, so there's
11 the opportunity to scan them and then to make a copy of it. So that's
12 all I can say. I have no explanation whether they are included in the CD
13 or they are not included.
14 JUDGE ORIE: Yes, I see it that can be scanned. However, another
15 issue arose, more or less, in relation to these organigrams, these
17 Mr. Russo, Mr. Mikulicic gave you what he received.
18 MR. RUSSO: That's fine, Mr. President, if that's -- I just
19 wasn't sure if they are not included by accident. But if that's the form
20 in which he received them, we don't have any issue.
21 JUDGE ORIE: Thank you.
22 The other matter is the use of certain documents which are
23 provided in hard copy to the Chamber, apparently do not raise any further
24 need for submissions.
25 Since the witness is not in, I'd briefly like to deal with
1 another matter. In relation to the statement of Witness AG-10, which is
2 a 92 bis statement, some time was left to the Gotovina Defence to ask for
3 protective measures. We have not received any request until now.
4 Mr. Misetic, does that mean that there will be no request?
5 MR. MISETIC: No, Mr. President. As I understand it -- just one
7 [Defence counsel confer]
8 MR. MISETIC: Mr. President, as I understand it, we will make the
9 formal motion because the witness, in his 92 bis declaration, asked for
10 them. I have not been in contact with the witness to ask for his
11 reasons, but there is a request from the witness, himself, for these
13 JUDGE ORIE: Yes, but that, of course, has to be formalised in
14 one way or the other. We can't go to the witness and ask him what the
15 reasons were. How much time would you need for that, because the matter
16 is pending already -- no, it's pending since 16th of September. The
17 decision was filed in which the statement was admitted into evidence, and
18 in that same decision we have invited the Gotovina Defence to request
19 protective measures within seven days, and that was 23rd or the day
20 before yesterday.
21 MR. MISETIC: Yes, Mr. President, I apologise for that. I hope
22 to get you an answer today.
23 JUDGE ORIE: Yes. Could we at least -- whatever the outcome is
24 here, not any later than the 28th. That is next Monday.
25 MR. MISETIC: Yes. Thank you.
1 JUDGE ORIE: Thank you. Then we can ask Mr. Usher to escort the
2 witness into the courtroom.
3 [The witness entered court]
4 WITNESS: PERO KOVACEVIC [Resumed]
5 [The witness answered through interpreter]
6 JUDGE ORIE: Good morning, Mr. Kovacevic. First of all, our
7 apologies for inviting you into the courtroom --
8 THE WITNESS: [Interpretation] Good morning.
9 JUDGE ORIE: -- and then to ask you to leave again. Our
10 apologies for that.
11 I would like to remind you that the solemn declaration you gave
12 yesterday, at the beginning of your testimony, still binds you. And
13 Mr. Misetic will now continue his cross-examination.
14 Mr. Misetic.
15 Cross-examination by Mr. Misetic: [Continued]
16 MR. MISETIC: Thank you, Mr. President.
17 Q. Good morning, again, Mr. Kovacevic.
18 A. Good morning.
19 Q. Turning your attention back to paragraph 5.1.7 of your report,
20 and we left off on this topic yesterday, I wanted to get a more specific
21 explanation from you.
22 Back when the 1994 rules were promulgated, was there a concern
23 about the military police conducting investigations of the army while
24 under the command of HV commanders?
25 A. That was one of the reasons why the military police was withdrawn
1 from the system of the military forces and the subordination of the
2 military forces. Any punishable act which constituted a crime would have
3 been processed, and we know that a commander can influence the military
4 police if that military police is under that commander, when it comes to
5 prosecuting certain acts.
6 MR. MISETIC: Thank you very much, Mr. Kovacevic.
7 I have no further questions, Mr. President.
8 JUDGE ORIE: Thank you, Mr. Misetic.
9 THE WITNESS: [Interpretation] Thank you.
10 JUDGE ORIE: Mr. Russo, are you ready to cross-examine
11 Mr. Kovacevic?
12 MR. RUSSO: Yes, Mr. President, thank you.
13 JUDGE ORIE: Mr. Kovacevic, you'll now be cross-examined by
14 Mr. Russo. Mr. Russo is counsel for the Prosecution.
15 Please proceed, Mr. Russo.
16 MR. RUSSO: Thank you, Mr. President.
17 Cross-examination by Mr. Russo:
18 Q. Good morning, Mr. Kovacevic.
19 A. Good morning.
20 Q. Mr. Kovacevic, in section 0.2.1 of your report, you indicate that
21 your main objective is to present your report in a neutral and objective
22 manner. Now, you've made a number of public statements regarding this
23 case which I would like to take a look at, at this moment, and which I'm
24 going to suggest to you demonstrate that, in fact, you're neither neutral
25 nor objective with respect to this case.
1 If we could begin, please, with 65 ter 7414.
2 Mr. Kovacevic, the article which is now on the screen is an
3 article which purports to be written by you concerning the Croatian
4 government's response to the indictments in this case. It's published on
5 the 12th of April, 2007. Do you recall this article?
6 A. I did not write the article. It must have been a journalist.
7 And my report is professional and doesn't contain either political or my
8 personal views. At that time, I was an MP in the Croatian Parliament,
9 which means that I was also a politician. However, it is true that I
10 urged the government to establish the Croatian Memorial Centre as a body
11 that would collect documents from the homeland war and provide it to
12 anybody who might be interested in it, which means that you also would
13 have had an easier job if this had been done earlier.
14 MR. RUSSO: If we can move to the last page of this document,
16 Q. Mr. Kovacevic, you can see, at the end of the article, it's, in
17 fact, attributed as being signed by you. Is it your position that you
18 did not write this article?
19 A. Just a moment. Please bear with me. I'd like to look at the
20 first part of the article.
21 I don't know if this is the column that I published or whether
22 this is an article written by a journalist, because I also at one point
23 wrote columns for newspapers.
24 MR. RUSSO: Perhaps we can move back to the first page of the
25 document and we'll have you just take a look at it.
1 THE WITNESS: [Interpretation] Yes, if you could. Thank you.
2 Yes, this is a column that I wrote.
3 MR. RUSSO:
4 Q. Thank you. Now, in the second paragraph of the article, if we
5 could focus on that, you write:
6 "The indictments are not only directed against the generals, but
7 also against Croatia
8 Now, Mr. Kovacevic, I will put it to you that you drafted the
9 expert report that you submitted not for the purpose of providing a
10 neutral and objective opinion, but, in fact, to undermine the indictments
11 which you perceived to be an attack upon Croatia, itself. Is that an
12 accurate statement?
13 A. No, that's not correct. I'm a professional. These are political
14 statements which supported my political struggle in the Parliament. And
15 as my report goes, I drafted it as a professional, familiar with the
16 regulations, and I always make a distinction between my political and
17 personal views and my professional views. When I write a report, I base
18 the report on my professional views, which you can easily conclude,
19 yourself, when you read the report.
20 Q. In the first paragraph of the article, the second sentence, you
22 "The Croatian Party of Rights (HSP) has issued warnings and drawn
23 the government's attention to the commitment to take a series of legal,
24 political, and diplomatic measures to bring down the monstrous Hague
1 Now, the Croatian Party of Rights, the HSPs, is your political
2 party; correct?
3 A. Former -- that's my former political party. Since 2008, I have
4 not been a member of that party because I did not agree with the
5 non-democratic decision-making process in the party.
6 Q. Thank you, and my apologies for that. And I'll suggest to you,
7 Mr. Kovacevic, that your report and your testimony here today are, in
8 fact, a continuation of these legal, political, and diplomatic measures
9 to bring down the indictments. How do you respond to that?
10 A. My report is a professional report based on the regulations that
11 I drafted, and in my professional report there is not a single political
12 statement. It doesn't contain any of my personal views vis-a-vis
13 anything. As I've already told you, I am a professional when it comes to
14 drafting such reports.
15 Q. Looking at the third paragraph, Mr. Kovacevic, you write:
16 "We expressed this viewpoint several times, both in our written
17 initiatives and during Parliament debates, the purpose of which was to
18 commit the government to take legal, diplomatic, political, and other
19 measures. Does the public know that the archive and registry material
20 created in the homeland war has not been put in order to this day, for
21 the purpose of promoting the truth about the homeland war, what all the
22 obstacles are that were put before the indicted generals before they
23 could get the documents they sought, and that the generals were forced to
24 buy the necessary documents for their defence on the black market."
25 Mr. Kovacevic, I want to talk about the generals purchasing
1 documents for their defence on the black market. Now, first, can you
2 tell us what exactly this black market is and how it works.
3 A. I have never operated on the black market. I'm a lawyer.
4 However, as an MP in the Croatian Parliament, I learned that
5 General Praljak, for example, was forced to buy the document that he was
6 missing on the black market because the state had not established a
7 documentation centre, it had not put in order all the documents, which
8 every state is obliged to do under the law on archives. Every state has
9 to have documentation in place. And I am only happy that I finally
10 succeeded in my initiative.
11 You know that every state works in the same way. They have
12 political and legal measures in place, and the legal thing that I asked
13 for was for Croatia
14 is helping the Tribunal, the government, and the fact that the Government
15 of Croatia
16 political and legal measures, and the opposition is the one that
17 pin-points all the government's shortcomings and omissions in order to
18 gain popularity with the general public. Every opposition in every
19 corner of the world acts the same.
20 Q. I appreciate your answer, Mr. Kovacevic, but I'd like to focus,
21 in particular, about the black market. Now, you state --
22 JUDGE ORIE: Mr. Russo, I had some difficulties in understanding
23 at least one line of that last answer.
24 You said:
25 "They have political and legal measures in place, and the legal
1 thing that I asked for was for Croatia
2 Tribunal, and that is helping the Tribunal, the government, and the fact
3 that the Government of Croatia is the amicus of the Tribunal."
4 Now, what's -- you said "the legal thing." What's exactly "the
5 legal thing," and does that mean that you positively appreciate the
6 cooperation by the Croatian Government with this Tribunal?
7 THE WITNESS: [Interpretation] When it comes to the cooperation,
8 it can be evaluated by the Tribunal, itself. On several occasions, this
9 cooperation has been evaluated positively. And as far as legal measures
10 are concerned, the measure in question is the one according to which a
11 state may be asked for the status of an amicus of the Tribunal.
12 JUDGE ORIE: Yes, but I asked whether you positively appreciated
13 that, because that seems, although not very clear to me, part --
14 THE WITNESS: [Interpretation] Yes, yes, of course I see it as a
15 positive development. This cooperation is in keeping with the
16 constitutional law, and it is a positive development, yes.
17 JUDGE ORIE: Yes. Nevertheless, in the article you write:
18 "... a clumsy and forced attempt to obtain the status of the
19 Tribunal's friend."
20 That doesn't sound very much positive, as far as your
21 appreciation is concerned, but correct me when I understand this wrong.
22 THE WITNESS: [Interpretation] What I'm saying here is that the
23 legal measures that the government put in place was not something that
24 was done in due course and in keeping with the Rules of the work of the
25 Tribunal, its Statute, and other documents. It was a belated attempt.
1 The council that was supposed to deal with the matters and Croatia
2 becoming a friend of the Tribunal, was established rather late, and
4 JUDGE ORIE: And from what I understand from the article - but
5 please, again, correct me when I'm reading it wrongly - at the expense of
6 the defence of accused persons?
7 THE WITNESS: [Interpretation] If there is no documentation and
8 archives in order, in different collections, obviously this is at the
9 expense of the Defence, because the Defence teams cannot obtain documents
10 that they need and that they deem necessary for their case, and the state
11 is the one that is to blame for that. The archives are still being put
12 in order. It was only in 2005 when the documentation centre was formally
14 JUDGE ORIE: Please proceed, Mr. Russo.
15 MR. RUSSO: Thank you, Mr. President.
16 Q. Mr. Kovacevic, we're going to come back to the issue of
17 cooperation with the Tribunal, but I want to concentrate for the moment
18 on the black market.
19 Now, you indicated that you had heard that General Praljak had to
20 obtain documents on the black market. Now, I'd like to learn, first of
21 all, how you came by that information and the full content of the
22 information you came upon regarding this black market.
23 A. One could come across such information in the media. I don't
24 know by which channels I actually received that. Maybe there was a
25 letter of someone who wrote things like that. In any case, I simply used
1 that to further my argument to show that there is yet another reason to
2 establish the documentation memorial centre that I was insisting upon.
3 Q. Did you come across any information that either
4 Generals Gotovina, Cermak, or Markac have received documents from the
5 black market?
6 A. No, I have no knowledge in that regard.
7 Q. Are you in a position to positively confirm that any of the
8 documentation you reviewed in your analysis was not obtained off this
9 black market?
10 A. All of the documents I reviewed bear either the stamp of the
11 Prosecution, or they have already been made exhibits, or they can be
12 found on the Defence list of General Cermak for tendering.
13 MR. RUSSO: Thank you.
14 Mr. President, I move for the admission of 65 ter 7414.
15 MR. KAY: No objection, Your Honour.
16 JUDGE ORIE: Mr. Registrar.
17 THE REGISTRAR: Your Honours, that will become Exhibit P2635.
18 JUDGE ORIE: P2635 is admitted into evidence.
19 MR. RUSSO: Thank you, Mr. President.
20 If we could now please have 65 ter 7412.
21 Q. Mr. Kovacevic, what you see on your screen is an article in the
22 same publication, dated 1 October 2007
23 political party to bring a referendum on discontinuing cooperation with
24 the ICTY. Are you familiar with this article?
25 A. This is an article about the initiative to launch a referendum on
1 any further cooperation with The Hague Tribunal. This was part of my
2 political activities as an MP and, at the time, member of the HSP Party.
3 This was a result of the great dissatisfaction across Croatia concerning
4 the judgement that was pronounced to the Vukovar Three. This is nothing
5 to do with my expert report. My expert report is a professional piece of
6 work which does not contain any of my personal or political views.
7 Q. The article begins:
8 "Today we will surpass the number of 100.000 signatures for the
9 petition to hold a referendum about the further cooperation with
10 The Hague
11 says HSP
12 "After the verdict against the war criminals
13 Veselin Sljivancanin, Miroslav Radic, and Mile Mrksic, the cessation of
14 cooperation with The Hague
15 order to be tried in Croatia
17 Kovacevic in an interview for Index."
18 Now, Mr. Kovacevic, can you explain why you believed terminating
19 cooperation between Croatia
21 A. First of all, this was undertaken by my former party in 2007, in
22 October, during the election campaign for the Parliament in Croatia.
23 These are purely political activities by the party, and I was a member of
24 that party at the time. I participated in those political activities.
25 But this has absolutely nothing to do with the expert report I produced.
1 This is in the sphere of my political activity alone.
2 Q. Mr. Kovacevic, the truth is that you wanted to end cooperation
3 between Croatia
4 over evidence which could establish the allegations in this indictment;
5 isn't that correct?
6 A. No, it is not. This is a political statement. Croatia is a
7 member state of the UN. This Tribunal was created by virtue of a
8 UN Security Council resolution. Croatia is a full member. On behalf of
9 the Croatian government, I did actually participate in the drafting of a
10 letter putting forth the initiative to establish this Court in the first
12 Q. Mr. Kovacevic, I'm going to suggest to you that contrary to the
13 distinction you are attempting to draw between your political -- or your
14 actions as a politician and your work as an expert in this case, that, in
15 fact, your failed attempts to dissolve official cooperation between the
16 Government of Croatia
17 testimony you're giving here today, are simply part of the legal,
18 political, diplomatic, and other measures which you say your party has
19 pursued, and I'm suggesting to you that those are pursued to undermine
20 the indictment in this case.
21 A. First of all, that is incorrect. As I have already said, I am no
22 longer a member of the Croatian Party of Rights. Everyone within the
23 domain of his or her profession should distinguish between his or her
24 political and professional activities. This expert report is
25 professional. If a baker says something that you find politically
1 incorrect, you're not going to say that his bread is bad.
2 MR. RUSSO: Fair enough, Mr. Kovacevic.
3 Mr. President, I'd move for the admission of 65 ter 7412.
4 MR. KAY: No objection, Your Honour.
5 JUDGE ORIE: Mr. Registrar.
6 THE REGISTRAR: Your Honours, that will be Exhibit P2636.
7 JUDGE ORIE: P2636 is admitted into evidence.
8 MR. RUSSO: Thank you, Mr. President.
9 If we could have a look at one more article. That is 65 ter
11 Q. And before we move to this, let me just ask you a separate
12 question, Mr. Kovacevic. As a former member of Parliament, can you
13 explain to this Trial Chamber what happens if a parliamentary member lies
14 to the Parliament? Are there official sanctions for that? Tell us what
15 happens in that event.
16 A. For everything uttered in the Parliament, such an MP enjoys
17 immunity, according to the Constitution of the Republic of Croatia
18 the Rules of Procedure of the Croatian Parliament. A parliament is a
19 political forum. That's a clear thing. It goes without saying. Any
20 opposition parliamentary party is striving to point out the shortcomings
21 and use any possible opportunity to attack those currently in power.
22 Congressmen and senators are politicians, much as parliamentarians, but
23 one, as I said, should always distinguish between one's professional and
24 political activity, and in such situations, it cannot happen that one
25 mixes up the two things, the political and professional sphere. You also
1 know that there were statements of Sir Geoffrey Nice and the former
2 spokeswoman of the Prosecution, and the Prosecutor, herself, and such
3 statements frequently contained political points. This is simply a
4 matter of policy. But a legal domain is one, the professional another.
5 Q. Thank you, Mr. Kovacevic. Looking at the article on the screen,
6 this is an article dated 26 February 2008
7 I'm sorry, if we could actually move to the next page in both
8 B/C/S and English.
9 This article is dated the 26th of February, 2008, regarding the
10 indictment in this case. If we could actually move to page 3 in the
11 English and stay on page 2 in the B/C/S, and focus on the bottom on the
12 page of B/C/S. And towards the bottom of the page in English, where it
13 begins: "Kovacevic ..."
14 Mr. Kovacevic, the following is attributed to you in this
16 "Pero Kovacevic of HSPs -- HSP's Croatian Party of Rights,
17 emphasizes that so far the indictment has been generalised, so the OTP is
18 tidying it up now. However, he considers this way a half-crazy attempt
19 of the OTP to justify itself. They want to accuse Markac, Cermak, and
20 Gotovina of absolutely everything."
21 MR. MISETIC: Mr. President, I can't find this on the screen.
22 JUDGE ORIE: I have it on my screen, but --
23 MR. RUSSO: I'm sorry. If we can move up a bit in the English.
24 JUDGE ORIE: Yes. I'm using my e-court screen rather than the --
25 MR. RUSSO: My apologies. I directed the Registrar to the wrong
1 portion of the page.
2 JUDGE ORIE: Yes.
3 MR. RUSSO: "They want to accuse Markac, Cermak, and Gotovina of
4 absolutely everything. Even of something that does not exist in the
5 national legislature. You cannot accuse the three of them of something
6 for which some civilians or servicemen should be responsible, emphasizes
8 JUDGE ORIE: Mr. --
9 MR. MISETIC: For the benefit of our clients, if we could turn
10 the page in the B/C/S.
11 MR. RUSSO: And my apologies.
12 "The Defence, given that it is the real one, Kovacevic believes,
13 does not have a hard task because the defendants cannot be proven 'the
14 interference in someone else's work.'
15 "In a part of the investigation, none of these three men has
16 anything to do with anything. They could not do the job of military and
17 civil police. Only if they had done that, only then they would have done
18 something illegal, emphasizes Kovacevic."
19 Q. Mr. Kovacevic, do you recall making these statements at the time?
20 A. This is not an authorised statement. Perhaps if I received a
21 phone call, I don't know whether I said so word for word. I never
22 verified it. Secondly, this is yet another political statement. I have
23 already told you that I frequently gave political statements as a
24 Croatian MP.
25 Q. And just to be clear, although you indicate that it's not an
1 authorised statement, do these statements which are attributed to you
2 accurately reflect your beliefs at the time?
3 A. No, you're asking me one thing, and I'm talking about the
4 statements which are of political nature. I hope you understand. We are
5 here today to discuss my report, which is a professional one. This is
6 all the difference. There is an important difference between you, as a
7 person, giving a political statement and you, as a professional,
8 producing an expert report.
9 JUDGE ORIE: Mr. Kovacevic, may I invite you to answer the
10 questions, even though you consider that we are limited to discussing
11 your report. The Prosecution is entitled to draw the attention of the
12 Chamber to public statements you made earlier. So the last question,
13 which you have not answered yet, is whether this publication reflects,
14 although as you said, political views you held at the time it was
15 published or whether it does not reflect your views at the time. Again,
16 I do understand political views, or at least views expressed in a
17 political environment, in a political context.
18 THE WITNESS: [Interpretation] That was the policy of my former
19 party. And as a party official, I was tasked with stating those.
20 JUDGE ORIE: Yes. But if you disagreed with that, would you have
21 asked your party to ask someone else to express some things you disagreed
23 THE WITNESS: [Interpretation] It just so happened that I left the
24 party after that. It wasn't just this situation, but there was several.
25 JUDGE ORIE: Yes, but you said, That was the view of my party.
1 Did you disagree with it? You disagreed with what you were asked to tell
2 the public on behalf of the party; is that how I have to understand your
4 THE WITNESS: [Interpretation] Yes, you should understand it that
5 way. As a lawyer, supporting the rule of law, I was in favour with the
6 constitutional law on cooperation between Croatia and the ICTY. The
7 government needs to abide by that law. We are also bound by the
8 Security Council resolution as a UN member. We have obligations that we
9 have to implement as a state.
10 JUDGE ORIE: Yes, but these last statements are not about
11 cooperation, are they? They are about whether the indictment -- let me
12 just check again. There's nothing about cooperation in the last portion
13 that was put to you. It's just about your criticism on the indictment
14 and that it could never be proven, which is -- has got nothing to do with
15 a duty to cooperate, does it?
16 THE WITNESS: [Interpretation] I'd say yes and no, depending on
17 your angle, but it's a simple matter, really. This is a political
18 statement, and the indictment was being amended at the time, and I'm not
19 even sure it's final yet. If something is being amended in the process,
20 it must mean that there was something missing. In any case, this is a
21 political statement.
22 JUDGE ORIE: Yes, but let's try to get an answer to the questions
23 that are put to you.
24 You say, I disagree with what I was supposed to say on behalf of
25 the party. And then you explained that you left the party and that you,
1 as a lawyer, couldn't support anything else than cooperation, which is a
2 duty for the state of Croatia
3 this one, deals with cooperation. It deals with your assessments of
4 whether the indictment can be proven, whether it's a good or a bad
5 indictment, whether these three men has anything to do with anything. It
6 is a statement which has got nothing to do with the duty of Croatia to
7 cooperate with the Tribunal. It's just your personal assessment of
8 whether this indictment is a good one, whether it can be proven or not,
9 and whether the accused have anything to do with what is found in the
10 indictment, and who would be responsible. That's -- for me, it's
11 difficult to understand why you say, I disagree with that because I find
12 that we have to cooperate, as a state, with the Tribunal. So, therefore,
13 could you try to explain to me how I have to understand your last
15 THE WITNESS: [Interpretation] In the part concerning the
16 indictment, this was a political statement of mine at the time, based on
17 what was being broached in the Croatian media as to the way the
18 indictment was put together.
19 JUDGE ORIE: Now, let me then stop you there. You said, This is
20 what I had to say on behalf of the party. I asked you whether you
21 disagreed or not, whether this was your, though, political view at the
23 THE WITNESS: [Interpretation] My political view of the indictment
24 was the way I stated here. It was widely believed that it was
25 incomplete. I could not address the legal side of it because I did not
1 have all the required information. I could only comment on what one
2 could come across in the headings.
3 JUDGE ORIE: Yes. Now, in one of your earlier answers, you said
4 you disagreed, and you explained why. And now, two or three questions
5 later, you say, No, that was my political view at the time. I'm a bit
6 confused about hearing one answer at one moment. And I'm referring the
7 parties to page 19 -- my question starting on page 18, line 25, and the
8 answer starting on page 19, line 4, and the answer you just gave. If you
9 want to further explain, please do so, and otherwise I'll ask Mr. Russo
10 to proceed.
11 THE WITNESS: [Interpretation] Precisely, we misunderstand each
12 other. The first part of the answer had to do with the suspension of
13 cooperation with The Hague Tribunal in relation to the petition and
14 referendum. As a lawyer, I said that it was a clear thing that Croatia
15 needs to fulfill its obligations which it had undertaken. The latter
16 part concerns the Croatian media of -- and their reports of the
17 indictment and its process of amending. These were two separate things,
18 and I don't think they contradict each other.
19 JUDGE ORIE: Please proceed, Mr. Russo.
20 MR. RUSSO: Thank you, Mr. President.
21 Q. Now, Mr. Kovacevic, you draw a distinction between the statements
22 you made in this article and the opinions expressed in your report.
23 However, the last part of this article which I read, which is -- I'll
24 quote again:
25 "In a part of the investigation, none of these three men has
1 anything to do with anything, they could not do the job of military and
2 civil police. Only if they had done that, only then they would have done
3 something illegal ..."
4 Now, aren't these the same opinions that are expressed in your
5 report, specifically that addressing crime was not the responsibility of
6 the HV commanders; that it was the responsibility of the military and
7 civil police? Aren't those the same opinions?
8 A. In that part, I said something that belonged in the professional
9 domain, since I drafted the Law on Defence, the Law on the Service in the
10 Armed Forces, as well as different regulations about the structure of the
11 military police and the police. I spoke in legal terms, in terms of
12 subordination and the duties of superiors, as well as the obligations
13 that the two types of police had under the Croatian legislation.
14 Q. Mr. Kovacevic, you made these statements and expressed those
15 opinions in February of 2008, which is before the trial in this matter
16 began, before the Prosecution had presented any evidence in support of
17 its indictment. And I'll suggest to you that your statements here
18 indicate that you formed your opinions well before taking a neutral and
19 objective look at the evidence which has been provided. How do you
20 respond to that?
21 A. My answer is no. Political activity is one thing, a professional
22 report is another thing; and there's always a difference there, a very
23 important difference.
24 MR. RUSSO: Mr. President, I move for the admission of 65 ter
1 MR. KAY: No objection, Your Honour.
2 JUDGE ORIE: Mr. Registrar.
3 THE REGISTRAR: Your Honours, that becomes Exhibit P2637.
4 JUDGE ORIE: And is admitted into evidence.
5 MR. RUSSO: Thank you, Mr. President.
6 Q. Mr. Kovacevic, are you familiar with Mr. Franjo Feldi?
7 A. Yes, I've known him since 1991, when he joined the Croatian Army
8 sometime in the month of July.
9 Q. And are you aware of Mr. Feldi's position on the Cermak Defence
11 A. No.
12 Q. Did you follow the testimony of Mr. Feldi over the course of the
13 last few days?
14 A. I watched some short parts of it on Tuesday, on the first day,
15 and after that I didn't watch the testimony.
16 Q. Did you otherwise learn of the general substance of the
17 testimony, other than what you watched on Tuesday?
18 A. I followed some reports on the internet conveyed by the
19 HINA agency regarding the military police which was also part of the
20 testimony. It was a very short report by the Croatian news agency.
21 Q. Mr. Kovacevic, did you work at all with Mr. Feldi in the
22 preparation of your expert report?
23 A. No. My expert report was done independently, I did it on my own.
24 Mr. Kay gave me instructions as to what content I should deal with and
25 how many pages I should produce. I was given a brief as to what to do.
1 Q. Just to be clear, did you and Mr. Feldi assist each other in any
2 way in the preparation of your respective reports?
3 A. No. My report is a legal expert -- expertise, and General Feldi
4 is a soldier, and there is a significant difference in the way the two of
5 us may have approached an expert report.
6 Q. Mr. Feldi -- I'm sorry. Mr. Kovacevic, I'd like to show you a
7 comparison of some documents in your report and in Mr. Feldi's report.
8 Mr. President, we'd like to do this via Sanction. We're going to
9 show the comparison chart which has been provided to the Chamber and the
10 parties. This is 65 ter 7415.
11 JUDGE ORIE: One second, one second, please.
12 I said one moment. Mr. Russo, you saw that the Chamber was --
13 that the Judges were consulting.
14 The Chamber would prefer you first to explore how portions were
15 produced by Mr. Kovacevic before we start comparing.
16 MR. RUSSO: I'll do that, Mr. President.
17 JUDGE ORIE: Yes. So the material should be returned to
18 Mr. Russo.
19 MR. RUSSO: My apologies for that, Mr. President.
20 Q. Mr. Kovacevic, there are a number of organigrams in your expert
21 report. I'd like to know where you got those.
22 A. Let me tell you this: As I was drafting my report, and as I went
23 through the chapters, I left some room in the first draft of the report,
24 after I'd spoken with Mr. Kay, I left some room for the schematic
25 illustrations of what I dealt with in the chapter. I took the
1 regulations, and you know how schematic illustrations are done. It's
2 very easy. And then Mr. Kay told me that those already existed, that
3 they had already been produced and exist as evidence before this
4 Trial Chamber. They represented the military police, the organisation of
5 the Police Administration of Knin District, the Police Administration of
6 Zadar and Knin, and a few others. I believe that whatever I proposed to
7 do, Mr. Kay told me that there is no need because they already existed,
8 they were in evidence before the Court, and he told me that his support
9 team would provide me with all the necessary graphic illustrations for my
11 I believe that the schematic regarding the organisation of the
12 MUP and the map did not exist. I wanted to include the map to show what
13 was covered by the Police Administration of Knin District and what was
14 covered by the Knin Military District. I wanted to have a clear
15 illustration of that.
16 I made most of my schematics by hand. I drew them and showed
17 them to Mr. Kay, who then told me that most of them already exist and
18 have already been put in evidence before this Court.
19 We can go through the schematics one by one and explain each of
20 them in turn. But I can come up with any sort of schematic you want me
21 to. Just give me the parameters, and I will produce one immediately here
22 for you.
23 Q. Mr. Kovacevic, I was under the impression that your report was
24 drafted entirely independently by you. Are you telling me that you
25 received specific documentation from Mr. Kay to include in your report;
1 is that correct?
2 A. I said it very loud and clear. I hand-drew the schematics that I
3 needed, the Police Administration of Knin District, the
4 Police Administration of Zadar and Knin, the organisation of the military
5 police. I drafted those, and they had to be perfected. And when I told
6 Mr. Kay what would be inserted in the blank spaces, I wanted to show that
7 Knin belonged to the Police Administration of Zadar and Knin, for
8 example, he told me, There is no need, the schematics already exist, they
9 were already drawn by professionals, and they have been tendered into
10 evidence. There's no difference whatsoever with what I proposed, as
11 drawn by my own hand, and what Mr. Kay's team had prepared for this case.
12 There is no difference in the content of the schematics. If there were
13 any differences, then we could be talking about me copying somebody
14 else's work. But there is no difference because the schematics of the
15 MUP are all based on the work of the MUP since February 1995.
16 It is very simple to produce a schematic of any kind. You take a
17 piece of regulation, you look at the organisation, and you transform it
18 into a schematic, and a schematic is a good way to illustrate things
19 which can make even your life easier, if you want to understand what is
20 going on, and especially when it comes to the penal part of the police
21 work, because the police of the Knin District did not have jurisdiction
22 over crime investigation matters. That was part of the administration of
23 Zadar and Knin police.
24 Q. Okay, Mr. Kovacevic. My time is a bit limited, so I didn't ask
25 you about the substance of any particular relationship. I'm trying to
1 understand the process by which these organigrams ended up in your
2 report, and I want to be clear.
3 You're telling me that you drew schematics on your own, showed
4 them to Mr. Kay, Mr. Kay told you that the exact content of these
5 schematics had already been introduced into evidence; is that correct?
6 A. Absolutely correct. My schematics were drawn by hand, the boxes
7 were all drawn by hand, and what he proposed to produce was something
8 that had already been admitted into evidence. And he told me, I am going
9 to give you those to save you the trouble of having to draw the
10 schematics in an electronic form, because my schematics, what I proposed
11 to Mr. Kay, had been drawn by my own hand. It had not been done on a
12 laptop, like the text was. My schematics were on pieces of paper,
13 hand-drawn by me. I showed them to Mr. Kay, who then told me, We already
14 have those, they have already been admitted into evidence in this case.
15 Q. How exactly did this happen? I want to be clear about this. You
16 handed to Mr. Kay hand-drawn schematics. Did he have with him already
17 the organigrams to compare it with to say that they were identical, or
18 did he know immediately, by looking at them, that they were identical?
19 A. Let me tell you how the conversation went. He read the chapters
20 that I drafted professionally, and then I told him, Here, where you see a
21 blank space, I propose to include a schematic that I already have
22 hand-drawn. Mr. Kay asked me what the schematic is going to illustrate.
23 My draft was in Croatian. It took time for everything to be translated
24 into English. When we spoke, we had an interpreter with us, and I told
25 him, This is where I'm going to include the schematic --
1 THE INTERPRETER: Could the witness please slow down. It's
2 impossible to follow.
3 JUDGE ORIE: Mr. Kovacevic, the interpreters cannot follow you
4 because you're speaking too quickly. Could you please try to --
5 THE WITNESS: [Interpretation] I apologise.
6 JUDGE ORIE: -- slow down, and perhaps you resume your answer
7 just a couple of lines ago.
8 THE WITNESS: [Interpretation] It was very simple.
9 Mr. Kay and I were talking. We went through a certain chapter in
10 my expert report, and then I told Mr. Kay, This is where I want to add
11 the schematic of the organisation of the Police Administration of Knin.
12 I had it hand-drawn, based on the regulation on the internal organisation
13 and the professional work of the Ministry of Defence. This is a decree
14 that was adopted by the Government of the Republic of Croatia
15 1995. Mr. Kay looked at the part that I read out to him, and then he
16 looked at my proposed schematic and told me, We already have that. This
17 has already been admitted into evidence in the courtroom. There is no
18 need for you to go into the trouble of producing the schematic. It is
19 already there. We have it in an electronic form. And it, indeed, would
20 have been very difficult for me to produce all the schematics in
21 electronic form. It was as simple as that, and it applied to all the
22 schematics. And when it comes to the central schematic of the MUP, since
23 they had all the necessary support, I asked them to transform my proposal
24 into an electronic form, which was easier for them to do than it would
25 have been to me.
1 And I apologise, Your Honours, for speeding up.
2 MR. RUSSO:
3 Q. I want to take this meeting between you and Mr. Kay piece by
5 First of all, this meeting at which you and Mr. Kay are going
6 through your report, and at which you're indicating to him you want to
7 insert schematics, when exactly did this conversation take place, and
9 A. There were several such conversations sometime in February or
10 March. I really don't know exactly. I started working on my report in
11 early February and finished. It's as simple as that. I can actually
12 give you a practical demonstration of how things developed.
13 Q. You indicated February or March. Is that February or March of
14 this year?
15 A. Yes, this year, 2009. It was after I stopped being a politician.
16 Q. And when you showed your schematics to Mr. Kay, and he looked at
17 them and indicated that they'd already been admitted into evidence, at
18 that time did he have -- the schematics which were admitted into
19 evidence, did he have those with him to show you that they were
21 A. After a while, those schematics were downloaded from the
22 database. As soon as he heard me describe my schematics, he was almost
23 certain that we were talking about the same thing, because in the part
24 that I gave to Mr. Kay there was a text and then there was the schematics
25 of the Police Administration of Knin, and that schematic was hand-drawn
1 by me. And when I spoke to Mr. Kay, Mr. Kay told me, The schematics
2 already exist, they have already been tendered into evidence, and that's
3 why we concluded that I should not have to go into the trouble of
4 producing my schematics in the electronic form, since they already
5 existed and had already been admitted into evidence. So we decided to
6 adopt those. And Mr. Kay actually wanted to be absolutely sure and
7 double-check whether the schematics that are already in evidence contain
8 any mistakes, so we looked at them, and I was convinced that there were
9 no mistakes, that they look exactly as they should, and that I could
10 easily subscribe to them.
11 Q. Now, how many such meetings did you have with Mr. Kay, where you
12 went through the substance of your report and discussed what should or
13 shouldn't be in there?
14 A. Four, five at the most; not many.
15 Q. And at each of these meetings, did you have a draft of your
16 report with you to show Mr. Kay, or had you provided him with a draft of
17 your report at that time prior to each of the meetings?
18 A. First, I handed my report, and subsequently we had our meetings.
19 How could we have had meetings without Mr. Kay being privy to the
20 materials that I had produced?
21 Q. When was the first time you handed your report to Mr. Kay?
22 A. Sometime in February. I'm not very good with dates. First we
23 discussed the contents. Then I told him what documents I was using to
24 prepare my expert report. Then I drafted a certain number of chapters.
25 And that's how our cooperation proceeded until the whole report was
1 finalised. I don't have my notes on me, so I can't consult anything to
2 be able to tell you the exact dates.
3 Q. What I'm trying to determine, Mr. Kovacevic, is the extent to
4 which you had meetings with Mr. Kay during the entire process of the
5 drafting. In other words, you didn't, did you, hand a final report to
6 Mr. Kay, and then have four or five meetings with him, and your report is
7 exactly the same as the first time you handed it to him? That's not the
8 case; correct?
9 A. There is no major difference between my draft report and my final
10 report. Mr. Kay wanted me to reduce the number of pages to bring it down
11 to anything between 80 to 200 [as interpreted], not more. That's why I
12 shortened some chapters concerning the presidential system in Croatia
13 the legal hierarchy of legal regulations, the jurisdiction over their
14 passing, the role of some officials of the UN. Those things have not
15 made it to the final version of my report. The only thing that happened
16 was that the number of pages has been reduced in my final report. The
17 essence of the report has not changed, however.
18 Q. How many drafts, exactly, did you give to Mr. Kay before
19 achieving the final result?
20 A. The first, the second, and the third. The first was very
21 extensive, and then Mr. Kay asked me to reduce the report to something
22 between 80 and 100 pages, which would suffice. The second was a
23 curtailed version, and then the third and final version was translated
24 into English. And the two of us, together, checked and double-checked
25 the translation, collated the translation with the original, in order to
1 be as certain about the use of professional and technical terms.
2 JUDGE ORIE: Mr. Russo, I'm looking at the clock. Mr. Misetic
3 asked for two or three minutes in the absence of the witness. Could you
4 find, within the next two or three minutes, a suitable moment to have a
6 MR. RUSSO: Mr. President, I'm not done with this topic, so this
7 is just as good a time as any.
8 JUDGE ORIE: Yes, you'd say you need any -- way more than two or
9 three minutes.
10 Then, Mr. Kovacevic, we'll have a break. We have first to deal
11 with a procedural matter. I'm not yet aware of what it is, but we're not
12 going to bother you with that. We'd like to see you back in close to
13 half an hour from now.
14 [The witness stands down]
15 JUDGE ORIE: Mr. Misetic, a matter we can deal with in open
17 MR. MISETIC: Yes, Mr. President.
18 JUDGE ORIE: Yes.
19 MR. MISETIC: Mr. Kehoe and I just wanted to address the Chamber
20 on this issue that was raised in cross-examination about documents being
21 purchased on a black market. I understand Mr. Russo wasn't making an
22 allegation and was exploring what was stated in the article, but we did
23 want to be expressly clear that, on behalf of the Gotovina Defence, we
24 have never purchased any documents from anyone, and no documents tendered
25 in this Chamber by the Gotovina Defence have ever been purchased or
1 obtained on a black market or any such thing, just as officers of the
2 Court, so that that is on the record.
3 Thank you, Mr. President.
4 JUDGE ORIE: Yes. I think Mr. Russo at least did not further
5 pursue the matter once the witness had said how he obtained documents
6 from the Defence. You add to this that whatever documents you obtained
7 were not bought at the black market.
8 MR. MISETIC: That's correct, but I actually wanted it to be
9 stated as fact on the record, that no such thing has taken place with the
10 Gotovina Defence.
11 JUDGE ORIE: Yes, well, it's on the record, so that --
12 Mr. Mikulicic.
13 MR. MIKULICIC: For the record --
14 JUDGE ORIE: Nothing bought on your black market, either, or --
15 MR. MIKULICIC: Nothing bought on the black market, and just for
16 the record, the same thing applies to the Markac Defence as well as my
17 learned friend told before.
18 MR. KAY: And the same for me. And I didn't even buy
19 Mr. Mikulicic a cup of coffee yesterday to get The Blue Book.
20 JUDGE ORIE: Now, just for me, since you make it an issue, I do
21 understand that your statement says, We never paid for any document which
22 we obtained from sources not in the government. That's what I understand
23 by "black market," because I don't understand the government to be part
24 of a black market.
25 MR. MISETIC: Well, I also wish to be clear about this, so
1 there's no confusion. We've never paid the government for any documents,
3 JUDGE ORIE: Yes. There was no suggestion of that kind in my
4 observation, which does not mean that all the documents you ever obtained
5 always were obtained from the government. I take it that whenever an
6 individual was in possession of a document you considered to be useful,
7 that you would obtain it from that individual, but you would not pay for
8 it, and never you, I take it, you encountered a situation in which you
9 were invited to pay for it.
10 MR. MISETIC: That is absolutely correct, Mr. President. The
11 situation would be, again, Mr. Lausic's diary, it's a relevant piece of
12 evidence in the private possession of the person. We would obtain a
13 copy, and it's for our own use. Other examples would be media reports,
14 et cetera, that --
15 JUDGE ORIE: Yes. Well, I just want -- if you make a statement
16 about the black market, where Mr. Russo asked about the black market and
17 where the witness was not able to tell us anything about it, to have a
18 proper understanding of what your clear statement, the statement of the
19 Gotovina Defence, comes down to. And I take it, Mr. Mikulicic and
20 Mr. Kay, that --
21 MR. KAY: Absolutely.
22 JUDGE ORIE: -- it should be -- your statement should be
23 understood in the same way. Then we'll have a break, and we'll resume
24 at --
25 Mr. Russo, you paid for something?
1 MR. RUSSO: I'm about to pay for a cup of coffee, Mr. President,
2 but --
3 JUDGE ORIE: All three Defence teams, I take it.
4 MR. RUSSO: I can't promise that. I do intend to -- well, I had
5 originally intended to put the chart to the witness. However, the
6 testimony he's just given, I'd just like to ask him whether he knows the
7 relationship between the ones in his report and Mr. Feldi's report, and I
8 would like to bar table the comparison charts. I just thought I would
9 give everyone a little notice of that. That's how I intend to proceed.
10 So if there are any problems, I guess we can address them when we come
11 back from the break.
12 JUDGE ORIE: Would it be of any use to, if we are comparing
13 documents anyhow in view of the testimony of the witness, to compare what
14 has been earlier tendered and was admitted into evidence with the dates,
15 because now we have quite a lot of diagrams for which we have, well,
16 various explanations as to how they were produced, by whom in
17 handwriting, what was then done with it, for what purposes. And then now
18 we have, as additional element, that simply documents that were already
19 admitted into evidence were provided to the witness because they were
20 apparently of the same contents as what the witness had produced, so that
21 we have a full overview.
22 MR. RUSSO: I understand, Mr. President, and we can certainly put
23 something like that together.
24 MR. KAY: Yes, and can I make a statement, because it looks to me
25 as though I'm prime suspect in all this.
1 JUDGE ORIE: You're not a suspect, Mr. Kay.
2 MR. KAY: We have used organigrams in the course of our
3 cross-examination, as the Court knows, and in preparing this Defence case
4 and having to learn a totally alien political and governmental structure,
5 I have had organigrams produced for me so that I can see the picture and
6 understand it, and it's a route that I have taken when introducing
7 evidence at various points to help Your Honours in explaining it to you,
8 the basis and nature of the structures that we are concerned with, as it
9 occurred to me that during the presentation of this case that was
10 lacking. And in my submission, it was done with all good intention to
11 assist the parties. In the interim, a number of organigrams were
12 obviously developed because the people I work with know this system,
13 they're of it. Here's the man giving evidence who drafted the legal
14 legislation. We've previously had General Feldi, who drafted the service
15 regulations. They are people from the system, and any organigram that
16 was produced would have been something that they would have seen and, if
17 it was wrong or defective, would have not been in their report.
18 I took the view that it was helpful as well, in their reports, to
19 have organigrams in the text rather than as an annex, because it was
20 easier to read and see, so it was an idea I had, in the preparation of
21 the defence, to make sure that pictorially there was a representation for
22 the Court and for others to see what was being said, rather than some
23 exhibit footnote annex which you can't immediately relate to the text.
24 So just to let Your Honours know that if an explanation is required, I am
25 the person who thought organigrams would be a good idea.
1 JUDGE ORIE: Mr. Kay, I think there's no issue about organigrams
2 or diagrams being useful. I think there were no objections to have them
3 admitted into evidence. We have seen quite some of them. I think the
4 issue that arose now is a bit of a different one; that is: Who is the
5 intellectual author of the diagrams and organigrams we find in the expert
6 reports? And that's -- we have now heard from this witness that he
7 drafted his own ones, but then was provided with already existing ones
8 already in evidence, whereas Mr. Feldi testified differently. He didn't
9 say, Mine were, at the suggestion of the team, replaced by those already
10 in existence; but he said, Mine were scanned, and then in its scanned
11 version, they were introduced in my expert report. And then, of course,
12 looking at the different -- the testimony about who authored what,
13 exactly, then it may be interesting to compare the versions that were
14 already in evidence, the versions that appear in one report, the versions
15 that appear in another report, and versions that appear, as we know by
16 now, in The Blue Book. And I think that's the matter we are exploring at
17 this moment. And I did not gain any impression that the use of diagrams
18 and preparing them would not be useful either for the case or for this
20 MR. KAY: Yes.
21 And, Your Honour, on another matter as well with General Feldi, I
22 am -- have always been conscious in cases like these that the Prosecution
23 use expert witnesses, I could not possibly deal with the expert report of
24 Mr. Theunens on my own. I have had General Feldi as someone -- an expert
25 to whom I could consult, and that was his purpose in coming and joining
1 and working with my team. And I could not understand this system from
2 the materials supplied in either the Prosecution pre-trial brief,
3 indictment, or, indeed, the witness statements, and General Feldi has
4 been a source of instruction to me. Any credit from my
5 cross-examination, in a sense, is from those who I have to consult to
6 understand these issues. And I just want to make that entirely clear and
7 that there's nothing here that, in my eyes, is unusual in any litigation
8 that I have ever conducted.
9 JUDGE ORIE: No, Mr. Kay, I don't think -- the issue there may be
10 that if an expert appears before this Court who is employed by the
11 Prosecution, that's usually known to the other parties and to the Bench.
12 It appears in their CV that they were employed, when they were employed,
13 which allows for questions such as, What subject matter did you deal with
14 when you were employed? Whereas for Mr. Feldi, and I don't know to what
15 extent it will be an issue to be raised by the Prosecution, but at least
16 from his CV, it was not clear that he worked for the Cermak Defence team
17 in the role as you just described, in addition to having been asked to
18 prepare an expert report. That's, I think, what may have caused some
19 questions to be put to him.
20 MR. KAY: Yes. I used him as an expert. Then I asked him to
21 produce an expert report after Mr. Theunens had given evidence, and that
22 is the sequence of events.
23 JUDGE ORIE: Thank you.
24 Mr. Russo, anything to be raised at this moment?
25 MR. RUSSO: Nothing to be raised. I just wanted to advise the
1 Trial Chamber that I'm aware I've only estimated two sessions. However,
2 the pace of the cross-examination is not proceeding as I had hoped, and I
3 think I may go more than two sessions.
4 JUDGE ORIE: Yes. Try to be as efficient as possible in this
6 We'll have a break, and we'll resume at five minutes past 11.00.
7 --- Recess taken at 10.39 a.m.
8 [The witness takes the stand]
9 --- On resuming at 11.09 a.m.
10 JUDGE ORIE: Mr. Russo, you may proceed.
11 MR. RUSSO: Thank you, Mr. President.
12 If we could have 65 ter 7415, and my apologies. If I could also
13 have the assistance of the Court Usher, I do have something to pass to
14 the witness. This is the hard copy of the comparison chart of
15 organigrams, with the Court's leave.
16 Q. Now, Mr. Kovacevic, I want to take a look at just a few of the
17 organigrams in your report and compare them to those in Mr. Feldi's
18 report. If we could start with the first one, that is -- if we could
19 move to the second page here in e-court. Actually, I believe it would be
20 the third page. Yeah, the third page, please.
21 And this is an organigram found at page 73 of your expert report.
22 That's the B/C/S version. And if you take a look in your hard copy
23 there, the document which appears next, if we could move to the next page
24 in e-court, is the organigram which appears at page 20 of Mr. Feldi's
25 report. And I've compared these two, and they appear to be identical.
1 Now, I'd like you to explain to me, is this one of the
2 organigrams which you had handwritten on your own and were told was
3 already in the possession of the Defence?
4 A. I think it is. There could be no differences between my diagram
5 and Mr. Feldi's, because we used the same source. The source is the
6 structure of the military police as prescribed by the minister of
7 defence. The diagrams cannot differ if they are based on the same
9 Q. Mr. Kovacevic, did you get a look at Mr. Feldi's report before
10 completing your own report?
11 A. No, I did not. I did not look at his report whatsoever, not
12 before, not now, nor ever.
13 Q. And to be clear, you don't know, do you, exactly what the genesis
14 of the organigrams that Mr. Feldi's included in his report were? You
15 don't know where Mr. Feldi got those particular organigrams, do you?
16 A. I don't. Perhaps Mr. Kay could tell you, or someone else. Once
17 I had made the handwritten diagram, Mr. Kay said he had it. I used the
18 source, which was the Ministry of Defence. Therefore, there could have
19 been no differences.
20 MR. RUSSO: Mr. President, I would offer 65 ter 7415 across the
21 Bar table, and I will supplement with a submission regarding the use of
22 similar organigrams in previous testimony, as the Court suggested.
23 JUDGE ORIE: Yes, that is --
24 MR. KAY: No objection, Your Honours.
25 JUDGE ORIE: Mr. Registrar.
1 THE REGISTRAR: Your Honours, that will become Exhibit P2638.
2 JUDGE ORIE: And is admitted into evidence.
3 Proceed, Mr. Russo.
4 MR. RUSSO: Thank you, Mr. President.
5 Q. Moving on, I'd like to talk about some of the substance of your
6 report, Mr. Kovacevic. If we could move to section 5.4.6 of your report.
7 And for the benefit of the Court and counsel, this appears at
8 page 97 in the English version and B/C/S page 89.
9 In section 5.4.6, Mr. Kovacevic, you address the issue of
10 military police subordination to HV commanders under Article 9 of the
11 rules governing the structure and operation of the military police. And
12 there you refer to several specific orders issued by General Lausic in
13 August of 1995, orders in which he expressly subordinates military police
14 to the highest HV commander in the area. And in particular, you state:
15 "Finally, in neither of these two orders, orders dated 5 and
16 14 August 1995
17 subordination of the Knin Military Police Company, since if that were the
18 case, he would have used the expression 'I hereby subordinate,' instead
19 of the word 'subordinate.'"
20 A. Correct. There is a marked difference, "I hereby subordinate"
21 and "to subordinate."
22 Q. My apologies, Mr. Kovacevic. Just waiting for the translation to
23 catch up.
24 Now, Mr. Kovacevic, are you attempting, in this section, to
25 suggest to the Trial Chamber that there is some significance in the
1 semantic distinction you're drawing here?
2 A. There is a significant difference. When one says "I hereby
3 subordinate," it should be stipulated to whom. When it is stated "to
4 subordinate," then we leave it up to someone else to do it. This is in
5 the military jargon as well as in regular language. "I hereby
6 subordinate" is something which takes effect immediately, and "to
7 subordinate" denotes a lasting action. "To subordinate" is not as
8 precise. It basically states that it is left to another person to do so.
9 When I say "I hereby subordinate you to ...," that takes effect
10 immediately. But when I say "to subordinate," that action has not taken
11 place yet.
12 Q. I want to be clear. Is it your opinion that if General Lausic
13 had used the phrase "I hereby subordinate," then that would have been a
14 legally-effective subordination of the military police to the HV? Is
15 that your opinion?
16 A. If you have read paragraph 5.4.5, you would have noticed several
17 mistakes in his order. First of all, he used the term "in daily
18 operational command." We don't find that term in Article 9 of the rules.
19 It is simply not there.
20 Secondly, the newly-formed platoons and companies which are to be
21 subordinated to the most senior commander, he doesn't say to which
22 commander and that they have been subordinated. Had he said,
23 specifically, "Subordinate this and that company to the Knin commander,"
24 that would have been clearly -- clear and sufficient. Orders need to be
25 clear, self-sufficient, and must be able to be implemented.
1 Q. Well, before deciding on what expression General Lausic would
2 have used, did you actually review the evidence, that is, the witness
3 statements and the testimony of General Lausic, regarding subordination
4 of the military police to HV commanders?
5 A. I have read his statements. As far as you can see, yourself, in
6 this part I analyse it in legal terms. I analyse each component of his
7 order, and I pointed out the mistakes he had made. That was my role, as
8 the expert. I listened to that part of his testimony, and it is clear
9 that he doesn't make a distinction between the various bylaws.
10 Specifically, in this case, the organisational order for garrisons, in
11 terms of the bylaws by the Ministry of Defence, which has to do with the
12 basic mobilisation plan, one cannot use the Rules of Service for the
13 Military Police to make a different decision. This is the legal
14 hierarchy of the various regulations, and I realised from his testimony
15 that he is not aware of that distinction. He tried to defend a position
16 which, legally speaking, could not be.
17 Q. Mr. Kovacevic, you do not address Mr. Lausic's witness
18 statements, nor any of the testimony he provided in court, in your expert
19 report, and I'm going to suggest to you that you didn't do so because the
20 evidence he provided, in fact, contradicts your theory about the
21 applicability of Article 9. And I want to point you to some particular
22 pieces of evidence that General Lausic provided. Specifically, at
23 transcript page 15346, this is lines 15 to 17, General Lausic stated:
24 "Article 9," and that's Article 9 of the rules, "envisaged the
25 right to implement daily operational tasks in everyday activities to the
1 various commanders of the armed forces in Croatia."
2 If you'll bear with me, I'm going to read you a couple of other
3 portions. At transcript page 15 --
4 A. What he said is not foreseen by Article 9. If you actually read
5 Article 9, you'll see that the terminology is different.
6 MR. KAY: I think it's helpful, if the witness can answer a
7 proposition. We saw yesterday a wrapped-up ten or more quotes from the
8 Prosecution which, in my submission, was unhelpful, and if the expert
9 witness can respond as he wants to, to the proposition being put, I don't
10 think that that's an unreasonable request on his behalf, nor unhelpful to
11 the Court.
12 JUDGE ORIE: Yes. Well, the witness did, as a matter of fact,
13 and I did not have the impression that Mr. Russo was about to stop him on
14 this matter.
15 Mr. Kovacevic, Mr. Russo will put several --
16 THE WITNESS: [Interpretation] I was stopped.
17 JUDGE ORIE: Then that does not appear on the transcript, at
19 Mr. Russo, if -- there is a dilemma here, which is the following:
20 Sometimes it is useful to respond to every single quote. Sometimes it is
21 to be preferred to have them taken together.
22 Now, Mr. Kovacevic, I would suggest the following: If you think
23 that in that specific quote there is something that needs to be
24 specifically addressed, and from what I understand, you have reviewed the
25 testimony, and which is unrelated to other portions, then you can
1 immediately respond. If, however, it is a matter which relates to other
2 portions of the evidence which you have reviewed already, then I would
3 suggest you wait until you have heard all of it and then respond to the
4 quotes in their entirety.
5 Mr. Russo, this dilemma might not be easily resolved, and be
6 relied, to some extent, on the expert here as well.
7 MR. RUSSO: Thank you, Mr. President.
8 All of the pieces of evidence that I'm going to be referring to
9 all deal with the exact same issue, so I think it's --
10 JUDGE ORIE: Yes, it's the same issue, but not necessarily, I
11 take it, all exactly the same testimony. To the extent you think you can
12 deal with it altogether, Mr. Kovacevic, you're invited to wait until
13 you've heard all of it. If you want to, at a later stage, want to be
14 reminded of a specific portion, you can ask for that, say -- if you would
15 say, I'd like to respond to the third quote you gave me, then we'll read
16 that again to you, and then it may refresh your memory before you
18 Please proceed, Mr. Russo.
19 MR. RUSSO: Thank you, Mr. President.
20 Q. Now, at transcript page 15353, this is lines 19 to 25,
21 General Lausic testified:
22 "HV unit commanders or garrison commanders within whose area of
23 responsibility the specific MP unit is, command MP units to execute all
24 military policing tasks in keeping the authority and powers of work of
25 the military police. They're also tasked with daily monitoring of the
1 work of the MP and notify the MP Administration with the proposal of
2 measures to be undertaken by the Administration so as to ensure efficient
3 functioning of the MP unit."
4 Now, before I move on to the other portions that I'm going to
5 discuss, I'll give you an opportunity to respond to the first two quotes
6 I've given.
7 A. One needs to say this: It is important that in all these
8 situations, one needs to bear in mind the provisions of Article 9 and 10
9 of the Rules on the Structure and Work of the Armed Forces of the
10 Republic of Croatia
11 Article 10 is a combination of a corresponding article from the Law on
12 Internal Affairs. These are the tasks of the basic police, crime police,
13 and special police. So when Lausic speaks in such general terms, it is
14 not correct. One needs to specify which tasks are to be assigned to the
15 commanders of the military districts if any authority is given to them to
16 command the military police. But the military police, as such, is
17 outside the armed forces structure. It is under the Ministry of Defence,
18 and he was the sole commander of the military police. The problem arises
19 from what he is saying, which does not correspond to the legal reality.
20 He cannot assign MP tasks to anyone else, and this includes the crime
21 military police. He has to be very specific in terms of what regular,
22 daily policing tasks are assigned to this and that particular military
23 unit, say the battalion, and which tasks are assigned to the military
24 district commander precisely. This is a legal regulation, and an order
25 needs to be based on that. It has to be short, implementable, and clear.
1 Otherwise, one might conclude that he had nothing to do with the military
2 police and that it handed -- he handed over all of his authority to the
3 military district commanders. Legally speaking, it is incorrect.
4 Q. Well, first of all, I'll suggest to you, Mr. Kovacevic, that with
5 respect to what tasks he is referring to as the HV commanders being able
6 to direct the military police units with respect to, he indicates, as in
7 the quote I read, all military policing tasks in keeping the authority
8 and powers of the work of the military police. So to the extent that you
9 indicate that he didn't specify, I suggest to you that, in fact, he did
10 specify, and he specified all.
11 But beyond that, I'd like you to point specifically -- if you can
12 refer the Court to the language in either the rules or anything which
13 actually says that the chief of the military police is required to
14 specify X, Y, and Z in implementing orders. Can you point to a provision
15 which says that?
16 A. It's very simple. Articles in question are on number 8, where it
17 says that the chief of the administration commands the military police.
18 Number 9 says that in the policing duties, HV units are subordinated to
19 the head of the military district, which means that the legal provisions
20 do not result in direct legal effects. What is necessary is a concrete
21 military order which would specify the task. It says in Article 10 that
22 there are three types of tasks: tasks of the basic police -- let's make,
23 if you will allow me, let's make a distinction here. The military police
24 does the same thing as the military police do -- as the civilian police
25 do, but the military police is in charge of the armed forces. In any
1 case, the tasks are the same. The tasks are the same, and there are also
2 different tasks. And then an order should be issued where it will say, I
3 hereby subordinate the military police to the military district
4 commander, in terms of regular policing duties with regard to the
5 military traffic, patrols, but it has to specify exactly what. This is
6 the essence of the law, the essence of the order. And I wasted three
7 months with them until I was able to draft the regulation to read
8 properly. There is no "the most senior" that Lausic refers to. That
9 term does not exist in the Croatian legislation, that term does not
10 exist. He made it up. It's an invented term, invented by him.
11 MR. KAY: Just an observation. Could the witness be reminded by
12 Your Honour, rather than me, to speak more slowly.
13 JUDGE ORIE: I tried already, with my hands, to ask him.
14 Mr. Kovacevic, in return, I got your gestures. If I use my
15 hands, that is to remind you that you should slow down.
16 Please proceed.
17 MR. RUSSO: Thank you, Mr. President.
18 Q. Mr. Kovacevic, the Trial Chamber has heard quite a lot of
19 evidence regarding applicability of Articles 8, 9, and 10. But to
20 shortcut this section, would you simply agree with me that there is no
21 particular language in the rules which states that Article 9 does not
22 have a legal effect unless an implementing order is given? Would you
23 agree with me that there is no language to be found which says that?
24 A. First of all, we have to talk about legal rules and provisions,
25 what provisions means and when they can have direct effects and when not.
1 I'm saying that in Article 9, the provisions are drafted in such a way
2 that they don't result in direct legal effects. They call for the
3 passing of very specific orders. In other words, the provisions of
4 Article 9 --
5 JUDGE ORIE: You're repeating your earlier testimony, explaining
6 Article 9. The only thing Mr. Russo, at this point in time, asked you is
7 whether you would agree that there is no particular language in the rules
8 which states that Article 9 does not have a legal effect unless an
9 implementing order is given. Now, whatever conclusions would that lead
10 to, but if you say there is such language, clear language, please tell
11 us. If not, we'll proceed.
12 THE WITNESS: [Interpretation] Unfortunately, you're not right,
13 Your Honours. I am talking about legal positions and legal practice in
14 the Croatian legislation system.
15 JUDGE ORIE: You're asked whether you can point at any legal
16 text, not how you interpret texts, because we have heard about that quite
17 a bit, and it's clear what your position is. But Mr. Russo asked whether
18 there is a specific rule which requires that Article 9 does not have a
19 legal effect unless an implementing order is given, a specific
20 implementing order. Now, if you can point to such a text, please do so.
21 If not, it's fully clear what your position is, and then we can move to
22 the next question.
23 THE WITNESS: [Interpretation] What Mr. Russo is asking me is part
24 of the Anglo-Saxon law, which doesn't exist in the Croatian legislation.
25 There is no article of the same kind. And there is an important
1 difference between the Continental Law and the Anglo-Saxon Law. The
2 Continental Law stems from the Austro-Hungarian Law in Anglo-Saxon Law.
3 JUDGE ORIE: Your answer, therefore, is that there is no such
4 language to be found in the rules.
5 Please proceed, Mr. Russo.
6 MR. RUSSO: Thank you, Mr. President.
7 Q. And I notice, Mr. Kovacevic, that you don't treat Article 8 in
8 the same fashion. Your opinion is that Article 8 is self-executing, as
9 opposed to Article 9, which you claim is not self-executing. I wonder
10 why you draw a distinction between those two situations.
11 A. Because Article 8 says that all units of the military police are
12 subordinated to the Administration of the Military Police under the
13 command of the chief of the military police; isn't that so? It's as
14 clear as can be. General Lausic was the commander of the military
15 police. And in Article 9, it says that in performing regular policing
16 duties, units are subordinated to the commander of the military district.
17 There is a major distinction there. One should specify tasks provided
18 for in Article 10, what are the regular policing duties for which units
19 are subordinated. I think it can't be any clearer than that.
20 Q. Thank you. I'd like to refer back to some of the evidence of
21 General Lausic. In his witness statement, that is P2159, paragraphs 194
22 to 195, General Lausic indicates that the 72nd Military -- 72nd Battalion
23 Military Police Company based in Knin was subordinated to the highest
24 military commander in its area of responsibility, which he defined as the
25 town of Knin and its surrounding areas, and he stated that the
1 highest-ranking Croatian Army commander in Knin at the time was
2 General Cermak.
3 Further on in that statement, at paragraph 249 General Lausic
4 indicated that the Knin MP Company was under Cermak's command for its
5 day-to-day activities and that if a crime was committed within Cermak's
6 area of responsibility, it would have been his responsibility to direct
7 the military police.
8 Now, on cross-examination - this appears at transcript
9 page 15662, lines 16 to 23 - Mr. Kay suggested to General Lausic that
10 there was no document which established that the Knin MP Company was
11 under the day-to-day command of General Cermak, but General Lausic
12 disagreed with him and referred to Exhibit D47, which subordinates the MP
13 company commander to the highest HV commander in the area.
14 Now, what I'd like to know is -- or what I'm going to suggest to
15 you is that you did not address this evidence in particular because it,
16 in fact, contradicts your theory that this could not have been the case
17 under Article 9. Isn't that right?
18 A. If you have carefully read what I wrote in paragraph 549 and
19 further on, I didn't find it anywhere in the case, in all the documents
20 that I've perused, an order which would subordinate the company of the
21 military police in Knin to anybody. There are just two Lausic's orders
22 which say that somebody will have to do it, but he didn't specify who.
23 If that was the nature of the order, if it was not conclusive, it should
24 have been the battalion commander who had to do that, but he was never
25 authorised. He had to authorise him by his order. In formal and legal
1 terms... he could not, to General Cermak, as the commander of the
2 garrison, because according to paragraph 2 of the order on organisation,
3 the commander, or rather the command of the garrison does not have an
4 operational function and the right to command
5 over the armed forces. If he were to do so, he would violate the
6 regulation issued by the Ministry -- or, rather, the Ministry of Defence
7 about the organisation.
8 MR. KAY: Your Honour, it's a mistranslation we're quite familiar
9 with now. It was military garrison, not military district at 51, 12.
10 JUDGE ORIE: Yes, that seems --
11 MR. CAYLEY: He could not "subordinate" instead of "order."
12 JUDGE ORIE: That part of the translation will be verified, and I
13 don't think that there's any unclarity as to the -- what the substance of
14 the answer of the witness is.
15 MR. KAY: Well, I just had to correct it in case anyone was
16 misled by the transcript. Sorry.
17 JUDGE ORIE: Please proceed, Mr. Russo.
18 MR. RUSSO: Thank you, Mr. President.
19 Q. Mr. Kovacevic, are you familiar with an analysis put together by
20 members and former members of the Main Staff regarding Operation Storm,
21 an analysis which is commonly referred to as The Blue Book?
22 A. I heard about it, but I never saw the book, itself.
23 Q. When did you hear about it?
24 A. I believe that I heard about it from my colleagues in the
25 Main Staff. I was with the Ministry of Defence until the year 2000. I
1 heard that they were putting together a book about Operation Storm. I
2 don't know when that materialised, whether it was in 2005, or 2006, or
3 2007, but I knew that the publishing section of the Main Staff was doing
4 something to that effect. I never saw the book. I only heard that its
5 name -- its title was either "The White Book" or "The Blue Book." I
6 really don't know what the title is, actually.
7 Q. Can you provide us with the names of the individuals who you
8 heard were working on this book?
9 A. I was never told any names, and it's very difficult for me to
10 remember anything. I didn't see the book; I didn't read the book; I
11 didn't know whether it's blue or red, so I can't really be of much use to
12 you in that respect, I'm afraid.
13 MR. RUSSO: If we could have 65 ter 7416. And for the benefit of
14 the Trial Chamber, this is a -- these are several pages which are
15 excerpts from the CD version of The Blue Book which we received
16 yesterday. And if we could focus on the -- just on the footnote at the
17 bottom of this page and enlarge that.
18 Q. Mr. Kovacevic, would you please do me a favour and read that
19 footnote into the record.
20 A. "Complete command as a military responsibility of a superior
21 officer to issue orders to his subordinates. It covers all the aspects
22 of military operations and administration."
23 It's a very strange footnote. There should be a definition of
24 "complete command" as opposed to "incomplete command."
25 MR. RUSSO: If we could move to the next page, please, and focus
1 on the very first footnote on this page.
2 Q. Now, could you read into the record the portion which defines
3 "Operativno zapovijedanje"?
4 A. Are you using me as a speaker here now?
5 THE INTERPRETER: Could the witness please read slowly.
6 JUDGE ORIE: Mr. Kovacevic, if you read slowly. The problem is
7 that this document has not yet been translated, and you are right that we
8 are using, or one could even say, abusing you as a native-speaking
9 person. But if you would adopt approximately the speed of speech as I
10 now demonstrate, then the interpreters and transcribers will be able to
11 follow you.
12 So could you please slowly read which, Mr. Russo, seems to be
13 still a part of footnote 517 which starts at the previous page. Yes,
14 could you please slowly read.
15 THE WITNESS: [Interpretation] I will do so:
16 "Operational command as an authority vested in a commander,
17 allowing him to assign missions or tasks to subordinated commanders, to
18 deploy units, or re-subordinate forces, and to maintain or delegate
19 operational and/or tactical control as needed. This does not include
20 responsibility for administration or logistic. It can also be used to
21 mark the forces assigned to the commander."
22 Shall I go on reading?
23 MR. RUSSO: No, thank you.
24 One last portion to read, if we could go to the next page. I
25 promise this is the last abuse I will make of you in this regard,
1 Mr. Kovacevic. But if we could focus on footnote 537. It's the very
2 last footnote on the page. And if you could read the entire footnote
3 slowly, please.
4 THE WITNESS: [Interpretation] "Pursuant to the provisions of the
5 rules on the organisation work of the military police of the Armed Forces
6 of the Republic of Croatia
7 quote, "'All military police units are subordinated to the Administration
8 of the Military Police of the Ministry of Defence of the Republic of
10 Administration of the Military Police.' Daily operational command is
11 defined by Article 9 of the same regulation," and I quote, "'In
12 performing regular military policing duties, military police units are
13 subordinated to the commander of the military district, the commander of
14 the Croatian Navy, the commander of the Croatian Air Force, or to the
15 highest-ranking commander of the Croatian Army in the territory where the
16 military police are active. Thus, the Administration of the Military
17 Police of the Ministry of Defence had full command authority over the
18 units of the military police, whereas the commanders of the military
19 districts had the authority of operational command for -- over the
20 military police units assigned to them in the performance of daily tasks
21 and duties."
22 JUDGE ORIE: Mr. Kay.
23 MR. KAY: I'm sorry, but it is important. The word
24 "po duznosti," the third line from bottom, was read out but not
25 translated. That means "by function," so I'm told.
1 JUDGE ORIE: I am asking the -- well, let's first -- I don't
2 remember what was exactly read. I did not follow it. Any disagreement,
3 Mr. Russo, that a word may have been missing and that we should --
4 perhaps we could ask the witness to read that word again. Is it
5 possible --
6 MR. KAY: Page 54, line 23 to 24.
7 MR. RUSSO: Perhaps we could just ask the witness to read the --
8 JUDGE ORIE: That portion again.
9 MR. RUSSO: Yes.
10 JUDGE ORIE: Yes.
11 Could you -- apparently, Mr. Kovacevic, there was one word
12 missing in what you read, or it was not heard by the -- could you
13 please -- I think it's the last sentence, Mr. Kay, if -- yes. Could you
14 please read again, slowly, the last sentence of footnote 537.
15 THE INTERPRETER: Microphone for the counsel, please.
16 JUDGE ORIE: Microphone, please.
17 MR. KAY: Frustrating. The third-to-last line of the extract, if
18 that line, which starts beginning with "Navisem po duznosti ..." I won't
19 try anymore to murder a language that I struggle with, but if that could
20 be read out and the translation given. I think it can be taken from us
21 that we would only be objecting on this for good cause.
22 JUDGE ORIE: Yes, I do understand that, but at the same time we
23 have a procedure to have on the record not what, although for good
24 reasons has been suggested by counsel, but what was read and what was
25 translated, interpreted for us.
1 THE WITNESS: [Interpretation] I'm reading.
2 JUDGE ORIE: One second. Could you -- could you start reading at
3 the line Mr. Kay suggested, and read it slowly.
4 THE WITNESS: [Interpretation] "The most senior commander of the
5 HV by function in the territory where the MP unit is active."
6 JUDGE ORIE: Mr. Kay, does this --
7 MR. KAY: Yes, and it's been a live issue in the case, as
8 Your Honour knows. That's why I've --
9 JUDGE ORIE: I'm aware of it.
10 MR. KAY: -- raised it.
11 JUDGE ORIE: Yes.
12 Please proceed, Mr. Russo.
13 MR. RUSSO: Thank you, Mr. President.
14 Q. Now, Mr. Kovacevic, do you agree with what's been stated in
15 footnote 537 that you've read out?
16 MR. MISETIC: Mr. President.
17 JUDGE ORIE: Mr. Misetic.
18 MR. MISETIC: I'm going to note one objection, and that is that
19 the actual sentence from the main text, which is where the footnote then
20 comes, which is if we go into the main text on page 1, it says this
21 terminology is taken from NATO publications and that the authors are
22 using this terminology simply for the benefit of the reader. This
23 terminology, at least from this text, is not terminology used in the
24 Croatian Army.
25 JUDGE ORIE: This is comment rather than anything else. You
1 could have sought to clarify this, isn't it?
2 MR. MISETIC: No, because it's misleading, both first to the
3 Court, since we don't have an English translation as to what this
4 terminology is about, and do you agree with what?
5 JUDGE ORIE: With the text as written here. A text was read, and
6 now Mr. Russo asks whether the witness agrees with what is written here.
7 MR. MISETIC: Yes, and my --
8 JUDGE ORIE: And whether that is NATO or whether it is Australian
9 or whether it's Colombian, this is --
10 MR. MISETIC: The question is, does he agree that that is what
11 the term means where? Recall that we started -- he started having him
12 read on the first page.
13 JUDGE ORIE: Let's -- we'll ask whether the witness agrees with
14 what's written, and we could ask him what his understanding is of what is
15 presented in this text.
16 Mr. Russo, at the same time you've heard the objection raised by
17 Mr. Misetic. If you would rephrase your question in light of that, and
18 then, of course, you're invited to do so. This, of course, is to some
19 extent a result of not having a translation of this text yet available.
20 We have to deal with the shortcomings of the situation. At the same
21 time, it could not lead to everyone explaining why this portion is read.
22 We can ask the witness what he understands this to be and whether he
23 agrees with it.
24 Mr. Russo.
25 MR. RUSSO: Thank you, Mr. President.
1 Q. Mr. Kovacevic, irrespective of whose interpretation this may be
2 or in what context it may apply, the language that you read in
3 footnote 537, do you agree with it?
4 A. First of all, of course I agree with the quotes taken from
5 Articles 8 and 9. However, I would like to add something to the last
6 sentence or, rather, to the last part of that sentence which reads:
7 "Over the MP units assigned to them in the performance of their daily
8 tasks," it should read, "in the performance of regular policing duties,
9 as stipulated in Article 9." I wouldn't know what "daily tasks" would
10 be, because they have not been specified. The regulation is more precise
11 in that respect. What I'm saying is that they are shortening,
12 summarising, and making a mistake, because they are transforming regular
13 policing tasks and duties into daily tasks and duties, which compounds
14 the matter even further.
15 JUDGE ORIE: Now, Mr. Russo, could we invite the witness to read
16 the main text preceding footnote 537 and to complete reading that
17 sentence, and ask him whether having read this would cause him to in any
18 way supplement or change his answer. Therefore, we have to move on a
19 little bit higher to see where the sentence starts and then to give an
20 opportunity to the witness. Apparently, it starts with "Postrojbe." And
21 could an opportunity be given to the witness as well to read the
22 remaining part of this sentence on the next page.
23 MR. RUSSO: The problem is, Mr. President, there is no next page.
24 I don't know what it says. I'm happy to get it from the CD and have it
25 brought in, but that was not part of the excerpt which I brought in. So
1 there is no next page to turn to.
2 JUDGE ORIE: But, of course, I've listened to Mr. Misetic's
3 objection, and I want to -- on the one hand, to avoid that we are telling
4 the witness what is relevant in understanding the text. At the same
5 time, I would like that, if there is some concern, to give a fair
6 opportunity to look at the main text in order to better understand the
7 context in which the footnote was created.
8 Now, Mr. Mikulicic, you are offering us the next page?
9 MR. MIKULICIC: No, I am offering an assistance, if Your Honour
11 The relevant main text is under the footnote 517, which is on
12 first page of this extract that Mr. Russo provide us, so maybe --
13 JUDGE ORIE: I suggest that during the next break you will assist
14 Mr. Russo in finding the context in which you consider relevant and which
15 would shed perhaps a different light on texts and footnotes and try to
16 agree with him on the basis of the text, that it -- what would be fair to
17 put to the witness. We are struggling with the absence of a translation.
18 Mr. Misetic.
19 MR. MISETIC: We'll do that, if the Chamber desires. However, I
20 do want to note that I have a general objection to the use of this
21 document at all, because I don't -- I was going to wait until Mr. Russo
22 tried to tender it, but I don't think this document is admissible into
23 evidence to begin with. And if you wish to hear it now, I'd be happy to
24 state my position.
25 JUDGE ORIE: If you briefly, because an objection to an admission
1 into evidence of a document which has not yet been tendered --
2 MR. MISETIC: Well, just to see if we need to do all this work
3 during the break, et cetera, on a document that may not ultimately be
5 I think the parties are in agreement and the Prosecution
6 cross-examined General Feldi yesterday on the principle that The Blue
7 Book was prepared at the request of the Markac Defence for purposes of
8 this proceeding. As such, this Blue Book falls either under Rule 92 bis
9 or 92 ter, if it's not an expert report. If it's an expert report, it
10 falls under Rule 94 bis. But either way, it's prepared for purposes of
11 this proceeding. It's just like a witness statement taken by the
12 Prosecution and disclosed to the Defence, which the Defence tried to
13 tender Prosecution statements in its case in-chief and the Chamber denied
14 it. So I would argue that this report is -- was prepared, at least from
15 the evidence we have, for no other reason than these proceedings, and as
16 such, unless there's some way for the Prosecution to fulfill the
17 requirements of Rules 92 or 94 bis, it's inadmissible.
18 JUDGE ORIE: We'll consider that once the document has been
19 tendered. At this moment, we're just reading a quote from a document
20 which, apart from providing information, also played a role in the
21 activities of Expert Witness Feldi when preparing his report.
22 MR. MISETIC: I would draw the distinction there, Mr. President,
23 which is why I didn't object yesterday, to -- if it goes to issues of
24 credibility, then the matter is not being submitted for the truth or the
25 substance of the matters in the report. My impression is that Mr. Russo
1 intends to tender this for the substance of the report now, which changes
2 the calculus, in my view.
3 JUDGE ORIE: Well, he invites the witness to give his views on
4 what is written somewhere.
5 Let's proceed at this moment, Mr. Russo.
6 MR. RUSSO: Thank you, Mr. President.
7 Q. Now, Mr. Kovacevic, I want to try to cut things a little short.
8 And I just want to make it clear to you, if it's not clear already, what
9 the Prosecution's position is with respect to military police
11 It is the Prosecution's position that the military police were
12 under the command of General Cermak in the area of Knin and also under
13 General Gotovina in the Split Military District. Now, first of all, are
14 you aware that that's the Prosecution's position?
15 A. You have just said so, but it is incorrect regarding
16 General Cermak and General Gotovina.
17 JUDGE ORIE: The question, to start with, was whether you are
18 aware that it is the position of the Prosecution. You are not invited to
19 tell us whether you agree or disagree, but whether you were aware that
20 this is the position of the Prosecution.
21 THE WITNESS: [Interpretation] You put it to me. Now I am.
22 JUDGE ORIE: Yes. Please proceed, Mr. Russo.
23 MR. RUSSO: Thank you, Mr. President.
24 Q. And specifically with respect to the evidence of Basko Dzolic,
25 which I understand from your expert report you reviewed in conducting
1 your analysis, I'll put to you that the evidence provided by Mr. Dzolic
2 taken in, you know, its context, supports the Prosecution's position and
3 also supports the testimony of General Lausic that the Knin MP Company
4 was subordinated to General Cermak. Now, having reviewed all of the
5 testimony --
6 MR. KAY: Excuse me, sorry.
7 MR. RUSSO: I'm sorry. Can I finish my question, please?
8 MR. KAY: Well, there's been a misrepresentation of the evidence
9 in the case. I had to sit quietly yesterday while it happened, but I am
10 very, very concerned about evidence being taken that misrepresents the
11 evidence in the trial. I feel that if the Defence had done that during
12 the Prosecution case, we would have been corrected, Your Honour. And so
13 before Your Honour interjects, I want to show that this is an objection
14 we have which is fundamental, because if you put something to a witness,
15 saying, Someone else says this, and it's incorrect --
16 JUDGE ORIE: But let's try and keep matters simple.
17 I do understand that the witness reviewed this evidence. Why
18 characterising it then? And then, Mr. Russo, why don't you ask, Having
19 reviewed the evidence given by Mr. Dzolic and by Mr. -- who else was
20 it --
21 MR. RUSSO: Lausic.
22 JUDGE ORIE: Lausic. Whether the witness could elaborate on why
23 he disagrees with certain portions of it, rather than to say, This is in
24 support of, or this demonstrates this or that? Just keep it in rather
25 neutral terms. Then we avoid whatever problem of misrepresenting,
1 whether it supports or does not support. Let's hear what the witness's
2 comment is on this evidence, compared to his report.
3 MR. RUSSO: Well, I have to say, Mr. President, I think there is
4 a problem with my not being permitted to put my position on the evidence
5 to the witness. I believe it's part of my obligation to indicate to the
6 witness what I believe the evidence to indicate, and if he disagrees with
7 me, he can indicate to me why he disagrees with me.
8 JUDGE ORIE: Yes. First of all, you're not required to put every
9 piece of evidence, and if you want to put the evidence to the witness,
10 there's -- Mr. Kay has no problem with that. The problem is that you are
11 telling that this is in support, which means that you already give your
12 appreciation of the evidence. Whether it supports or not, of course, I
13 take it that you consider it supportive for the Prosecution's position,
14 but that's irrelevant for the witness to know. I would say, important is
15 to what extent this evidence, of which you may think whether it's
16 supportive or not, what comments this witness, who apparently differs of
17 opinion on certain matters, as expressed in that evidence, what his
18 comment on it is.
19 MR. RUSSO: Well, Mr. President, I have to disagree,
20 respectfully, with Your Honour. I do believe that under 90(H), which is
21 a rule of fairness to the witness, I do believe I have to preface these
22 questions by advising the witness that the evidence that I'm going to put
23 to him -- advising him that, in my view, it supports my case. It's to
24 allow the witness to address the evidence I'm going to suggest to him in
25 that context.
1 JUDGE ORIE: Let's listen to your question, and I do understand
2 that you disagree, but you're nevertheless encouraged to put it to the
3 witness in such a way that the type of objections raised by Mr. Kay will
4 not result from your questions. And if you are falling short of any
5 other -- of any obligation under Rule 90(H), I trust that Mr. Kay will
6 raise that issue.
7 MR. RUSSO: Thank you, Mr. President.
8 Q. Now, I'm going to refer you to, Mr. Kovacevic, particular pieces
9 of Mr. Dzolic's testimony, and again I'm going to do those seriatim and
10 then ask you some questions about them. But you indicated that you have
11 reviewed the testimony of Mr. Dzolic; correct?
12 A. I watched his testimony when I was working on that part of my
13 report dealing with General Cermak reporting on some arson. You can find
14 it in my expertise.
15 Q. Yes. And before I move on to the specific pieces I want to
16 address with you, I do want to make a it clear, in case you hadn't seen
17 this portion of the evidence, at transcript pages 9017, lines 16 to 18,
18 as well as transcript pages 9035 to 9037, this is upon questioning by
19 Mr. Kay. Mr. Dzolic in fact indicated that he was not under the command
20 of General Cermak and that General Cermak could not issue orders to him.
21 I do want to make it clear that in case you hadn't read that testimony,
22 he did testify to that on cross-examination.
23 Now, what I'd like to put to you are some of the statements he
24 made before he gave that evidence on cross-examination and ask you
25 whether you considered those.
1 Now, in his first statement to the Prosecution, Mr. Dzolic stated
2 that he was asked -- and I'm sorry, for the benefit of everyone, this is
3 at P875, paragraph 37 of the statement.
4 In that paragraph, Mr. Dzolic stated that he was asked by his
5 superior, Colonel Budimir, to be at General Cermak's disposal, and he
6 understood that to mean that he was partly under General Cermak's command
7 and partly under Colonel Butmir's command, and that he was to obey any
8 order that General Cermak gave him.
9 In a subsequent statement that Mr. Dzolic made to the OTP, he
10 made a correction to that very same paragraph that I've just referenced,
11 but he did not change that particular statement about receiving orders or
12 responding to orders issued by General Cermak.
13 Now, prior to confirming the accuracy of his statements,
14 Mr. Dzolic was given an opportunity to review the statements that he made
15 on the morning of his testimony, and he, in fact, made several
16 corrections -- clarifications to those. However, he did not change
17 anything in paragraph 37, which I've just referenced for you, or the
18 paragraph, which is paragraph 15 of his second statement, which makes
19 reference to paragraph 37 of the first statement. And then Dzolic
20 testified that if he was asked the same questions as he was asked in
21 those statements, if he was giving the same answers --
22 JUDGE ORIE: Mr. Russo, you're emphasizing at this moment how
23 serious we should take this portion of the statement. We don't have to
24 go through all the procedural details. I mean, if there's any need, the
25 other parties will ask you, but this is really -- just put to the witness
1 what is in his statement, and then you have already referred to the fact
2 that, in cross-examination, the matter was revisited, and let's --
3 because what you're actually doing - I hope you're aware of that - you're
4 emphasizing that there could be no doubt as to this is really what he
5 meant to say. Let's just put the statement to him.
6 MR. RUSSO: Yes, Mr. President.
7 Q. During his testimony, Mr. Dzolic testified on direct
8 examination -- this is at transcript page 8953, lines 20 to 21:
9 "I was invited by General Cermak to come there for a conversation
10 because I was subordinate to him in the daily tasks."
11 Now, I take it from what I've read in your expert report that you
12 endorse the retraction that Mr. Dzolic made on cross-examination, that he
13 was not subject to the orders of General Cermak, rather than endorsing
14 the statements he had made previously regarding his subordination to
15 General Cermak. Do I have that right?
16 A. That is correct. Dzolic was not subordinated to General Cermak,
17 and the military police in Knin was not subordinated to General Cermak.
18 It could not have been, for the reasons I have explained in detail in my
19 report in footnotes -- sorry, in paragraphs 541 to and including 549.
20 Q. Now, Mr. Kovacevic, I'd like your explanation for why you didn't
21 choose to endorse the evidence which Mr. Dzolic gave prior to his
22 cross-examination. Why, in your opinion, having looked at the evidence,
23 why not give that credit over his retraction on cross-examination?
24 A. First of all, I didn't do that at all. I simply wrote my expert
25 opinion. I did a legal analysis rather than dealing with Dzolic's
1 statements. I didn't use that as a basis for my expert report. It would
2 be a dilettante thing to do. I used legal regulations to draft a
3 professional expert report.
4 Q. I'm sorry. Are you indicating that you didn't rely on any of the
5 testimony given by any of the witnesses in this case, or any evidence
6 other than legal regulations, before you formed your opinion?
7 A. The laws and regulations, yes. I did refer to Dzolic's statement
8 or testimony, and I can tell you exactly in which part of my expert
9 report it refers to the specific cases. It is in Chapter 3.
10 JUDGE ORIE: I'll try to cut this matter short.
11 Mr. Russo, in the previous answer the witness said that he
12 explained, in his report, why the initial statement of Mr. Dzolic is
13 wrong. Now, you have referred to his statement and you have referred to
14 retracting that position, saying that Mr. Dzolic was not subject to the
15 orders, where earlier he said that he had to come for a conversation
16 because he was a subordinate to him. Now, it appears to me, but please
17 correct me when I'm wrong, that this witness prefers the second position
18 taken by Mr. Dzolic on the basis of his analysis, right or wrong, of the
19 legal structure and the legal texts. That seems obvious to me. Are you
20 seeking for any other reasons or -- because that's what the witness said,
21 Mr. Dzolic is wrong because I've written that in my report, what the real
22 subordination system was, so he must have been wrong with his first
23 answer. Whether this expert is right or wrong, and what the importance
24 is of Mr. Dzolic thinking that he was subordinate or not thinking that he
25 was a subordinate, is another matter. But what do you expect now the
1 witness to say, other than what he has said in his analysis of the legal
2 structure, legal texts?
3 MR. RUSSO: Well, Mr. President, first of all, I have a problem
4 with indicating to the Trial Chamber, in front of the witness, what the
5 purpose is of the questions I'm asking, because I don't want to tip him
6 off. But since the Trial Chamber wants to know, I'll indicate to you
7 now, since I'm going to move on with this line of questioning. What I'm
8 attempting to demonstrate is that Mr. Dzolic formed his opinions on the
9 basis of whatever he says he formed his opinions about, and that he was
10 unwilling to revisit the opinions he made or the conclusions he drew
11 based upon the Prosecution's evidence, and that, in fact, he's already
12 indicated by his testimony, at least that's what I'm attempting to get
13 him to confirm, that I believe he used the words "only a dilettante would
14 do that," would refer to the evidence which has been presented to change
15 an opinion he's already drawn. I'm trying to establish that the witness
16 came to a preconceived conclusion and did not make a neutral and
17 objective analysis of all of the evidence presented before forming his
19 JUDGE ORIE: Yes, which raises the issue as the relevance and
20 importance of the testimony of a witness in forming an opinion as an
21 expert on legal structure. That's the issue. I'd suggest that you
23 MR. RUSSO: If I could have just a moment, Mr. President.
24 THE WITNESS: [Interpretation] If I may, to conclude, I can tell
25 you that I did read the testimony in the case of arson of some houses in
1 Knin. I have read that part of the statements, and it's all in there.
2 MR. KAY: I'm sorry. I have to raise this in the approach of my
3 learned friend saying, I'm trying to establish that the witness came to a
4 preconceived conclusion and did not make a neutral and objective
5 analysis. When this whole questioning starts off with a description of
6 the witness saying one thing, and then on cross-examination, and I'll
7 refer Your Honours to it, at lines -- at page 9037, line 3, contradicting
8 the proposition that's being put by my learned friend as the basis of his
9 questioning. So to accuse the witness of coming to a preconceived
10 conclusion when the materials he relies upon are fundamentally flawed, as
11 the Court will see and as he's admitted in the preamble to the question,
12 that -- I'm sorry, but I don't want my witness confused or misled, or
13 this exercise to have some sort of impact on the proceedings, which is --
14 JUDGE ORIE: Yes, I do understand you. We could go on with this
15 for a long time. Apparently, the focus of Mr. Russo is somewhere, and it
16 might not have been very wise of me to invite him to explain that, or
17 perhaps he should have asked the witness to take off his earphones. That
18 would have been a better solution.
19 The focus should be on understanding what this expert tells us.
20 Now, if he has considered evidence given at another moment before this
21 Trial Chamber, then, of course, we could be very selective, emphasizing
22 what he said first and then emphasizing what he said in
23 cross-examination, still to be considered in the totality of the
24 evidence, which part of the evidence should be given more weight or less
25 weight. The Chamber will consider that in its entirety, but more or less
1 to put the most favourable portions of the evidence and then say, Why
2 didn't you follow that? Or put another portion and say, Why didn't you
3 follow that? I think this expert has provided us with his interpretation
4 of the rules, the applicable rules at the time, and what we see is that
5 we had various statements, that we have various pieces of evidence either
6 in favour of this interpretation or in that interpretation. Now, it's
7 clear what the interpretation of this witness is. And of course there's
8 nothing wrong with asking specific questions to the witness in relation
9 to earlier evidence, but let's try not to draw all kind of conclusions as
10 with what intention someone may have rightly interpreted or
11 misinterpreted a legal context, and why he didn't pay more attention to
12 this or more attention to that. Let's try to keep it clear, and let's
13 take 20 minutes to think it over, how to achieve that.
14 We'll have a break, and we'll resume at 10 minutes to 1.00.
15 --- Recess taken at 12.27 p.m.
16 --- On resuming at 12.57 p.m.
17 JUDGE ORIE: Before we continue, in relation to Articles 8, 9,
18 and 10, Mr. Russo, but I'm also addressing Defence counsel, quite a lot
19 of hairs have been split. New evidence may result in these hairs to be
20 split again, but perhaps with different results. Now, for the Chamber,
21 it is important to know how the hair looks once being split by A, B, C,
22 and D. However, the Chamber is not interested that much in a comparative
23 analysis of the tools used when splitting that hair, the light that was
24 there when we looked at the result at a certain moment. We should just
25 accept that the hair is split in different ways by different parties, by
1 different experts, by different witnesses. We'll look at it in its
2 entirety at the end, and the parties are not encouraged to see, unless,
3 of course, there's good cause to do so, whether there is another hair to
4 be found that could be split in the same context, or to again, as I said,
5 compare the splitting exercise in every single detail.
6 You may proceed, Mr. Russo.
7 MR. RUSSO: Thank you, Mr. President.
8 Q. Mr. Kovacevic, now, am I right in interpreting your report as
9 looking at the situation as it should be according to your interpretation
10 of Croatian laws and regulations; is that right?
11 A. Partly correct. This is only partly correct.
12 Q. Can you explain what other part is not correct?
13 A. In my methodology, I specified and clarified how the expert
14 report was drafted and what it contains.
15 Q. Mr. Kovacevic, I've read the portion of your report where you
16 indicate the methodology, but it's unclear to me whether you were
17 offering an opinion about the way the situation actually unfolded on the
18 ground or whether you were offering a position as to what was -- what
19 should have happened on the ground, according to legal regulations.
20 A. My opinion encompasses both aspects. I'm talking about my expert
21 report, and I'm saying that it encompasses both aspects of that
23 Q. So to be clear, you're offering an opinion about what, in fact,
24 General Cermak's authority was in Knin at the time relevant to the
25 indictment; is that what you're saying?
1 A. Yes, that's what I'm saying, yes. I don't understand what you
2 are asking me. What is it that you want to hear from me? Can you be
3 more specific, please.
4 Q. Well, you've answered my question, Mr. Kovacevic. Now, you've
5 come to the conclusion that General Cermak was not authorised to issue
6 orders to the military police; is that correct?
7 A. Correct.
8 Q. And if I showed you orders that were issued by General Cermak to
9 the military police, would that change the opinion that you've formed?
10 A. It wouldn't change that, and I have to explain why, perhaps.
11 There are some orders which --
12 Q. [Overlapping speakers]... stop you there. At this point, I'm not
13 interested in why you wouldn't accept -- or why you would not change your
14 opinion. I just want to be clear. And it's also your opinion that
15 General Cermak did not have authority to issue orders to the civilian
16 police; correct?
17 A. Of course it is correct. He was not part of the civilian police
18 system. How could he issue orders to them? He did not have any legal
19 right to do that. The Ministry of Defence [as interpreted] is a state
20 ministry, and it was well known who could issue order to the police, and
21 that's why we have the structure of the ministry and all police
22 administrations. There is no state in the world where a military will be
23 allowed to issue orders to the civilian police.
24 Q. So, Mr. Kovacevic --
25 JUDGE ORIE: Mr. Mikulicic.
1 MR. MIKULICIC: Yes, Your Honour.
2 I believe there's an error in translation in line 21, when it's
3 mentioned "the minister of defence." I suppose the witness mentioned
4 some other ministry.
5 JUDGE ORIE: Mr. Kovacevic, you said, talking about issuing
6 orders to the civilian police, you said, about Mr. Cermak, "he did not
7 have any legal right to do that." Then you referred to a ministry and
8 said this was a state ministry, and it was well known who could issue an
9 order to the police. What ministry were you referring to at that moment?
10 THE WITNESS: [Interpretation] The Ministry of the Interior.
11 That's the ministry I was referring to, and that was a state ministry, of
13 JUDGE ORIE: That clarifies the issue.
14 Please proceed, Mr. Russo.
15 MR. RUSSO: Thank you, Mr. President.
16 Q. Now, Mr. Kovacevic, if I showed you orders issued by
17 General Cermak to the civilian police, would that change your opinion?
18 A. No, it won't change my opinion. In my expert report, I specified
19 some situation from practice, showing that commanders issued orders to
20 civilian bodies which they were not authorised to do.
21 Q. Well, the point I'm attempting to make here, and let me see if
22 you agree with me: Irrespective of your opinion as to whether or not
23 those orders could legally be issued, did you consider the fact that --
24 the fact that they were issued, did you consider that that might indicate
25 that the situation on the ground is not as it is reflected in your
1 opinion of what it should have been?
2 A. I believe that I even found statements issued by some witnesses
3 who stated that those orders were treated as information by those who
4 received them, which is in keeping with my legal point of view and with
5 the legislation.
6 Q. Did you -- well, if I showed you evidence which indicates that
7 people who received orders from General Cermak treated them or at least
8 referred to them as orders or commands, would that change your opinion?
9 A. I wouldn't change my opinion. My opinion is exact, it's based on
10 regulations, it's based on statements, and every case can be looked on
11 its own, in its entirety, and we can then clarify anything that may not
12 be clear.
13 Q. Mr. Kovacevic, in the methodology section of your report, you
14 indicate that you conducted an analysis of "all documents and evidence
15 referring to the case in question." Can you tell me, in reviewing all of
16 that evidence, did you find any evidence at all which indicates, on its
17 face, that General Cermak did, in fact, have authority to issue orders to
18 the military police or the civilian police?
19 A. I did not find a single piece of evidence indicating that
20 General Cermak was authorised to issue orders to the police, and I did
21 find documents showing that he did.
22 Q. And did you find any evidence to suggest that the orders that he
23 did issue were, in fact, followed by the people he ordered to follow
25 A. I believe that there was something with regard to the restriction
1 of movement, the initial restriction of movement, but that was all
2 cancelled when the Police Administration of Split and Dalmacija warned
3 General Cermak that he was not authorised to restrict the movement of
4 people or issue any sort of passes to that effect. That was within the
5 purview of the Ministry of the Interior, or the Ministry of Defence, or
6 military commanders at the level of military districts when combat
7 activities are going on.
8 Q. Can you point me to the piece of evidence that you reference here
9 about a warning issued to General Cermak? Can you point me to that piece
10 of evidence?
11 A. I don't have it on me. I saw the document. I don't have it on
12 me. This document was issued by the Police Administration of Split and
13 Dalmacija, the chief of the Police Administration wrote to the MUP. I
14 was with the Ministry of Defence at the time. I got a call from the
15 Chief of the Main Staff, and I said that he, as a commander, did not have
16 the authority to restrict movement or issue passes to that effect, that
17 this was within the purview of the Ministry of the Interior, or the
18 Ministry of Defence, or the commander of the military district pursuant
19 to Article 150 something of the Law on Defence. And, finally, when
20 things came to a head, it was decided that some actions were against the
22 Q. I'm sorry, Mr. Kovacevic, am I correct in interpreting your
23 answer? Are you saying that you got a call from somebody in the -- the
24 Chief of the Main Staff? Are you saying that you were involved in this
25 warning to Mr. Cermak?
1 A. General Cervenko was the chief of the Main Staff, and he asked me
2 for a piece of legal advice when it came to that. He asked me about the
3 restriction of movement, who was in charge of that, and then I provided
4 my interpretation of the law and told him within whose purview was that.
5 General Cervenko, while he was Chief of the Main Staff and chief of the
6 military office, always consulted me about any military issues because I
7 was the one who had drafted all the laws and regulations within that
9 Q. Mr. Kovacevic, can you tell us where we can find in your report
10 any indication of the fact that you were issuing legal advice regarding
11 the actions of General Cermak at the time?
12 A. No, no. I did not put that anywhere in my report. You asked me
13 a very specific question. You asked me about a concrete case, and then
14 you followed up on that, and I then told you exactly how the whole
15 situation unfolded with this regard.
16 Q. When exactly did you get this call from General Cervenko
17 regarding the actions of General Cermak?
18 A. It's very difficult for me to remember as I sit here today. It
19 was sometime in August 1995.
20 Q. Thank you. Now, Mr. Kovacevic, did you review the --
21 JUDGE ORIE: Mr. Russo, it all started with the warning. Are you
22 able to identify, if at all, in what document we can find this warning?
23 Is it footnoted in your report?
24 THE WITNESS: [Interpretation] I've already told you that this is
25 not in my report. Mr. Russo asked me if I am aware of any such specific
1 and concrete situation, so I referred him to a document issued by the
2 chief of the Police Administration of Split and Dalmacija, who reacted
3 and said that General Cermak was acting against the law. This is not in
4 my expert report. I was answering Mr. Russo's question, and I
5 illustrated my answer with that example.
6 JUDGE ORIE: Yes, so you say we do not find a reference to that
7 document in your report.
8 Please proceed, Mr. Russo.
9 THE WITNESS: [Interpretation] Correct.
10 MR. RUSSO: Thank you, Mr. President.
11 Q. Mr. Kovacevic, did you -- in conducting your analysis, did you
12 consider the evidence provided by General Cermak in the interviews that
13 he gave to the Office of the Prosecutor?
14 A. Yes, I did read that statement. But what do you want to know,
15 what is your question?
16 Q. Well, in his 2004 interview with the Office of the
17 Prosecutor - that's Exhibit P2532 - this appears at page 20 in the
18 English, the B/C/S is also in the same transcript, General Cermak states
19 that General Gotovina had the entire military police under him. Do you
20 recall reading that part of General Cermak's interview?
21 A. I do not recall that detail, but I believe that he misspoke,
22 because it's not correct.
23 Q. Well, let me ask you this: Do you think -- is it your opinion
24 that he's lying about that or simply uninformed?
25 A. Well, look, General Cermak did not have military knowledge and
1 skills with regard to the legal issues and regulations. Maybe he
2 believed that to be the case. In other words, he did not have a full
3 legal picture which would enable him to answer all the questions
5 Q. Well, Mr. Kovacevic, wouldn't you agree with me that
6 General Cermak would have a better picture than you about what the
7 situation actually was in Knin and around the area in August of 1995?
8 A. What exactly are you referring to when you use the term
9 "picture"? What are you referring to? General Cermak did not have
10 complete knowledge and information about all the regulations, laws, and
11 orders that we are discussing today and which make part of my report. He
12 did not have that knowledge and information. Otherwise, he would not
13 have provided a statement of that kind, because full control of military
14 police, when you say that, that means that the military police is not
15 under the Administration of the Military Police and Lausic, which is
17 Q. Mr. Kovacevic, I'm not asking you to give me your opinion about
18 whether he's correct or not correct. First of all, you don't know what
19 General Cermak knows or doesn't know about the laws and regulations;
20 right? I mean, you're assuming that he doesn't know; is that correct?
21 MR. MISETIC: Mr. President.
22 JUDGE ORIE: Mr. Misetic.
23 MR. MISETIC: I don't think this is fair --
24 THE WITNESS: [Interpretation] You don't know it either, do you?
25 MR. MISETIC: The question posed to him, Is it your opinion
1 General Cermak is lying, and then he provided an answer as to what his
2 opinion was.
3 I'm sorry, if I can look at the question again. It says then --
4 then he follows up after he gets the answer by saying, I'm not asking you
5 to give me your opinion, which is exactly what he did ask for in the
6 prior question.
7 JUDGE ORIE: Well, that was one of the prior questions.
8 MR. RUSSO: I can respond, Mr. President.
9 JUDGE ORIE: The last question was about the better picture.
10 This line of questioning, Mr. Russo -- I'll be careful. What happens, as
11 a matter of fact, is the expert is -- when he talks about the full
12 picture, he's primarily talking about the legal picture. If you are
13 talking about the picture on the ground, you're apparently referring to
14 something else. And then to ask, Wouldn't he have a better picture, it
15 depends on what picture you have on your mind, because authority --
16 exercise of authority has both the legal aspects and can be viewed in
17 very factual terms as well. You can ask yourself what was the legal
18 authority of a person at a certain moment, and you can ask yourself
19 whether that person behaves in line with what you would consider to be
20 his legal authority or that he would, in his behaviour, show that either
21 he had a different opinion on his authority or that, with full knowledge
22 of the authority, he just didn't behave in accordance with it.
23 That's, in short, the situation I think we are talking about.
24 And let's try to clearly identify what we are talking about.
25 MR. RUSSO: Mr. President, at transcript page 78, line 6 to 8, I
1 asked the witness whether General Cermak would have a better picture than
2 you about what the situation actually was in Knin."
3 I don't know any other way to explain or express to the witness
4 the distinction I'm attempting to draw between what he says the situation
5 should be and what the situation actually was. I think the witness
6 understood my question. The answer he provided --
7 JUDGE ORIE: And then he immediately went to his view on the
8 matter. Going back to the legal authority, that's the reason why I tried
9 to explain - and, Mr. Kovacevic, you'll certainly have understood this -
10 what Mr. Russo, when he talks whether you have a clear picture on what
11 happened on the ground, what he's asking is whether Mr. Cermak would know
12 better than you or whether the behaviour that could be observed at that
13 time was in line with what you consider to be consistent with authority
14 in abstract legal terms. That's what Mr. Russo is trying to find out.
15 Mr. Russo, unless I've misunderstood you.
16 Could you -- so on the behaviour on the ground, could you tell us
17 whether Mr. Cermak would have a clear view on that, at least,
18 irrespective of whether he understood all the details of the legal
20 THE WITNESS: [Interpretation] He had a misperception. I don't
21 know what he meant when he said that. What did he mean when he said to
22 have under him, to have full control, what did he mean? I am saying that
23 he had a misperception from the point of view of the legislation of the
24 Republic of Croatia
25 It's very difficult to answer a question about a picture because
1 we have to go into that -- deeper into that to see what General Cermak
2 actually meant. If I knew that, I would be able to provide you a proper,
3 correct answer.
4 JUDGE ORIE: Mr. Russo is asking you not what he meant in saying
5 that, but Mr. Russo is asking whether -- what your knowledge and to what
6 extent you considered what actually happened on the ground, in terms of
8 THE WITNESS: [Interpretation] I have taken everything into
9 consideration. I said that in the methodology part. There were
10 situations where things were done against the law, and that was
11 subsequently corrected. Commanders would issue orders that they were not
12 authorised to do. When that was realised and established, there were
13 sanctions, and such orders were withdrawn. Laws are laws. They have to
14 be implemented. Regulations are regulations. One cannot and should not
15 issue orders for which they are not authorised. This is the principle
16 according to which a state with a rule of law functions. And if you
17 learn of such instances, you have to react.
18 JUDGE ORIE: One line in your answer said you cannot and you
19 should not issue orders you're not authorised to give. Would you agree
20 with me that you can, but that you should not?
21 THE WITNESS: [Interpretation] Yes, I agree, yes, you're right.
22 JUDGE ORIE: Proceed.
23 MR. RUSSO: Thank you, Mr. President.
24 Q. Now, Mr. Kovacevic, just a very short answer. Did General Cermak
25 or anyone on General Cermak's behalf tell you what General Cermak knew
1 about the subordination of either the military police or the civilian
2 police to him in August, September, October, and December of 1995?
3 A. I'm afraid I don't understand your question. You're talking
4 about a problem that General Cermak had? He was in reserve. He was out
5 of the action for a long number of years, and then he went down there.
6 Q. Let me stop you there. Did you talk to General Cermak about what
7 happened in this case?
8 A. No, never.
9 Q. Did anyone on behalf of General Cermak tell you what
10 General Cermak knew or believed about his authority in Knin and the
11 surrounding area between August and the end of 1995?
12 A. From documents that I perused, I could see that he was not very
13 clear about his authorities at first, but gradually he became much better
14 versed and he became more knowledgeable in that respect, which is only
15 understandable. He had been in reserve. Then he was appointed again.
16 He did not have --
17 Q. Mr. Kovacic, my answer [sic] was: Did anyone, on behalf of
18 General Cermak, tell you what General Cermak knew or believed about his
19 authority in the area at the relevant time-period?
20 A. What do you mean when you say "anyone"? I looked at documents,
21 and I told you what was my basis for answering your --
22 JUDGE ORIE: It's clear that you formed an opinion on the basis
23 of documents. The question of Mr. Russo is whether ever anyone came to
24 you, saying, Mr. Cermak considers this or this or that to be his
25 authority, whether anyone told you what Mr. Cermak thought about what his
1 authority was, not what you concluded from documents, but whether someone
2 came and told you.
3 THE WITNESS: [Interpretation] Yes, yes, okay. I believe that on
4 one occasion, the late General Cervenko told me, It seems to me that
5 General Cermak doesn't really know what his authorities actually are. It
6 was during an informal conversation when we were talking about the passes
7 that I mentioned before.
8 MR. RUSSO: Mr. President, I don't have any further questions. I
9 do have the printed-out pages of the material that I asked the witness to
10 read earlier. I have the entire section here. If we -- if the Court
11 wants to go through that exercise, I leave it to the Trial Chamber, but I
12 have no further questions for the witness.
13 JUDGE ORIE: Thank you, Mr. Russo.
14 Mr. Kay.
15 THE INTERPRETER: Microphone for the counsel, please.
16 JUDGE ORIE: Use your microphone, and then we could hear you.
17 MR. KAY: People are helping me, and I'm finding -- excuse me,
18 Your Honour. I'm just trying to find something that was e-mailed to me.
19 Ah, here it is.
20 Sorry, Your Honour. Just something that arose towards the end of
21 cross-examination by my learned friend, and I want to be exact with the
22 text, and finding it takes a little time.
23 JUDGE ORIE: Yes.
24 Re-examination by Mr. Kay:
25 Q. Mr. Kovacevic, you told us that in August 1995 you were working
1 in a certain position and General Cervenko had occasion to speak to you.
2 What was your position at that time in August 1995?
3 A. I was the chief of the Department for Supervision of the
4 Implementation of Regulations in the Ministry of Defence, the chief of
5 the Department for the Supervision of the Implementation of Regulations
6 of the Legal Administration of the Ministry of Defence.
7 Q. And General Cervenko would speak to you about what kind of
9 A. General Cervenko spoke to me daily, almost, on different legal
10 issues pertaining to the implementation of the existing regulations on
11 various issues. He frequently asked me to come to his office and sought
12 my legal opinion on the various legal issues.
13 Q. And in relation to the matter you raised concerning
14 General Cermak at the time, a legal issue that General Cervenko spoke to
15 you about, you made a comment about General Cervenko's view concerning
16 General Cermak. Could you tell us, as much as possible, what he said
17 about General Cermak's knowledge of his role?
18 A. I think that General Cervenko told me something to the extent
19 that it seemed to him that General Cermak was not aware of his authority,
20 as the garrison commander. He also said that it was understandable
21 because he was not an active serviceman and many things had changed in
22 the armed forces.
23 Q. Thank you. You were asked various questions concerning the
24 testimony of General Lausic concerning Article 9, and I want to read out
25 to you a passage of his testimony, transcript page 15606 to 15607. It
1 won't be -- it's not in your report, Mr. Kovacevic. It's --
2 General Lausic gave evidence earlier in the proceedings. You've been
3 asked about various aspects of testimony, and I want to put to you
4 something he said for your comment.
5 He was asked this question in relation to a document dated the
6 14th of August, and it was this:
7 "So just looking at that, in the terms of this order, your
8 commander of the 72nd in Knin, Budimir, was required to do a positive act
9 of subordinating the commander of the newly-established company of the
10 Knin Military Police to the most senior Croatian military commander by
11 function in the zone of responsibility, isn't that right, that required
12 him to do a positive act to ensure subordination took place?"
13 His answer was:
14 "Correct. Based on this order that I issued, all battalion
15 commanders from whose battalions, the newly-established platoons, and the
16 company in Knin were formed had to specify how this item 14 was to be
18 So this concerned subordination of any of the military police
19 battalions and the mechanism, if that was to be take place, how it was to
20 happen. What is your comment there on the answer of General Lausic?
21 A. This answer is correct, and I have also discussed it in my expert
22 report. It was necessary to issue an implementation order. This is what
23 General Lausic said as well. In his view, this was supposed to have been
24 done by the commander of the 72nd MP Battalion, and the other commanders
25 that the order would include, legally speaking, Lausic said that they
1 should have been determined, and he rightfully says that this was
2 supposed to have been carried out by the commander of the 72nd Battalion,
3 which he did not.
4 MR. KAY: Thank you very much. I have no further questions.
5 JUDGE ORIE: Thank you, Mr. Kay.
6 Mr. Misetic.
7 MR. MISETIC: Yes, thank you.
8 JUDGE ORIE: I'm looking at the clock. Could you give me an
9 indication as --
10 MR. MISETIC: I hope to finish in less than five minutes,
11 Mr. President.
12 JUDGE ORIE: Less than five minutes. I'm also looking at the
13 other Defence.
14 Please proceed.
15 MR. MISETIC: Thank you.
16 Further cross-examination by Mr. Misetic:
17 Q. Mr. Kovacevic, let me just ask you a few questions on the basis
18 of the famous Article 8 and 9 now. The 1994 rules, February of 1994, do
19 you agree with me that those were rules passed within the Ministry of
21 A. Of course, these are the rules of the Ministry of Defence, i.e.,
22 bylaws put in force by the minister of defence based on the amendments
23 and changes to the Law on Defence.
24 Q. As such, therefore, they are -- those rules are binding for
25 persons who are subordinated to the minister of defence within the
1 Ministry of Defence; correct?
2 A. He was supposed to bring those rules for all those employed in
3 the Ministry of Defence. It was based on Article 152 of the Law on
4 Defence. This was a bylaw which is binding.
5 Q. Okay. Let me ask you this: In and of itself, would the rules
6 require -- let me ask it a different way. General Lausic, as the chief
7 of the Military Police Administration, could not issue orders to
8 operational commanders or to HV commanders; correct?
9 A. General Lausic had nothing to do with the operative commands of
10 the HV. General Lausic was commander of the military police and the head
11 of the MP Administration. The military police, by virtue of the Law on
12 Defence of 1993, was excluded from the structure of the armed forces and
13 fell under the Ministry of Defence.
14 MR. MISETIC: Thank you very much.
15 Mr. President, I have no further questions.
16 JUDGE ORIE: Thank you.
17 Mr. Kovacevic, follow my example.
18 Questioned by the Court:
19 JUDGE ORIE: Mr. Kovacevic, you prepared your report. Did you do
20 the typewriting yourself, or did you deliver it handwritten?
21 A. I did it myself.
22 JUDGE ORIE: Did you give a printed-out copy to the Defence, or
23 did you give an electronic version to the Defence?
24 A. An electronic version, and the diagrams were on paper, and they
25 were later introduced into the report. I mean the diagrams Mr. Russo
1 inquired about.
2 JUDGE ORIE: Yes. The layout of the report, that is, division in
3 paragraphs, subparagraphs, et cetera, headers, footers, did you choose
4 your own layout, or was that -- or was it later re-done -- done again by
6 A. This was all my work, only at the end the paragraph were
7 enumerated, 1, 2, 3, and so on. That was the only addition.
8 JUDGE ORIE: Yes. Footers and headers were as you had created
9 them, or were you given a certain format?
10 A. That is all mine. Mr. Kay gave me the general structure that I
11 should follow, stipulating that I was free to work on it further to find
12 the best structure that I saw fit. This was followed through.
13 JUDGE ORIE: Yes. I asked you specifically about headers and
14 footers, whether you created them yourself, and were you given any
15 instructions in this respect, or use footers, or say that, It should be
16 page this out of so many? Or did you just find yourself the format and
17 the layout?
18 A. I have written many books and articles in my life. Therefore,
19 when I start to write something, I do it myself, then I re-read, go back,
20 put in things that I think are missing, put in headers, et cetera. I did
21 it all myself.
22 JUDGE ORIE: You did it all yourself. Now, looking at the copy
23 as it has been presented to this Court in your own language -- has the
24 witness a copy? Could we have a look at -- perhaps have the report,
25 whatever page it is, on the screen.
1 MR. KAY: He has a hard copy in front of him, Your Honour.
2 JUDGE ORIE: Yes. Was the layout changed after you had delivered
3 it, as far as you're aware of?
4 A. Nothing was changed, only the paragraphs were numbered.
5 JUDGE ORIE: Yes. And the line numbering, is that something you
6 put into your draft? Because we have a copy in which every page the
7 lines are numbered from 1 up to, well, up to over 40.
8 A. I'm not sure what you have in mind.
9 JUDGE ORIE: Could I then have a look at the copy you have to
10 see -- to compare whether we are really looking at the same document?
11 Could you just -- whatever page, one page, Croatian version, so that
12 I can have a look at it.
13 At the left, you see that all the lines of the pages are
14 numbered, 1, 2, 3, 4, 5, 6, up to -- depending on the number of lines.
15 Did you put this line numbering in there as well yourself?
16 A. That was done subsequently.
17 JUDGE ORIE: That was done subsequently. So someone has worked
18 on the document. Was there anything else that -- in the layout that was
19 changed, apart from this line numbering? Looking at the headers at the
20 top of the page, I see "-40-B/C/S." That is what you put in there?
21 A. I did that part. This was according to the Rules of this
22 Tribunal, in terms of what an expert report should contain. I asked for
23 these designations to be entered, stating on what list that document can
24 be found as evidence or on any of the lists, be it on the OTP or Defence
25 sides. Nothing was changed in relation to what I had handed over. I
1 only see that now they have numbered the lines, but not a single word was
2 changed in relation to what I had written; only the numbers.
3 JUDGE ORIE: More specifically, looking at the header which you
4 find at -- so not the numbers, but where it reads "IC-40-B/C/S," is that
5 what you had put in this document?
6 A. No, I did not enter that, and also the line numbering was not
7 done by me. I was told, though, that they would do that, before handing
8 it over to the Tribunal on the 24th of July, I believe.
9 JUDGE ORIE: Now, at the footer, "Pero Kovacevic, strucni
10 izvjestaj svjedoka," is that what you put in there or --
11 A. Yes, that was there from the start. When one is writing such a
12 piece of work, one needs to have the correct pagination and those other
13 things that one needs to have to prevent any additional insertion of
14 pages or deletion of pages. This is a measure of prevention when
15 compiling a piece of work.
16 JUDGE ORIE: Yes. So that's not what you were instructed to do,
17 but you did it on your own?
18 A. That was on my own initiative. You can also find that in the
19 many rules of intelligence services or in the minutes of parliamentary
20 sessions. There are clear standards in terms of what should be contained
21 in each page before such fora. This also applies to Master theses,
22 expert articles, books.
23 JUDGE ORIE: Yes. The cover page, the first page of your report,
24 the layout of that, are you the intellectual author of that? So not the
25 cover page in English, but the cover page saying "Page 1 out of 113," is
1 the layout -- is that what you have chosen as a layout for the cover
3 MR. KAY: He's looking at a different page, Your Honour.
4 JUDGE ORIE: I'm asking for the -- where it reads at the bottom
5 "Sdr 1 od 130," that page which started "Izvjestaj Za Zlucaj [phoen]
6 IT0690." That's the layout you have chosen for this page?
7 A. The first page corresponds to other expert reports which I saw
8 had been produced for the needs of this Tribunal. When I was
9 constructing the first page, I followed the layout of Mr. Theunens. I
10 looked at his cover page and the way he organised his expert report, in
11 terms of layout -- layout and technical approach.
12 JUDGE ORIE: Did you just see Mr. Theunens' report, or did you
13 use other expert reports as well to -- for choosing this layout?
14 A. The first page is based on the expert report by Mr. Theunens.
15 JUDGE ORIE: I'm asking you these questions because there is a
16 striking similarity in the layout of the report of Mr. Feldi compared to
17 yours. Do you have any comment on that?
18 A. It is not the same. My title is different from his, and I never
19 saw his expert report. In any case, I'm positive that the title is
21 JUDGE ORIE: Yes. I was talking about the layout rather than
22 about the title. Of course, I wouldn't expect you to present a report
23 under the same title. I'm just thinking in terms of layout on footnotes,
24 headers, cover pages. Have you any comment on that?
25 A. I don't have a comment. This was created the way I've explained.
1 JUDGE ORIE: Yes, thank you.
2 Mr. Russo, have the questions by the Bench triggered any need for
3 any further questions?
4 MR. RUSSO: No, Mr. President.
5 MR. KAY: I do, Your Honour.
6 JUDGE ORIE: Yes. I know that I went beyond the time. Let's --
7 I'm stealing a bit of time, but I'll let you -- I'll take the blame for
8 the Trial Chamber that follows.
9 MR. KAY: Well, I suppose Your Honour caused it because it arises
10 from Your Honour's questions.
11 JUDGE ORIE: Yes, I can imagine, yes.
12 Further re-examination by Mr. Kay:
13 Q. You've been asked several questions about the pages of your
14 report, the lines, what it looks like. Have you read your report?
15 A. Of course I did. I wrote it myself, and I read it myself.
16 Q. Has anyone inserted anything in your report that shouldn't be
18 A. No. I would not have signed it if anything was added to it. My
19 report is my report.
20 MR. KAY: Thank you.
21 JUDGE ORIE: Thank you, Mr. Kay.
22 Mr. Kovacevic, this then concludes your testimony in this court.
23 I would like to thank you very much for coming your long way to The Hague
24 and for having answered all the questions that were put to you by the
25 parties and by the Bench, and I wish you a safe trip home again. Thank
1 you for coming.
2 We'll adjourn, and we'll resume on Monday, the 28th of September,
3 9.00, Courtroom I.
4 [The witness withdrew]
5 --- Whereupon the hearing adjourned at 1.54 p.m.
6 to be reconvened on Monday, the 28th day of
7 September, 2009, at 9.00 a.m.