Tribunal Criminal Tribunal for the Former Yugoslavia

Page 26003

 1                           Thursday, 10 December 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The accused Gotovina not present]

 5                           [The accused Markac not present]

 6                           --- Upon commencing at 2.35 p.m.

 7             JUDGE ORIE:  Good afternoon to everyone.

 8             Mr. Registrar, would you please call the case.

 9             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon to

10     everyone in and around the courtroom.

11             This is case number IT-06-90-T, the Prosecutor versus Ante

12     Gotovina et al.  Thank you.

13             JUDGE ORIE:  Thank you, Mr. Registrar.

14             Before we continue hearing any evidence, the Chamber establishes

15     that Mr. Markac is not present and that Mr. Gotovina is not present.  The

16     Chamber was informed that the reasons for Mr. Markac and Mr. Gotovina not

17     being present in court today is that they wanted to protest against

18     events that happened yesterday in Croatia.  Whatever the Chamber knows

19     about it is hearsay, but in a motion which was filed this morning by the

20     Gotovina Defence, it was - and I'm summarising - it was stated that

21     yesterday arrests took place.  Among the persons arrested in Croatia were

22     members of the Gotovina Defence team, and that search and seizure --

23     search of premises occupied by members of the Defence team of

24     Mr. Gotovina, and that a search of the Gotovina Defence - could I say

25     "centre" - at least the premises where the Defence is prepared, that

Page 26004

 1     there were searches and there were seizures, including computers.  That

 2     is the information, again briefly, which is contained in the motion which

 3     was filed this morning.  I'll come to that motion in a minute.

 4             The first matter to be considered is whether or not to proceed in

 5     the absence of two of the accused, and let us first hear from the

 6     parties, whether there are objections against proceeding in the absence

 7     of these two accused.  You can want to make a protest at the same time,

 8     that not necessarily implies that you have instructed counsel not to

 9     proceed.  If we can't proceed -- that might also include that we can't

10     proceed on the matters raised in the motion.  I mean, there's not such a

11     thing as 75 per cent of the trial.

12             Mr. Misetic, could I hear whether you received instructions to

13     object against proceeding?

14             MR. MISETIC:  Mr. President, our instructions are to object to

15     proceeding with the testimony of witnesses.  However, my client has

16     instructed us to fully address the procedural issues involved and the

17     events that took place yesterday and that, as we speak, are continuing to

18     taking place.  And I can provide additional information to the Chamber on

19     that.

20             JUDGE ORIE:  Yes.  Well, perhaps it's good to -- at a later stage

21     to hear --

22             The Chamber will consider whether it accepts the conditions, if I

23     could call them like that -- of course, Mr. Gotovina can instruct you as

24     he wishes.  But whether the Chamber feels that it's bound to say, Well,

25     you may proceed, but only with those matters and not with other matters,

Page 26005

 1     how that should be considered in light of the use of the right of an

 2     accused to attend at his trial.  We'll consider that, I would say, in a

 3     moment, after we have dealt with some procedural matters.

 4             Could I receive information from the Markac Defence.

 5             MR. KUZMANOVIC:  Your Honour, our instructions are similar.

 6     Obviously, we're in our Defence case, and we have not received permission

 7     from our client to continue with presentation of evidence without his

 8     presence.  But similarly with General Gotovina's discharge to his

 9     counsel, we have been given the authority, at least as of today, to

10     discuss this procedural issue, so that's where we stand as well,

11     Your Honour.

12             Thank you.

13             JUDGE ORIE:  As I said before, the Chamber will consider whether

14     such conditions or such limits on how we could proceed or not are to be

15     understood, and the matter may be even more urgent for the Markac Defence

16     because you are presenting your evidence at this moment.  But I'm not

17     anticipating anything.  I'm just observing that your situation may be

18     even a bit different from the Gotovina Defence.

19             At this moment, therefore, we do not consider that we proceed at

20     this moment, against the wishes of either the Markac Defence or the

21     Gotovina Defence.  Again, what decision is to be taken at a later stage

22     is another matter.

23             Now, let me just -- yes.  I am just looking at ...

24             Mr. Misetic, the Chamber was copied on a form, "Absence from

25     court," it says, "due to illness," but that's only the title of that

Page 26006

 1     form.  The first box which is to be ticked if you're unable to attend

 2     court proceedings on this date due to illness, is not ticked.  The second

 3     box, which contains the text:  "I have discussed the matter with my

 4     counsel," is ticked by Mr. Gotovina.

 5             The third box reads:

 6             "I understand that I have a right to be present at all trial

 7     proceedings against me.  However, I waive my right to be present in court

 8     on this date and give my consent for the proceedings to continue in my

 9     absence, but in the presence of my counsel."

10             That box has been ticked.  And from what I see, it appears in

11     also the language of Mr. Gotovina.

12             I just put all this on the record so that I know that there's no

13     confusion about that.

14             Then we also have received an "Absent from court due to illness"

15     form apparently in relation to Mr. Markac, which is not -- none of the

16     boxes has been ticked.  We have a second page wherein the principal

17     officer states that he confirms receipt of this form from the detainee

18     named over at 1335, and that the detainee refuses to sign.  And as other

19     comments from the principal officer, Mr. Markac believes his human rights

20     have been violated.  He doesn't want his lawyer to continue with the

21     hearings in his absence.  This is Mr. Markac's decision, not the

22     lawyer's.  And then at the bottom, it says: "Non-medical."  Apparently

23     there's no illness at stake.

24             That is what the Chamber has received.

25             And as far as Mr. Gotovina is concerned, apart from how we have

Page 26007

 1     to interpret the form, Mr. Mikulicic, Mr. Markac says that he doesn't

 2     want his lawyers to continue, and there's no reservation whatsoever -- it

 3     says "with the hearings in his absence."

 4             MR. MIKULICIC:  Your Honour, earlier today, as soon as I learnt

 5     about the events, I visited Mr. Markac in the Detention Unit.  I

 6     explained the situation to him.  And after that, he made the decision the

 7     way he did.  I don't believe that the interpretation that the official

 8     has provided and put on paper is correct, in light of the instructions of

 9     my client, who said that he authorised us Defence counsel to attend the

10     procedural discussion about the problem, but he also instructed us not to

11     proceed with further presentation of evidence.

12             JUDGE ORIE:  Yes, whatever position the Chamber will take in this

13     respect.

14             Now ...

15                           [Trial Chamber confers]

16             MR. KEHOE:  Mr. President, excuse me.

17             With regard to the form filled out by our client - we're putting

18     this on the record - General Gotovina, on the second page, stated that:

19             "Mr. Gotovina told me, the writer, that his lawyer will explain

20     the matter in court."

21             Just for the sake of fullness of the record, and completeness, I

22     just put that on the record, because that is in the same space that

23     General Markac's comments have been noted by the Chamber.

24             JUDGE ORIE:  I'm just checking whether I overlooked the second

25     page or whether I did not receive it.  I hope, Mr. Kehoe, that you will

Page 26008

 1     understand that this information comes to us at this moment by e-mail

 2     and, therefore, has not got the thorough attention as we usually give to

 3     written submissions or written documents.

 4             MR. KEHOE:  Mr. President, my comments were not one of criticism,

 5     but just one of completeness.

 6             JUDGE ORIE:  Yes.  I missed the second page, as a matter of fact.

 7     And for the completeness of the record, it reads:

 8             "Mr. Gotovina told me that his lawyer will explain the matter in

 9     court."

10             And it also states that it apparently is not a medical issue.

11     Thank you for completing the record in this respect.

12             Now, any observations as far as the Prosecution is concerned to

13     proceed under the present circumstances?

14             MR. WAESPI:  Good afternoon, Mr. President.

15             We had absences from the accused in the past, and they were

16     represented by counsel --

17             JUDGE ORIE:  We want to proceed.  Whether we should also proceed

18     with hearing the evidence is to be considered if we are at a point where

19     we would restart hearing the evidence.  So, therefore, at this moment it

20     seems there are no objections against proceeding at least on the matters

21     as -- would you agree with that?

22             MR. WAESPI:  That there are objections from the Defence, yes.

23     But we are ready to proceed, and I think we should proceed with the

24     presentation of evidence.  That's my point.

25             JUDGE ORIE:  Yes, we'll come to that point perhaps soon.

Page 26009

 1             Mr. Misetic, let me just check again.  I started saying what the

 2     information was the Chamber had received.  Now, we have certainly

 3     received most of the information in the motion that was filed today,

 4     which gives an update on the investigatorial and prosecutorial activity

 5     of the Croatian authorities in relation to, among others, as I

 6     understand -- against members of the Gotovina Defence team.  I think I

 7     said that they were arrested.  This may be due to the fact the Chamber

 8     staff has informed the Judges about telephone conversations which have

 9     taken place yesterday evening, in which information on the events was

10     contained as well.  That was rather summary.  When I said that members

11     had been arrested, it may well be that -- because that's not to be found

12     in the motion, is it?

13             MR. MISETIC:  I would have to check the motion, Mr. President.

14     I can tell you that -- and I'm not an expert in Croatian law or Croatian

15     legal terminology, but Mr. Ivanovic has been arrested.  Two

16     investigators, I guess the word would be, were "detained ," but all three

17     had official Gotovina Defence documents and/or computers seized, and they

18     are all now in the possession of the Croatian government.

19             JUDGE ORIE:  Yes.  When you use the word "detained," that is that

20     you wanted to express that matters happened yesterday which did not allow

21     them to freely move where they wanted to go at all times; is that --

22             MR. MISETIC:  That and -- Mr. Mikulicic would know better than I,

23     but I understand the distinction also under Croatian law triggers whether

24     there is a right to counsel to be present or not, so the detainees did

25     not have a right to counsel.  Mr. Ivanovic, as an arrested person, did

Page 26010

 1     have his counsel present, but only after he arrived in Zagreb, after

 2     having been detained by the police on the highway travelling to Split and

 3     forcibly brought back to Zagreb.

 4             JUDGE ORIE:  Yes.

 5             Now, what the Chamber would -- let's try to clearly separate two

 6     matters.  The first is what the Defence is seeking in the motion; that

 7     is, the presence of Mr. Brammertz with all relevant material with him at

 8     the meeting of next Wednesday - I think it was Wednesday - with the

 9     Croatian government, the hearing.

10             MR. MISETIC:  Mr. President, I have to confess that because

11     events are fluid, were fluid, and continue to develop, we were going to

12     today appear in court and, pursuant to Rule 73, make additional oral

13     motions in terms of the relief we seek.  That was the status yesterday.

14     We obviously had all night and this morning to consider further, consult

15     with, I think, general counsels from various law firms that are involved

16     in this case.  Mr. Kehoe will address the Chamber on the specifics of the

17     legal remedies we seek and what we think the legal issues are here.

18             I can just state at this point that, first, it's not simply an

19     issue of the accused having issues with what transpired yesterday.  We

20     need to alert the Chamber that we, as Defence counsel, cannot proceed in

21     a situation where, for example, General Gotovina's communications with me

22     in court are passed on by me to Mr. Ivanovic, and all of that is now in

23     the possession of the Croatian government, presumably can be and might be

24     turned over to the Prosecution.  We have no idea what's in the hard

25     drives of the computers that were seized, and we have no assurance at

Page 26011

 1     this point at this Tribunal that anything we say, anything we communicate

 2     from the courtroom is not going to be protected under the attorney-client

 3     privilege and a work-product document.

 4             JUDGE ORIE:  That's I think -- yes, it's clear to the Chamber

 5     that the present situation, which means members of the Gotovina Defence

 6     team not free to move as they wish, is that still the situation?

 7             MR. MISETIC:  Mr. Ivanovic, as I just received the chat, is still

 8     under arrest and is still in a police station, and has been detained

 9     since approximately 1.00 p.m. -- I should say has been arrested since

10     approximately 1.00 p.m. yesterday.

11             I do feel the need, Your Honour, to correct the record, in terms

12     of the facts that you laid out, just so that there's no confusion.  The

13     Gotovina Defence has two offices in Zagreb.  One of those offices was

14     seized yesterday, and seized in the sense that police were present and

15     sealed the office, waiting for Mr. Ivanovic to be brought back forcibly

16     from Split, because as I understand under Croatian law, an attorney --

17     when an attorney office is searched, there are certain procedures and he

18     needs to be present.  There is a second office which has not yet been

19     searched, although obviously we do not know what additional measures the

20     Croatian government may take.  But as I understand it, the search of the

21     law office -- the first law office was completed sometime around

22     1.00 p.m. today.  So in addition to the three computers seized yesterday,

23     I am not certain whether additional computers were seized, but I did want

24     to correct the factual record on that point.

25             In terms of the relief we seek, I would, with your leave,

Page 26012

 1     Mr. President, ask Mr. Kehoe to address that matter.

 2             JUDGE ORIE:  Yes.  Let me first try to see whether there's an

 3     update as far as the facts are concerned.

 4             Mr. Ivanovic is still not free to move as he wishes.  Any other

 5     members of the Gotovina Defence team which are in a similar situation, as

 6     far as you're aware of?

 7             MR. MISETIC:  As of this morning, no, Mr. President, but they

 8     were detained and released yesterday.

 9             JUDGE ORIE:  Yes.  And these were which members of the --

10             MR. MISETIC:  One is a -- one is Jozo Ribicic, who the Chamber

11     will see his name on a few of the statements that the Defence put in

12     evidence.  The other is a former member of the Gotovina Defence,

13     Mr. Zeljko Hucic.  But, nevertheless, I don't know what information was

14     seized from him, so -- he did not have a computer seized.  Mr. Ribicic

15     and Mr. Ivanovic did have computers seized, and they continue to be

16     members of the Gotovina Defence.

17             JUDGE ORIE:  Yes.  Now, not to say that that is critical, but

18     since the matter has been raised in relation to Mr. Ivanovic before, was

19     Mr. Ribicic accredited?

20             MR. MISETIC:  Not accredited to appear in the courtroom, but

21     disclosed to the Registrar on the list of members of the Gotovina --

22             JUDGE ORIE:  That's like the first step, as with Mr. Ivanovic,

23     whereas at a later stage, as the Chamber understands from the Registry,

24     primarily for having access to certain systems, that then a formal

25     accreditation letter was issued.

Page 26013

 1             MR. MISETIC:  There's that, but there's also a very critical

 2     thing for the Chamber, which is by disclosing these individuals to the

 3     Registrar, pursuant to the Chamber's order of the 14th of July, 2006,

 4     that is how we control and guarantee the Chamber the security of witness

 5     information, protective measures, et cetera, so --

 6             JUDGE ORIE:  There's no question about that.  But just to say

 7     that it has been argued, whether that argument is valid or not, that the

 8     accreditation, only the second one, would be valid and not the first one,

 9     I'm not pronouncing anything.  I'm just finding out whether

10     Mr. Ribicic -- what formalities were fulfilled.  And I do understand that

11     he was reported to the Registry as a member of the -- he was identified

12     and reported to the Registry as a member of the Gotovina Defence team.

13             MR. MISETIC:  Yes, he was, as was Mr. Hucic, who was then

14     subsequently -- as we make changes in the team, we are to update the

15     list, and his name was subsequently removed.

16             JUDGE ORIE:  Yes.  And since when is that?

17             MR. MISETIC:  I believe it is since -- I'll have to check, but I

18     believe it's since April of this year.

19             JUDGE ORIE:  And Mr. Ribicic was identified as a member when?

20             MR. MISETIC:  That would be the first filing, so July of 2006.

21             JUDGE ORIE:  Yes.  Thank you.

22             Now, apart from what to do with the information, but is there any

23     other update as far as the facts are concerned?

24             MR. MISETIC:  I'm not positive anymore how much I've said and how

25     much is in the motion, but I don't believe so, Your Honour.  And you'll

Page 26014

 1     forgive me if I've forgotten something, I will alert you, but that is

 2     essentially the status of affairs.

 3             JUDGE ORIE:  Yes.  But there's nothing on this on your mind at

 4     this moment.  You say, Well, this factual update should be known to the

 5     Chamber at this moment.

 6             MR. MISETIC:  Yes.

 7             JUDGE ORIE:  Okay.

 8             Now, the Chamber is aware that there are various aspects involved

 9     in the present situation.  But before I elaborate on that, is there any

10     factual information the Prosecution would like to add to what the Chamber

11     knows until now?

12             MR. WAESPI:  No, Mr. President.

13             JUDGE ORIE:  Then early -- yes, Mr. Mikulicic, any further

14     factual information to be provided?

15             MR. MIKULICIC:  No, Your Honours, I have nothing further to add.

16             I would like to say a couple of words in order to explain the

17     Markac Defence position regarding this situation.

18             JUDGE ORIE:  I would suggest that I first identify areas of which

19     the Chamber, at this moment, found to be involved in the present

20     situation, and then, of course, you will have an opportunity to further

21     comment on certain matters.

22             Earlier, the Chamber spent quite some time on the issue of

23     immunity.  The immunity issue is still prominently there at this moment.

24     Although the Chamber usually does not give any insight in its working and

25     its methods, a meeting was scheduled for tomorrow to finalise the draft

Page 26015

 1     on the last motion for a restraining order to Croatia.  That is an issue

 2     which was involved in the present situation and is still, as I said,

 3     prominently involved.

 4             However, the new facts add to that, that there may be legitimate

 5     concerns about the duties the Gotovina Defence has in relation to

 6     confidentiality -- both confidentiality to be observed as a result of

 7     orders of this Chamber, that is, confidential information about identity

 8     of witnesses, it's confidential information about documents which were

 9     admitted under seal.  The whole lot of that is now also, I would say, in

10     the core of the matter.

11             A third matter which now becomes very important is also the

12     disturbance in the confidentiality of the relation between counsel and

13     client, professional privilege.  That's a third area I would like to

14     point out the Chamber is aware of, that it is affected or most likely be

15     affected by the present situation.  Of course, we do not know yet what

16     has been done with the computers and with the information, but there is a

17     great likelihood that that matter is being affected.

18             The fourth element the Chamber discerns is practical operation of

19     the Defence and the preparation of the Defence, what material is not

20     available anymore, what communications are disturbed under the present

21     circumstances.  That is a fourth area the Chamber has identified as being

22     affected by the present situation.

23             Now, having identified these areas, having looked at what is

24     alleged in the motion by the Gotovina Defence, the situation may be -- of

25     course, a lot depends on the solidity of the factual basis of the

Page 26016

 1     allegations.  The Chamber can't anticipate on that in any way.  We've

 2     heard, until now, the position of the Gotovina Defence.  But if these

 3     allegations - and I emphasise "if" - were true, the Chamber considers the

 4     situation of -- the situation as very serious.  Let there be no doubt

 5     about that.  That's also the reason why we pay immediate attention to

 6     this matter.  The Chamber was alerted -- received a courtesy copy

 7     earlier, and immediately started thinking about what happened.

 8             Now, one remedy sought is in the motion.  The Chamber will

 9     understand that there may be more remedies, but before we continue with

10     other remedies, the Chamber would first like to briefly consider the

11     remedy sought, which is Mr. Brammertz to appear on the hearing next week

12     with Croatia and to bring all relevant material with him.  That is the

13     remedy sought to the subpoena duces tecum.

14             My first question, Mr. Kehoe, to you:  Any other remedies you

15     would seek, would they make moot the first remedy?

16             MR. KEHOE:  They would not, Mr. President.

17             JUDGE ORIE:  That, under those circumstances, I would like to

18     briefly pay attention to the first remedy sought.

19             Mr. Waespi, could you inform the Chamber whether Mr. Brammertz

20     either spontaneously - I think his position allows him to do so - or if

21     being invited by the Chamber, or if being strongly requested by the

22     Chamber, would appear and bring the documents -- what to do with them is

23     a second matter, but at least to bring them, that's the first question,

24     because if we're talking about a subpoena, a subpoena is usually issued

25     if a person is not voluntarily doing what he is expected to do.

Page 26017

 1             Now, I earlier had on my list to -- that first to inquire with

 2     you whether Mr. Brammertz can be reached.  Well, since I happened to see

 3     him in the corridor 20 minutes ago, he cannot be far away.

 4             Can you answer that question already, or would you first have to

 5     consult with Mr. Brammertz?

 6             MR. WAESPI:  Mr. President, I don't know about the availability

 7     of the Prosecutor, but as you know, we received a courtesy copy of the

 8     motion last night.  It's been officially filed today.  We are looking to

 9     it, and we'll reply in writing by the end of tomorrow.

10             JUDGE ORIE:  Yes, but that's not an answer to my question.  And

11     the proceedings -- my question is -- let me be clear.

12             Of course, the Chamber will decide on the motion.  The Chamber

13     will have to decide, and then, of course, we'll have to hear the response

14     by the Prosecution.  However, if Mr. Brammertz would appear, then, of

15     course, that remedy would be moot.  And I can imagine, in view of the

16     allegations raised, that there is a certain interest in -- even without

17     even being invited, but certainly when invited or even strongly

18     requested, to come, which would make the first -- but if you say -- I

19     would invite you to inquire that with Mr. Brammertz and give an answer to

20     that question.  And if the answer is, Under no circumstances I will

21     appear here, but only if ordered, subpoenaed, call it whatever you want

22     to call it, by the Chamber, then it's clear that the Chamber will have to

23     decide the matter, and of course we would decide that matter after we

24     have heard the response by, in this case, the Prosecution.

25             The question is for Mr. Brammertz.  The response is expected from

Page 26018

 1     the Prosecution.  In this case, I'm not going into any details at this

 2     moment about the internal hierarchy, but I would address you to hear

 3     about the response, and I also address you to inquire with Mr. Brammertz

 4     whether he would not come.

 5             MR. WAESPI:  Yes, I'll do that, if possible by the end of

 6     tomorrow in a filing.

 7             JUDGE ORIE:  No.  Mr. Waespi, I'm asking you to inquire with

 8     Mr. Brammertz.  And if he wants to think about it for a day, that's fine.

 9     That means that he does not express himself in the way I mentioned; that

10     is, that he has not made up his mind as to whether or not to appear, if

11     either spontaneously, or if being invited, or if being strongly requested

12     to do so.  So we would like to have an answer to that.  If he has not

13     made up his mind, the answer is that we do not know, and then we have to

14     proceed with the -- and then, of course, the Chamber will -- under those

15     circumstances, will set the time-limit for a response.

16             MR. WAESPI:  Yes.  I have -- because you ask me, I have talked to

17     him yesterday, after we have received the filing, and the result was we

18     will file our response by the end of Friday.  If you want a response

19     earlier, I don't know what his disposition -- his state of mind is today.

20     If you want an earlier response, I can get back to him.  But we have, as

21     of yesterday, not made up our mind, except for the fact that we would in

22     respond in writing, if invited to do so, by the end of tomorrow.  That's

23     the current state of mind I have.

24             JUDGE ORIE:  You're invited to seek this point of view to be

25     reconfirmed, because you say it's the current state of mind you have.  If

Page 26019

 1     that is the current state of mind of Mr. Brammertz, we'd like to know

 2     that as quickly as possible so that we can further consider how to

 3     proceed.

 4             MR. WAESPI:  Thank you.

 5             MR. KUZMANOVIC:  Your Honour.

 6             JUDGE ORIE:  Yes, Mr. Kuzmanovic.

 7             MR. KUZMANOVIC:  I wanted -- before we stray a little further, I

 8     wanted to add, the Chamber mentioned on page 13, line 3:

 9             "The third matter which now becomes very important is also the

10     disturbance in the confidentiality of the relation between counsel and

11     client, professional privilege."

12             If the Gotovina computers, and we assume that they do, contained

13     information over which there is a joint Defence privilege, then that

14     privilege has been compromised as to our client as well.  So we are a

15     part of that third prong that the Court has identified.  And we do have

16     share, obviously, information, we have joint issues that we deal with in

17     the Defence, so that issue with respect to the compromisability of

18     information related to our client is also very, very important.

19             JUDGE ORIE:  I see that point.  Of course, we will have to

20     consider that.  At the same time, it seems to be a very interesting issue

21     that if you share it with others who also have a privilege, to what

22     extent it has been shared with outsiders or not, but that is a matter, I

23     take it, for this moment that you put on the record, that the violation

24     counsel-client privilege may have a further effect on -- not just limited

25     to the Gotovina Defence, but could include the other Defence teams as

Page 26020

 1     well.

 2             MR. KUZMANOVIC:  That's correct, Your Honour.  And for those

 3     reasons and for those potential issues, I've had to notify my law firm's

 4     general counsel of this situation.  So we will also be weighing in

 5     through our general counsel on that, because it affects -- directly

 6     affects our lawyer-client relationship and the privilege.

 7             JUDGE ORIE:  Yes.  Everyone is busy, that's for sure.

 8             I'd now like to --

 9                           [Trial Chamber confers]

10             JUDGE ORIE:  I earlier said that I would deal with the first

11     remedy sought and then with the others.

12             Mr. Kehoe, the Chamber invites you to make any further

13     submissions, even if that would result in oral motions.

14             Two matters I would like to bring to your attention.  The first

15     is that where I pointed at the four areas the Chamber considers to be of

16     a kind to experience an impact of the present situation, of course, I've

17     not explained all the things that are on the mind of the Chamber, so,

18     therefore, pointing at them is to indicate that there may be -- again

19     depending on the factual basis of it, that there may be a serious

20     situation, and of course we are thinking about more than just identifying

21     privilege or that.  I mean, the Chamber, as a professional bench, is, of

22     course, aware of the major issues involved in privilege, in obligations

23     to keep confidential, what the limits are; that if beyond your will you

24     lose control of certain material, that you're not mastering the

25     situation.  I mean, just to tell you that the Chamber has more on its

Page 26021

 1     mind, and that we'd first like to have a brief introduction on reasons

 2     and remedies sought.  The second is that the Chamber, after having heard

 3     your submissions, will consider whether or not we would continue by

 4     hearing the submissions orally or whether the Chamber would be in need of

 5     further written submissions on the matter.

 6             MR. KEHOE:  Yes, Mr. President.

 7             JUDGE ORIE:  We reserve our position in relation to that, and

 8     you're invited to proceed.

 9             Mr. Waespi.

10             MR. WAESPI:  Thank you, Mr. President.

11             Can we briefly turn into private session, please.

12             JUDGE ORIE:  We turn into private session.

13                           [Private session]

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 26022

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21                           [Open session]

22             THE REGISTRAR:  We're back in open session, Your Honours.

23             JUDGE ORIE:  Thank you, Mr. Registrar.

24             Mr. Kehoe, I invited you to make any further submissions.  And

25     since I will further consult with VWS, I take it that whatever the

Page 26023

 1     outcome should be, that you will take that into account if --

 2             MR. KEHOE:  Yes, Mr. President.

 3             JUDGE ORIE:  Please proceed.

 4             MR. KEHOE:  Thank you, Mr. President.

 5             Just before I begin, I was given a note by my colleague

 6     Mr. Misetic to update the Chamber on the facts.  Mr. Ivanovic has now

 7     been released and is in our Zagreb office.  Should the Chamber have any

 8     additional inquiries the Chamber would like to pass on to him, we would

 9     be glad to do so, because he is sitting in our offices in Zagreb now, as

10     I said.

11             The other remedies that we would request orally, Mr. President,

12     and I understand that the Chamber has asked Mr. Brammertz or invited

13     Mr. Brammertz to attend --

14             JUDGE ORIE:  Well, we have not done yet, but --

15             MR. KEHOE:  But contemplating that.

16             JUDGE ORIE:  Yes.

17             MR. KEHOE:  I would ask the Chamber to likewise think about

18     asking Mr. Bajic to make an appearance on Wednesday, as we requested in

19     paragraph 8 of our subpoena.

20             With regard to remedies that we request specifically right now,

21     we ask for a cease and desist order, or, at the minimum, a temporary

22     restraining order, for several things, and we ask for this pursuant to

23     Rule 73:  At this juncture, to seize all actions against Mr. Ivanovic at

24     this juncture; and stop all searches of records and computers that the

25     Republic of Croatia has in their possession; and to stop any

Page 26024

 1     contemplated -- or cease and desist from any contemplated searches they

 2     may think about doing against Gotovina Defence offices and/or personnel.

 3     Those are the immediate issues that I believe are necessary,

 4     Mr. President, in order for us to assess where we are vis-a-vis any

 5     potential breaches of the attorney-client privilege.  And we ask for that

 6     cease and desist order to stay in place until the Chamber has made a

 7     final decision on these matters.

 8             So for lack of a better term, and to be somewhat pedestrian, we

 9     ask for the Chamber to just freeze in place everything that is going on

10     right now and order the Republic of Croatia to take no further steps

11     until further orders from this Court have been issued.

12                           [Trial Chamber confers]

13             JUDGE ORIE:  Yes, Mr. Kuzmanovic.

14             MR. KUZMANOVIC:  Thank you, Your Honour.

15             I don't mean to interrupt my colleague.  Along those lines, we

16     didn't obviously file the motion; we joined in support of the motion.

17     But we also would like any preventive measure -- or we would like a

18     preventative measure of the prohibition of this happening to us,

19     including our offices in Zagreb and members of our team as well, one of

20     whom is potentially -- or has been discussed by the Office of the

21     Prosecutor and by the Croatian officials as well.  And I'm not going to

22     get into the details of that.  But the potential exists for the same

23     thing to happen to us, and that's something we obviously would want to

24     avoid.

25             JUDGE ORIE:  Yes.

Page 26025

 1             Mr. Kehoe, Mr. Kuzmanovic was concerned whether he interrupted

 2     you, but I got the impression that you had raised what additional

 3     remedies on the same grounds, as I understand --

 4             MR. KEHOE:  Yes, Mr. President.

 5             JUDGE ORIE:  -- and the factual grounds to be completed by the

 6     information which was provided today to this Chamber.

 7             MR. KEHOE:  Yes, Mr. President.

 8             JUDGE ORIE:  Yes.  Let's then check exactly on whether -- yes.

 9     Let's take it step by step.

10             The presence of Mr. Bajic, you said, as you had requested --

11     well, of course, it was not part of the remedy you sought in the motion,

12     but you suggested that it might be good to have Mr. Bajic present.  We

13     have no idea yet on whether Mr. Bajic would come voluntarily or not.

14                           [Trial Chamber confers]

15             JUDGE ORIE:  It seems to the Chamber that although not having yet

16     received the answer of the Prosecution, but as matters stand now and not

17     in the possession of their position, it seems to be reasonable to prepare

18     for Mr. Bajic's presence.

19             Now, any specific form?  If the Chamber would invite the

20     Government of Croatia to include Mr. Bajic in the delegation which will

21     be present next week, would that do, or would you like to have anything

22     else?  I want to be clear on what remedies and in what form you're

23     seeking them.

24             MR. KEHOE:  With regard to Mr. Bajic, Mr. President, be it by

25     invitation or by a subpoena, we would again ask for akin to a subpoena

Page 26026

 1     duces tecum, for him to bring with him any and all instructions and

 2     memorandum received from the Office of the Prosecutor, similar to the

 3     information as detailed regarding the documents we requested from

 4     Mr. Brammertz.  So, essentially, we would like from Mr. Bajic that which

 5     he received from Mr. Brammertz concerning this continuing investigation

 6     into a multitude of individuals and people, not the least of which is the

 7     individuals that we discussed today.  We would like Mr. Bajic, as with

 8     Mr. Brammertz, to appear before the Chamber and that the parties have an

 9     opportunity to question Mr. Bajic and Mr. Brammertz, and for the Chamber

10     to do as well.

11             So it would be a subpoena duces tecum, or if it's an invitation,

12     an invitation to bring with him the documents that he has on this issue.

13             JUDGE ORIE:  Yes.  Now, let's be very practical.  An invitation

14     is sent rather quickly, if we decide to do so.  A subpoena is, of course,

15     a bit of a different matter because that has to be drafted.  Usually, if

16     a request for a subpoena is there, unlike a request for an invitation,

17     that a decision is taken on that, that we have to go through all the

18     requirements usually applicable for issuing a subpoena.  It would then

19     have to be translated, it would have to be formally served first on the

20     Government of Croatia and then served upon the person involved.  I

21     suggest to you that the Chamber, without delay, further inquires in a

22     similar way as I did with Mr. Brammertz, inquire whether Mr. Bajic would

23     appear if invited to do so.  And perhaps to add to that, that the

24     Government of Croatia is invited to make him a member of the delegation.

25             MR. KEHOE:  Mr. President, I do appreciate the practical concerns

Page 26027

 1     for issuing a subpoena, and that's why we didn't ask for a specific

 2     remedy and just put it on the table as something for the Chamber to

 3     consider.

 4             JUDGE ORIE:  Yes.  This, then, also means that we'll not start

 5     working immediately on the subpoena.  It may well be that within a couple

 6     of hours we would know that we would not do without a subpoena.  But

 7     under those circumstances, of course, we'd have to ask the Prosecution

 8     whether there would be any objection against such a motion to issue a

 9     subpoena.

10             Mr. Waespi, you know the circumstances, as far as to say it

11     inelegantly, to get Mr. Bajic into the courtroom, what would be the

12     position if it would be necessary to make him appear in the courtroom

13     unless being subpoenaed?  Would you oppose against issuing such a

14     subpoena?

15             MR. WAESPI:  As with the subpoena in relation to Mr. Brammertz,

16     this is based, I think, on paragraph 1 or 2 on the factual speculation,

17     I'll call it like that, on why a subpoena has to be issued on the facts.

18     So having said that, Mr. Bajic appeared as a witness here.  I don't think

19     he was subpoenaed.  So, you know, if he chose voluntarily to come -

20     again, I'm not talking about the facts supporting a subpoena - I don't

21     think we would object to that.

22             JUDGE ORIE:  Yes.  You would say even where you reject the

23     allegations, that nevertheless you would not oppose against the issuance

24     of a subpoena if need would be.  Usually, we do not discuss subpoenas in

25     public, but, Mr. Kehoe, that's, in the present situation, difficult to

Page 26028

 1     avoid because we can't lose pace at this moment.  That is clear.

 2             Then, let's take it, as I said, step by step, and I started with

 3     page 21, lines 7 to 9.

 4             You asked for a cease and desist order or a temporary restraining

 5     order pursuant to Rule 73.  You're seeking that it would be ordered to

 6     cease all actions against Mr. Ivanovic.  That's one.  Second, you seek an

 7     order that all searches of records and computers that the Republic of

 8     Croatia has in their possession.  I understand this to be that you are

 9     seeking an order that the Republic of Croatia stops searching of the

10     content of the computers and the content of the records which they have

11     seized in the premises where the Gotovina Defence works --

12             MR. KEHOE:  As well as the individual computers taken from these

13     individuals, as they have information contained thereon.

14             JUDGE ORIE:  Yes, including the content of computers which were

15     seized from members of the Gotovina team, even if not found in the

16     premises, the offices in which the Gotovina Defence works.

17             Let me see whether we have now --

18             MR. KEHOE:  Just by some factual clarification, Mr. President, as

19     to what I'm talking about on that --

20             JUDGE ORIE:  Let me -- if you allow me --

21             MR. KEHOE:  I'm sorry, my apologies.

22             JUDGE ORIE:  -- I would like to ...

23             Yes.  What you then next are seeking is a "cease and desist"

24     order, to desist from any future searches against Gotovina Defence

25     offices and/or personnel.  This is a separate category.  That's not stop

Page 26029

 1     searching what has already been seized, but to cease and desist from any

 2     future searches and seizures.  And the temporal scope of such orders

 3     would at least be until the Chamber has made a final decision on these

 4     matters.

 5             And that would cover all of the remedies you are seeking?

 6             MR. KEHOE:  That's correct, Mr. President.

 7             JUDGE ORIE:  Yes.  Mr. Kehoe, you said you -- let me see.  You

 8     would like to add something.

 9             MR. KEHOE:  Just with regard to the computers, there was the

10     office computers, and I do believe that Mr. Misetic referred to this.

11     There was a computer that was in the possession of Mr. Ivanovic that had

12     information, as well as Mr. Ribicic, as they were travelling.  Those were

13     two separate computers that were Gotovina Defence computes that were

14     seized.  Just by way of clarification, I was attempting to -- or maybe

15     inartfully attempting to refer to those items; not just stuff in the

16     office, but computers that the Republic of Croatia took from these

17     gentlemen.

18             JUDGE ORIE:  Yes, that's how I had understood.  And when we're

19     talking about Gotovina Defence members, we are talking about members

20     present and former members, with the purpose of protecting any

21     information which is still with them.

22             MR. KEHOE:  Just by one other point of clarity.  When I was

23     asking for a "cease and desist" order on all actions against

24     Mr. Ivanovic, I was referring to, obviously, this most recent arrest, but

25     also a request to cease and desist or suspend the proceedings that are

Page 26030

 1     currently underway at which Mr. Misetic was scheduled to go to tomorrow,

 2     or at least attend tomorrow.

 3             MR. MISETIC:  Yes, Mr. President.  I'm concerned for

 4     Mr. Ivanovic, because as the Court is aware, I was supposed to testify

 5     tomorrow.  In light of what transpired today, I felt compelled to appear

 6     before the Chamber on these matters.

 7             I don't know what is going to take place tomorrow, but, again,

 8     even with respect to those proceedings, we don't ask that they be, at

 9     this point, terminated, but if we could, as Mr. Kehoe said, just stop

10     things from continuing to unfold until such time as both the Chamber and

11     the parties here can establish factually what exactly has transpired in

12     the last two days and what led up to what transpired.  I think it would

13     be very important, because absent that, then the potential injury could

14     be such that by the time the Chamber issues a final ruling, the damage

15     has already been done and information has already been reviewed and

16     perhaps even internally disseminated within the Croatian government.

17             JUDGE ORIE:  I took the words "all actions against Mr. Ivanovic"

18     to include all investigative and all prosecutorial action pending or

19     contemplated.

20             MR. MISETIC:  That's correct, Mr. President.  Thank you.

21             JUDGE ORIE:  Thank you.

22             I am now looking at the parties, whether there's any other matter

23     at this very moment to be raised, and then I'll confer with my colleagues

24     how to proceed.

25                           [Trial Chamber and registrar confer]

Page 26031

 1             JUDGE ORIE:  Any other matter at this moment to be addressed?

 2             MR. KEHOE:  No, Mr. President.

 3                           [Trial Chamber confers]

 4             JUDGE ORIE:  The Chamber will need some time to consider the

 5     present situation.  And I add again to that, that the situation,

 6     irrespective of whether the allegations have any ground, that the

 7     situation is considered to be a serious one, a very serious one.

 8             I add to that I would have one or two more questions for the

 9     Gotovina Defence of a rather technical nature.  We would then suggest

10     that we would adjourn for up to an hour or five-quarters of an hour, and

11     then return into the courtroom.  At the same time, I would invite the

12     Gotovina and Markac Defence to see whether they can have any contact with

13     their clients and to see whether their decision, because I understand

14     that's what it was, and their instructions are still standing.

15             I'm saying this because we have various interests at stake.  We

16     have, for example - and the Chamber can't ignore that - we have a witness

17     waiting to complete his evidence.  We have a general obligation to use

18     court time as good as we can.  It might well be that after this hour, the

19     Chamber says, No further hearings because we need our time to do other

20     things.  All options are open.  Nevertheless, I invite the Markac Defence

21     and the Gotovina Defence to seek the present view, also in view, perhaps,

22     of how the Chamber responded initially on the matter and the way in which

23     we proceeded.

24             I do not in any way anticipate, in this respect, on what the

25     Chamber's decision would be if the accused would oppose against further

Page 26032

 1     proceeding, even if that would result in a remaining inactive by counsel.

 2     What the procedural consequences of such a situation would be is to be

 3     considered by the Chamber.  And by inviting you to contact your clients,

 4     I do not in any way anticipate, either in one direction or in another

 5     direction, on what would follow.

 6             The very technical questions I would have are the following:  Two

 7     times, we find a reference to Rules 70(B) and Rule 70(F) of the Rules of

 8     Procedure and Evidence.  That is what we usually call the Rule 70

 9     information.  Now, the Chamber wonders whether the Gotovina Defence

10     offers to provide the Chamber with the names of potential witnesses, but

11     subject to the protections of Rule 70(B) and Rule 70(F).

12             Now, if I understand Rule 70(B) correctly, it says that

13     information provided for further investigative purposes, and not to be

14     used as evidence, should not be revealed.  It's totally unclear to me why

15     the Chamber, with these reservations, would receive names which I think,

16     as a matter of fact, if it's real Rule 70(B), then I take it it's about

17     the content of the statements, but then it -- it only mentions names, and

18     then to say, Well, these names -- well, for evidence, for evidentiary

19     purposes, they could not be used.  I mean, what should the Chamber then

20     possibly do with that?

21             MR. MISETIC:  Mr. President, as I said, upon reflection, perhaps

22     we should have invoked a different Rule.  But as I said last night, the

23     situation was fluid.  What we intended to indicate to the Chamber was

24     that we could provide -- in terms of telling the Chamber what our

25     good-faith basis is for making these allegations, we have individuals who

Page 26033

 1     have communicated this information to us.  To be perfectly frank, without

 2     trying to be argumentative with the Prosecution, these individuals have

 3     concerns about potential ramifications to them, personally, and in the

 4     ongoing context of the assessments of Croatia's co-operation with

 5     Mr. Brammertz in his office that Mr. Brammertz might make about

 6     disclosing that information to Mr. Brammertz, about who passed that

 7     information along.  What Rule and how we are to proceed obviously is a

 8     difficult situation, which I recognise, but I did not want the Chamber to

 9     think that we were making statements to the Chamber that we did not have

10     a good-faith basis to believe.  And we wanted to indicate generally who

11     these persons were so that the Chamber had specific names, if it wished

12     to obtain them, as to who it is that passed this information on to us.

13     And that was the intent.

14             JUDGE ORIE:  Yes.  The Chamber may be hesitant - but I still have

15     to discuss it with my colleagues - may be hesitant to receive names

16     knowing in advance that it would be exclusively in the hands of the

17     provider of the information on whether it could be used in evidence or

18     not, because names, as such -- but perhaps you would --- those names

19     might be related to positions, I don't know.

20             MR. MISETIC:  Correct.  Correct.  And if -- I should say perhaps

21     we should have also -- I believe I looked at Rule 69, which only

22     references the Prosecution; however, I don't know whether it would also

23     apply to the Defence, in terms of non-disclosure of the identity of a

24     victim or witness who may be in danger or at risk, until such person is

25     brought under the protection of the Tribunal.  That is Rule 69(A).  So --

Page 26034

 1     and then obviously Rule 75.  So I don't know what the issues would be,

 2     but these persons would be extremely reluctant to have their identities

 3     revealed in the political context that the parties find themselves in

 4     currently.

 5             Again, I just wish to reiterate, Mr. President, it's solely -- it

 6     was included by us because we understand that the allegations are

 7     serious, and we did not wish to fail to disclose to the Chamber the basis

 8     upon which the allegations were made.

 9             JUDGE ORIE:  Yes.  We will consider that matter as well.

10             MR. KUZMANOVIC:  Your Honour, I know you're going to take a

11     break.  Can we go into private session just for a moment, please.

12             JUDGE ORIE:  We'll go into private session for just a moment.

13                           [Private session]

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 26035

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10                           [Open session]

11             THE REGISTRAR:  We're back in open session, Your Honours.

12             JUDGE ORIE:  Thank you, Mr. Registrar.

13             We'll take a break.

14             At this moment, we anticipate that we would resume at resume at

15     5.00, but this not a guarantee.  But on from 5.00 the parties are

16     requested to remained standby.

17                           --- Recess taken at 3.56 p.m.

18                           --- On resuming at 5.27 p.m.

19             JUDGE ORIE:  I'm not going to apologise for the late start, but I

20     sympathise with all those that have been waiting.

21             We'll first move into private session.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

Page 26036











11  Pages 26036-26038 redacted. Private session.















Page 26039

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14                           [Open session]

15             THE REGISTRAR:  We're back in open session, Your Honours.

16             JUDGE ORIE:  Thank you, Mr. Registrar.

17             The first matter I would like to deal with is the time-limit for

18     a response.

19             Mr. Waespi, the Chamber has considered the potential seriousness

20     of the situation and the urgency of the situation, and orders the

21     Prosecution to file its response by tomorrow noon.  And this is a

22     decision under Rule 136 bis.

23             MR. WAESPI:  Thank you, Mr. President.

24             JUDGE ORIE:  And then the Chamber has spent most of the time on

25     the question how to proceed.  We'd first like to have at least one piece

Page 26040

 1     of information.

 2             In the motion, Mr. Misetic, it is explained that the matter in

 3     which the arrests and the searches and seizures were taken are not

 4     unrelated to the -- well, let's say the 54 bis or the -- do you have any

 5     further information?  Is there any description, as far as for the

 6     investigation of what offence committed, when, where?  Is it still the

 7     same issue, or is it a follow-up issue?  Could you give us any further

 8     factual information?

 9             MR. MISETIC:  I will first do it in public session, and then we

10     would need to move into private session, Mr. President.

11             JUDGE ORIE:  I leave it to you.  You know the answers.  You know

12     whether we need to go --

13             MR. MISETIC:  The public answer is that throughout the day

14     yesterday, and including today, from what I can see on the internet, the

15     Croatian government is saying that these actions are being done in close

16     coordination with Mr. Brammertz.  So to that extent, we're relying on

17     public-source information concerning the reason that these activities are

18     undertaken, and I simply do not see any reason to believe that the

19     activities are unrelated to the Trial Chamber's 16 September 2008 order,

20     and more specifically that these activities are in any way unrelated to

21     Mr. Brammertz, because the Croatian government, including the

22     prime minister yesterday, said publicly that she hopes, and I'm

23     paraphrasing here, but she hopes Mr. Brammertz is going to be satisfied

24     by what we've --

25             JUDGE ORIE:  That was not my question.  My question was primarily

Page 26041

 1     you could have said from the comments -- because I want to clearly

 2     separate two matters.  The one is the action taken by; and the second

 3     question is: Who triggered it?

 4             MR. MISETIC:  Okay.

 5             JUDGE ORIE:  And I asked, as a matter of fact, details about the

 6     action taken yesterday, and the response was for 75 per cent about

 7     coordination -- well, let's say triggering matters.  Do we have any clear

 8     information as this offence, committed on that day, consisting of burning

 9     documents, or --

10             MR. MISETIC:  No.  Mr. President, all I can say is people were --

11     except for Mr. Ivanovic, people were brought in, detained, the searches

12     were conducted, and then released.  So I can't say that there was a

13     specific crime, other than the general standard crime which is always

14     concealing and/or destroying archival documents, which is a legal

15     classification for it.  But there would be nothing in the warrants, as

16     far as I know, that would then explain that this is at the instigation of

17     the Office of the Prosecutor or the state prosecutor in Croatia,

18     et cetera.

19             JUDGE ORIE:  So as far as the legal basis for searches and

20     seizure are concerned, the most you can tell us, that it is under the

21     same heading as the previous prosecutorial and investigative activities

22     taken against Mr. Ivanovic?

23             MR. MISETIC:  Yes.  Amongst others, though, yes.  In other words,

24     the same classification given to Mr. Ivanovic has now been expanded to

25     include any number of individuals.

Page 26042

 1             JUDGE ORIE:  Yes.  But we are still talking about the same

 2     qualification of the -- as far as you're aware?

 3             MR. MISETIC:  Correct, as far as I'm aware.

 4             If we can -- I can then explain further, Your Honour, just what I

 5     understand to be happening in private session, if you wish.

 6             JUDGE ORIE:  Yes.

 7                           [Trial Chamber confers]

 8             JUDGE ORIE:  We turn into private session.

 9                           [Private session]

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 26043











11  Page 26043 redacted. Private session.















Page 26044

 1                           [Open session]

 2             THE REGISTRAR:  We're back in open session, Your Honours.

 3             JUDGE ORIE:  Thank you, Mr. Registrar.

 4             Mr. Waespi, I think we said that you would have to file your

 5     response, but I should first have asked whether your further consultation

 6     with Mr. Brammertz led to anything else than that he would insist on a

 7     written response rather than to express any willingness or unwillingness

 8     to appear in the session next week.

 9             MR. WAESPI:  Yes.  Mr. President, during the break I did have a

10     chance to consult with the Prosecutor, and wish to inform the

11     Trial Chamber of the OTP position at this time as it regards the Defence

12     motion, and also your remarks concerning the possibility of the

13     Prosecutor appearing on this matter at this time.

14             First, we consider that it is, at best, now premature to consider

15     whether the Prosecutor should appear in any capacity in respect to this

16     motion.  The Trial Chamber has before it at this time only the assertions

17     of Defence counsel, which are themselves based on unsubstantiated

18     allegations of anonymous witnesses which form the basis of the motion.

19             Before the Trial Chamber could begin to consider whether to

20     invite the Prosecutor to appear on such a matter, the Defence would have

21     to make a sufficient factual showing to justify the relief which it

22     seeks.  The Trial Chamber has no evidence before it at this time that

23     would justify consideration of the question whether the presence of the

24     Prosecutor is warranted.

25             As regards the allegations contained in paragraphs 2 and 3 of the

Page 26045

 1     motion, the Prosecutor denies the allegations of misconduct in their

 2     entirety.

 3             In order to assist the Trial Chamber in resolving the matter as

 4     quickly and efficiently as possible, of course, the Prosecutor will file,

 5     by noon tomorrow, a detailed written response to these allegations.  The

 6     Prosecutor's response will refer, for example, to information as

 7     reflected in the statement issued by the State Attorney's Office this

 8     afternoon, the state attorney of Croatia.

 9             JUDGE ORIE:  Mr. Waespi, if what you're saying is that we will

10     receive a detailed written response in which we find -- I think at this

11     moment the matter is so urgent that we'd rather not have a preview of

12     what will be received on paper anyhow tomorrow by noon.

13             MR. WAESPI:  That's fine.  You were asking about new

14     developments, and we thought it was important --

15             JUDGE ORIE:  If you say apart from what will be in there, I can

16     add one thing.  At the same time, I also stopped Mr. Misetic at a certain

17     moment in time, because I said that we would not hear certain matters,

18     that is, the link.  We are mainly interested in whether it was a new

19     issue or whether it was a continuation of an already assisting procedural

20     context.

21             MR. WAESPI:  Very well, Mr. President.

22             JUDGE ORIE:  If there is anything you would like to add in that

23     respect, we would be glad to hear from you.  If not, we will carefully

24     read the submissions on our own.

25             The Chamber has further considered whether it could issue the

Page 26046

 1     kind of orders sought, one subpoena to be issued, a subpoena duces tecum

 2     for Mr. Brammertz, but we meanwhile have a number of "cease and desist"

 3     orders as well.  The Chamber, in the previous decisions in the

 4     Rule 54 bis matter, has stated that in exceptional circumstances it would

 5     consider that it would be competent to issue such order so as not to

 6     exclude once and forever that it could.  That still is the position of

 7     the Chamber.

 8             At the same time, the Chamber thinks that it would be

 9     procedurally inappropriate to issue such heavy orders without even having

10     heard responses both, in this case, from the Prosecution and from the

11     Republic of Croatia.

12             As I said before, the matter is not only potentially very

13     serious, but also is very urgent.  The Chamber has used part of the time

14     available to explore the possibility to have a hearing tomorrow in the

15     afternoon, at 2.00, after having received the response by the

16     Prosecution, in which also the Republic of Croatia would appear.  That

17     hearing, if it will be scheduled -- and of course it takes quite some

18     efforts to see whether this is possible, but the first actions are

19     undertaken at this very moment.  Of course, the first thing the Chamber

20     would like to hear from the parties, whether they could be here.  I mean,

21     we had to check -- the Judges are there.

22             Mr. Misetic, of course, the Chamber had on its mind also your

23     intended trip to Zagreb, which we do not know exactly whether, under the

24     present circumstances -- you may not have been perfectly clear on this

25     matter, whether you had cancelled that or whether you would still be here

Page 26047

 1     in The Hague.

 2             MR. MISETIC:  Yes, I did, Mr. President.  It's impossible for me

 3     to be there by -- it was supposed scheduled for 8.15 tomorrow morning,

 4     and it's now impossible for me to be in Zagreb by then, so, yes, I've

 5     cancelled the trip, at some concern in light of what the consequences

 6     will be for that, but --

 7             JUDGE ORIE:  Yes, I mean, in some jurisdictions, if not in all,

 8     failing to appear as a witness is a matter which could be investigated,

 9     and the Chamber is fully aware of that.  But at this moment, I'm focusing

10     primarily on the practical side of a hearing tomorrow afternoon here in

11     The Hague.

12             Mr. Kehoe.

13             MR. KEHOE:  Mr. President, because of the scheduling that we had,

14     I have some other matter to take care of a personal nature.  I do think,

15     however, that Mr. Misetic can proceed in my absence.

16             JUDGE ORIE:  Yes.

17             MR. CAYLEY:  Your Honour --

18             JUDGE ORIE:  Misetic is lead counsel anyhow, so -- but you have

19     introduced the motions.  That's clear, Mr. Kehoe.

20             MR. MISETIC:  Mr. President, if I could just correct the record,

21     we're both lead counsel in the case, so --

22             JUDGE ORIE:  I'm sorry, I wasn't aware of that.  I should have

23     been, most likely.

24             MR. CAYLEY:  Your Honour, on the basis that there were no

25     hearings tomorrow, I've made personal arrangements.  I'm travelling to

Page 26048

 1     the United Kingdom tomorrow for personal reasons that I can't escape

 2     from, and unfortunately Mr. Kay and Ms. Higgins have gone home for the

 3     weekend.

 4             JUDGE ORIE:  Yes.  Could we hear your view on hearing this

 5     matter, which, of course, does not primarily focus on Mr. Cermak, in the

 6     absence of the Cermak Defence?

 7             MR. CAYLEY:  I would need to speak to my client about that, and

 8     also to Mr. Kay, before basically waiving --- Mr. Cermak waiving his

 9     right to be present during that.

10             JUDGE ORIE:  Well, Mr. Cermak does not have to waive his right to

11     be present.  I mean, he can be present, even if that would -- of course,

12     I can imagine that, as counsel, you would not be happy, Mr. Cermak to be

13     present unrepresented and without your assistance, your guidance.  But

14     that is a matter to be explored for you, I would say, and it is one of

15     the elements -- as I said before, we are exploring whether we can issue a

16     scheduling order tomorrow morning, and the Chamber would like to hear

17     from you as soon as possible.

18             MR. CAYLEY:  If I could take -- if the Court could take a break

19     and so at least I can speak to Mr. Cermak about this, because this is an

20     important personal matter, and otherwise, I'd cancel it, basically.  And

21     that's the problem I have.

22             JUDGE ORIE:  Yes.  Everyone will be convinced that the Chamber is

23     not seeking such hearings in order to find further amusement on Friday

24     afternoon, which was supposed to be free.  That is clear to everyone,

25     I think.

Page 26049

 1             You want to consult right away with Mr. Cermak, or how much time

 2     do you think you'll need?

 3             MR. CAYLEY:  Ten minutes.

 4                           [Trial Chamber and registrar confer]

 5             JUDGE ORIE:  I'll give you an opportunity, but not at this very

 6     moment, Mr. Cayley.  But within a couple of minutes.

 7             Markac Defence.

 8             MR. MIKULICIC:  Your Honour, we will have no problem to attend

 9     tomorrow.

10             JUDGE ORIE:  Thank you.

11             Prosecution.

12             MR. WAESPI:  No problem to attend.

13             JUDGE ORIE:  The main purpose of the hearing tomorrow will be to

14     hear views and submissions and positions in relation to a freezing order.

15     That's what the Chamber will address first, not to say that the other

16     orders as being sought would -- that we would not deal with them or that

17     we would exclude to issue whatever order.  But the main focus will be

18     primarily on whether a situation in which everything is frozen can be

19     achieved by whatever means.  That is the main purpose.

20             Of course, I can imagine that one says, Well, we'd rather have it

21     already there tomorrow morning at 4.00, but we also have to be practical.

22     The Chamber, as I said before, is not issuing orders before at least an

23     opportunity has been given to the parties to respond or to be heard; not

24     to say that if we couldn't hear the parties -- interested parties, that

25     we would, under all circumstances, refrain from issuing orders, but at

Page 26050

 1     least this is a procedural requirement the Chamber takes seriously at

 2     this moment.  From the fact that we deal with it tomorrow, it may be

 3     understood that the Chamber is fully aware of the urgency and the

 4     potential seriousness of the situation.

 5                           [Trial Chamber and registrar confer]

 6             JUDGE ORIE:  Since we will be focusing on the freezing of the

 7     situation, the Chamber would include in that any effect on the

 8     Markac Defence, because that was a matter of concern addressed.

 9             Mr. Mikulicic.

10             MR. MIKULICIC:  Your Honour, sorry to interfere, but there's a

11     practical problem we are facing, and this is the problem of a witness

12     waiting here.

13             JUDGE ORIE:  Yes, I was about to deal with that matter.

14                           [Trial Chamber confers]

15             JUDGE ORIE:  The Chamber has informed the parties on everything

16     it's wanted to inform the parties about.

17             We have one hour left today.  Anything to be raised which is of

18     such urgency that it should be done immediately?  Because I would then

19     move to our next subject; that is, the witness waiting.

20             Nothing.

21             Then we have one hour left, and the Chamber was informed that the

22     witness, also for urgent personal reasons, would have to return to

23     Croatia.  I do understand that a person had died, and that for that

24     reason he has to return.  Now, the cross-examination was scheduled for

25     one to two sessions.

Page 26051

 1             First of all, whether we can continue at all depends on -- well,

 2     the Chamber would like to hear whether the Gotovina Defence and the

 3     Markac Defence are still saying, We can't continue with hearing any

 4     evidence, even in the present situation.

 5             MR. MIKULICIC:  Your Honour, during the break I spoke with my

 6     client, and his position remains the same.  So we are not allowed to

 7     proceed with any evidence in his absence.

 8             JUDGE ORIE:  Yes.  Then, Mr. Misetic.

 9             MR. MISETIC:  Mr. President, I spoke with General Gotovina, who

10     expresses his gratitude for the manner in which the Chamber addressed the

11     issue.  He supports General Markac's position, in that General Markac

12     wishes to be present, and therefore would ask that Mr. Markac and he be

13     allowed to be present for actual witness testimony.  That's the message

14     he wished to convey.

15             On behalf of Mr. Kehoe and myself, we also wish to express our

16     own personal concern about proceeding in a situation where we still

17     essentially have the rights to the security of the attorney-client and

18     work relationship and work product.  And I understand the position that

19     the Chamber is in and that we're dealing with this tomorrow, but there's

20     still that uncertainty on our behalf, given that we don't know what

21     access, including access the Croatian authorities may currently have to

22     our communication capabilities at the moment.

23             JUDGE ORIE:  Would it be any different if you would hear some of

24     the evidence to be given in cross-examination by the witness who's

25     waiting and who wants to attend a funeral next week?  That's my question

Page 26052

 1     to you.  If that would significantly change, we would like to hear.

 2             MR. MISETIC:  Your Honour, all I can say is we sympathise with

 3     the witness and the position the Chamber is in.  I also trust that the

 4     Chamber understands, from a legal perspective, the position that we're

 5     in.  And so I guess we'll leave it in the Chamber's hands, then, how to

 6     proceed.

 7                           [Trial Chamber confers]

 8             JUDGE ORIE:  The Chamber has considered the reasons for the

 9     absence of the two accused.  The Chamber has considered the situation in

10     which the witness finds himself at this moment.  The Chamber has decided

11     that we'll start the cross-examination of the witness, because that's

12     what we're about to hear, and then to see -- to ask you, Mr. Waespi, to

13     focus on core matters primarily and see what you could achieve in

14     cross-examination in the next 55 minutes.

15             I know that it's -- the Chamber will consider any further

16     requests for recalling the witness, who has to leave.  And meanwhile the

17     Chamber offers to the accused that they'll be provided with a video of

18     this afternoon's session, including the cross-examination of the witness.

19             Could the witness be escorted into the courtroom.

20             Mr. Cayley, I do not know how urgent the cross-examination of

21     this witness is for you.  The Chamber would not mind if you would feel

22     that it could be justified to leave the courtroom just briefly and

23     consult with your client.

24             MR. CAYLEY:  We don't have any questions for this witness,

25     Your Honour, so I think that would be perfectly acceptable.

Page 26053

 1             JUDGE ORIE:  Yes.  Then if it can be arranged that -- if it can

 2     be arranged that you meet with Mr. Cermak at this moment, then everyone

 3     who has to assist in that is invited to do so.

 4                           [The witness takes the stand]

 5             MR. CAYLEY:  Thank you, Mr. President.

 6                           WITNESS:  DRAZEN VITEZ [Resumed]

 7                           [The witness answered through interpreter]

 8             JUDGE ORIE:  Good afternoon, Mr. Vitez.

 9             The Chamber regrets that you had to wait for such a long time.

10     The Chamber is informed about your personal circumstances and is seeking

11     to achieve that we could finish your cross-examination.  You would

12     certainly help by giving short and focused answers.

13             And I would like to remind you that you're still bound by the

14     solemn declaration that you've given at the beginning of your testimony.

15             Mr. Waespi will now cross-examine you.  Mr. Waespi is counsel for

16     the Prosecution.

17             Mr. Waespi, please proceed.

18             MR. WAESPI:  Thank you, Mr. President.

19                           Cross-examination by Mr. Waespi: [Continued]

20        Q.   Good evening, Mr. Vitez.

21             Let me go into the issue of Gracac with you.

22             In your witness statement, at paragraph 4, you say that you

23     arrived at about 1200 hours to the entrance of Gracac, and we know from

24     your testimony yesterday that was in the Stikada area in Gracac.  So that

25     was on the 5th of August that you arrived with your units in Gracac; is

Page 26054

 1     that correct?

 2        A.   Yes, that's correct.

 3        Q.   Now, where did your unit exactly go on the 5th of August?

 4             And perhaps we could have D433, a map.

 5             Did your unit go into Gracac, itself, or stay in Stikada all the

 6     time on the 5th of August?

 7        A.   During the course of that day on the 5th of August, my unit did

 8     not enter Gracac.  We stayed in the territory of Stikada, and all that

 9     time we were by the Lake Jezero.

10        Q.   If you look at the screen in front of you, you can see a map.

11     Number 5 depicts Gracac; and number 7, the Stikada area.  And we also see

12     a lake there.  Is that the lake?

13        A.   Yes.  Yes, next to number 7.

14        Q.   And you continue in your witness statement that you said you

15     stayed there until the following day:

16             "On 6th August, we stayed in the area, resting and preparing for

17     further activities."

18             Now, did your unit stay together on the 6th of August by the

19     lake?

20        A.   All that time, the entire unit -- the complete unit was by the

21     lake.

22        Q.   Now, yesterday you mentioned that you were in Loncari.  We tried

23     to find Loncari in this area, but couldn't find it.  Can you tell us, on

24     the map in front of you, where Loncari is.

25             And perhaps with the help of the usher, you could mark "Loncari."

Page 26055

 1        A.   I believe that it was a hamlet just by the lake, on the

 2     lakeshores.

 3        Q.   So that would be near the location called Stikada.

 4        A.   That's correct, yes.

 5        Q.   Thank you.  I think that's sufficient.

 6             Now, during your stay in Gracac, your policemen were pretty

 7     relaxed after you were entering Gracac; is that correct?

 8             MR. KUZMANOVIC:  Let's get specific here.  He said "Stikada," not

 9     "Gracac."

10             MR. WAESPI:  I apologise.  "Stikada" is fine.

11        Q.   Your unit -- your policemen were pretty relaxed when you were

12     resting in Stikada; is that correct?

13        A.   Well, one couldn't really say that they were relaxed.  We could

14     tend to the basic hygiene needs at the lake, and we were on standby all

15     the time because we didn't know when and from where the enemy could turn

16     up.

17        Q.   But you were swimming in the lake?

18             MR. WAESPI:  It's no longer needed, Mr. Usher.  I think we have a

19     good idea where Loncari is.

20             THE WITNESS: [Interpretation] Well, you see, we did have a swim,

21     but it was not really long swimming for two hours.  Individuals would

22     enter the lake, stay a couple of minutes to have a wash, basically, more

23     than anything else, and then got out and continued being in full combat

24     gear.

25        Q.   Yes.  Let's return to P1237.  That's the report about the

Page 26056

 1     Varazdin -- the Varazdin unit activities we have looked at yesterday,

 2     which was authored by your commander.  And it's English page 3 -- I

 3     apologise, English page 2.  And in B/C/S, it's page 16, the actual

 4     page 16 numbered on top of the page, which is, I think, about the third

 5     page.

 6             And there, it's stated, in the middle of page 2, English:

 7             "We used the break to bathe in the nearby lake which we had been

 8     looking at from the tops of Mount Velebit for almost three years."

 9             That's an accurate description of what the policemen were doing

10     and their state of mind?

11        A.   Yes.  I've already told you that each of us had 10 to 15 minutes

12     to take a bath, and get out and continued doing whatever they were

13     supposed to do; put on their combat gear, check their personal equipment,

14     and be prepared, be at the ready.

15        Q.   Now, I understand that on the 7th of August, your unit was

16     ordered to leave the Stikada area again and proceed to Bruvno.  Who

17     ordered you to leave?

18        A.   The command or the order was received by my unit commander, and

19     he had received it from our force's Main Staff.

20        Q.   And when, exactly, did you leave?

21        A.   In the morning hours, on the 7th, sometime in the morning.

22        Q.   Now yesterday you told the Trial Chamber that on the 7th of

23     August, when you were moving from Stikada towards Bruvno, and I quote you

24     on page 25989:

25             "What I can remember is damage.  I saw several buildings that

Page 26057

 1     were destroyed, but as far as I remember they had been destroyed a long

 2     time previously.  There had been vegetation growing out of the ruins.  I

 3     don't remember any other damage."

 4             Now, were you aware that there were international observers in

 5     Gracac?

 6        A.   Well, as for them being in Gracac, I don't know.  I didn't see

 7     them.  But we knew that there were a lot of international troops

 8     throughout the entire area where we were deployed.

 9        Q.   Now, when you moved, on the 7th, from Stikada to Bruvno, did you

10     go through Gracac?

11        A.   No.

12        Q.   So where did you go in relation to Gracac?

13             MR. WAESPI:  If we can look at D433.  Perhaps that could be

14     called back, please.

15        Q.   So did you circumvent Gracac, then, or did you return back?

16             Let me remind you number 5 is Gracac, number 7 is where you were,

17     and obviously Bruvno would be to the north-east or upper left on this

18     map.

19             Can you tell me - and perhaps this time we would need Mr. Usher's

20     assistance - the path you took?  We can make it -- if you're happy with

21     it, then it's fine.  We could make it larger, if you want.

22        A.   Yes, this is okay.  Thank you.

23             We went to the right from Stikada.  That's the route we took.

24        Q.   Yes.  I'm not sure whether you used actually the pencil.  You

25     need to touch the surface to make a marking.

Page 26058

 1        A.   We had been billeted here [marks], and then we took a bypass

 2     around Gracac and took this route towards Bruvno [indicates].

 3        Q.   Thank you very much, Witness.  I think that's fine for the time

 4     being.

 5             If this could be tendered into evidence, Mr. President.

 6             JUDGE ORIE:  Well, I'm addressing those Defence counsel who think

 7     they could express themselves on objections.

 8             Mr. Cayley, because you seem to be the only one who's instructed

 9     to --

10             MR. CAYLEY:  I have no objection, Your Honour.

11             JUDGE ORIE:  Mr. Kuzmanovic, you're on your feet.

12             MR. KUZMANOVIC:  I don't think that necessarily shows the way,

13     because he says he wanted to bypass, and that looks like it's going right

14     through the city.  So --

15             JUDGE ORIE:  Well, then let's ask the witness.

16             When you said, We took a bypass, on this map, as far as I can

17     see, you drew a line which goes a bit south of the town, itself, and then

18     east from town to go to the north again.  Now, is that what you intended

19     to depict on this map?

20             Mr. Waespi, we have other maps of Gracac which would have worked

21     better, but that explains further that marking.

22             MR. WAESPI:  Yes, Mr. President.

23             THE WITNESS: [Interpretation] That's it.  That's it, that's

24     exactly what I meant to indicate.

25             MR. WAESPI:  Great.  We would have a better one, P536.  But if

Page 26059

 1     the witness is fine, an experienced policeman, with his markings --

 2             JUDGE ORIE:  Well, did you follow -- if you say you took a

 3     bypass, was that a road which bypasses Gracac, down, a little bit under

 4     it, and then going up north again?  Is that what it was?

 5             THE WITNESS: [Interpretation] Yes, that's right.  We turned left

 6     here.  There was a factory here, a huge silo, and then left up, whereas

 7     if we had taken a right turn we would have driven straight into Gracac.

 8             JUDGE ORIE:  Mr. Waespi, please proceed.

 9             MR. WAESPI:  Yes, thank you.

10             If it could be marked, Mr. President.

11             JUDGE ORIE:  I haven't heard from any of the other Defence teams.

12             Mr. Registrar.

13             THE REGISTRAR:  Your Honours, this document becomes

14     Exhibit P2696.  Thank you.

15             JUDGE ORIE:  P2696, a marked map, is admitted into evidence.

16             Please proceed.

17             MR. WAESPI:  Thank you, Mr. President.

18        Q.   Now, Mr. Vitez, there is evidence in this case that on the 7th of

19     August, in Gracac, in the centre, the house of the UNMOs was set on fire.

20     And there is also evidence that on the 6th of August, the residence of

21     the UNMOs was on fire.  And the residency of the of the UNMOs was about

22     1 kilometre east of the centre.

23             Now, let's have a look at the photograph of the burning of the

24     UNMO residence.

25             And, Mr. President, this is P522.

Page 26060

 1             And you told us yesterday that, you know, you haven't seen any

 2     fresh damage, and perhaps you might have seen that by passing through or

 3     from a distance.  Just tell us what you know.

 4             P522, that's the burning of the residence of the UNMOs.  Do you

 5     have any knowledge about that?

 6        A.   No, none.

 7        Q.   Now, there is also evidence, and if we go to P525, that other

 8     houses were burning on the 6th of August, when you were at times, I

 9     understand, swimming in the lake, on the road Gracac-Stikada, with a

10     visible plume of smoke.  So that's the road Gracac-Stikada.  Did you, did

11     your reconnaissance group, did anybody from your policemen, observe this

12     house burning, this plume of smoke?

13        A.   No.

14        Q.   If we can go to the next example, P526, again a burning house

15     observed on the 6th of August.  And this one is slightly more south of

16     Gracac, and I'll show the location in a second.

17             Do you remember having seen this house or the smoke?

18        A.   No, I didn't see this house.

19        Q.   Perhaps we can go to the map, which is P536.  That's a larger map

20     of Gracac, and you'll see the location of this house in -- if you focus

21     on the center, the word "Gracac."  You go about a hand into the direction

22     of 7.00 on the clock, and you see the word "Gacese."  Do you see that?

23        A.   Yes.

24        Q.   That's the location of this house, and I think your units were on

25     the left of this map, in those areas where the lake was.  So, again,

Page 26061

 1     nobody from your police unit, no sentries, no members swimming, nobody

 2     saw smoke coming off these houses?

 3        A.   No.

 4        Q.   Thank you, Witness.

 5             Just briefly on these combat check-points, "BPP" in your

 6     language, can you tell us who manned these combat check-points?

 7        A.   Well, there were members of the Varazdin Special Police Unit

 8     there, normally between three and four policemen, depending on the

 9     commander's assessment, what the required manning levels were.  They had

10     short and long barrels.  Those closer to the road also had anti-armour

11     weapons.

12        Q.   And they were focusing apparently on -- primarily on the roads.

13     That's where you, I take it, anticipated some tank approaching.  Is that

14     correct?

15        A.   There were some check-points that were close to the road.

16     Nevertheless, we had descended from Velebit, and there was a bit of

17     forest near the lake, so there was some check-points inside the forest.

18     We didn't know exactly where the enemy was, and we found it rather

19     strange that there was no one around in that area.

20        Q.   And the check-points would be operational located there as long

21     as the Special Police units were there; is that correct?

22        A.   Yes, that's right.

23        Q.   Thank you.  Now, you also told us that on the 7th of August, you

24     were moving on the road from the Gracac area to Bruvno and Lapac, and

25     that, I understand, at least in relation to Mazin, which is north of

Page 26062

 1     Bruvno, you did not use the asphalt road.  Is that correct?

 2        A.   Well, yes.  As far as I remember, a segment of the route was an

 3     asphalt road, but we left all of our vehicles at a plateau in Kriste

 4     [phoen] and then continued to walk toward the hills.

 5        Q.   But I understand that there was at least one vehicle that

 6     followed you on the asphalt road.  Is that correct?

 7        A.   Yes.  There was an APC that we had with us as support.

 8        Q.   Now, we had a witness here testifying that there was a large

 9     amount of houses along the road between Gracac and Donji Lapac burnt down

10     or destroyed, and you saw members of the Special Police present in the

11     area while the dwellings were still ablaze.

12             And, Mr. President, that's Witness 82, statement P2359.

13             Now, do you have any personal knowledge of that damage, or did

14     you get reports from reconnaissance groups, or perhaps from the members

15     of this APC who was travelling at least part of that road?

16        A.   No.  I didn't see anything, myself, and we got no reports from

17     our reconnaissance groups.  When we travelled through that village,

18     everything seemed fine, and there were no fires there.

19        Q.   Let's move to Donji Lapac.  In your witness statement, in

20     paragraph 5 and 6, you describe reaching Donji Lapac at around 1.00.

21     Now, did your whole unit of, I think, approximately 120 to 140 people

22     enter Donji Lapac at that time, around 1.00?

23        A.   Yes.

24        Q.   Now, your live testimony about your stay in Donji Lapac, how long

25     you stayed there, is not very detailed, so let me have a look at

Page 26063

 1     paragraph 7 of your witness statement, which is D1893.  And you said --

 2     as a starting point, you say here that:

 3             "We stayed in the area of Donji Lapac until after noon, when the

 4     Croatian Army entered."

 5             Now, did you personally see the Croatian Army entering into

 6     Donji Lapac?

 7        A.   Yes, I did.

 8        Q.   And did you get in touch with them?

 9        A.   No.

10        Q.   Did somebody else from your unit get in touch with them?

11        A.   Not as far as I remember.

12        Q.   Let's go to your commander's report, P1237.  In English, it's on

13     page 3, and in Croatian, it's, I think, the third electronic page, which

14     is real page 16.

15             In English, it reads as follows, the second paragraph on page 3:

16             "The Special Police forces entered Donji Lapac at 2.00, where

17     they immediately got in touch with the UNCRO."

18             And you talked about that in your testimony.  And then, the next

19     paragraph, last sentence:

20             "At 1930 hours on the said day, the HV 118th Home Guard Regiment

21     Brigade arrived from the direction of Udbine, and we established

22     contact."

23             Perhaps for the benefit of the witness, if we could go in

24     Croatian to, I think, the third electronic page.  Yes, that's 16.

25             At half past 7.00, met 118th Home Guard Regiment Brigade, and "we

Page 26064

 1     established contact with them."  That's what your commander wrote in this

 2     report.

 3             You were not aware of that?

 4        A.   No.  When they approached, I had to re-deploy our own unit and

 5     move them further towards the edges, and then we set up combat

 6     check-points.  I only spotted them when they were at a distance of about

 7     500 metres from Donji Lapac.  At this point in time, we weren't even sure

 8     whether those were our soldiers or not.

 9        Q.   But you accept that apparently your commander has gotten in touch

10     with them?

11        A.   It's possible.  I didn't see that happen, myself.  He may have

12     seen them, but we had no point of contact with them or, indeed, any

13     obligation to get in touch.  If there were any further contacts with

14     them, I'm sure it was something that people from our own staff were in

15     charge of.

16        Q.   Why do you say it's possible if it's written here?  It's a fact

17     that your commander established contact with them.  Are you denying --

18        A.   I don't know.  As I said, I didn't see it, myself, sir.

19        Q.   Incidentally, if you know, when was this report, drafted by your

20     commander, drafted?

21        A.   This was drafted following Operation Storm, some days after.  I

22     can't say exactly how many.  Maybe a week or two later, when the

23     Special Police Sector requested that we submit our report.

24        Q.   And were you involved in drafting, were you requested input, or

25     was it the commander, himself, who did it, perhaps with the help of

Page 26065

 1     others?

 2        A.   He did it with someone else's assistance.  I wasn't there when

 3     the report was drafted.

 4        Q.   And do you know who else assisted him, your commander?

 5        A.   I don't know.  I left.  I was on leave.

 6        Q.   Now, let's move on to what happened afterwards.  And you just, in

 7     response to my question, again said that you moved on with at least part

 8     of your unit.  And in your witness statement, again in paragraph 7, the

 9     very end of your statement, you say that:

10             "Afterwards, we took our unit from Donji Lapac to a nearby town,

11     where we spent a night."

12             Which one was this nearby town?  What's the name of it?

13        A.   It was on the -- it was a fringe area of Lapac, itself.  It was a

14     hamlet belonging to Donji Lapac.  I can't remember the name of the

15     hamlet.  We had the forest to our left, and the rest I cannot remember.

16        Q.   I don't know what the Croatian original says, but "town" is

17     completely different to a hamlet for me.  I've been looking for this

18     nearby town to Donji Lapac.

19             Can we actually have a look at D1893, paragraph 7.

20             In kilometres or metres, how far away from the center of

21     Donji Lapac was this hamlet?

22        A.   It's difficult to say, but about a kilometre from the center of

23     Donji Lapac.  It was, however, part of Donji Lapac, a street further out,

24     something like that.  It was part of Donji Lapac, anyway.

25             JUDGE ORIE:  Mr. Waespi, about the town, isn't that location in

Page 26066

 1     the statement?

 2             MR. WAESPI:  That might be one of the changes from my early

 3     version.  Nearby location, yes, Mr. President.  Thank you.

 4        Q.   Now, while you were at that hamlet outside Donji Lapac, did you

 5     realise, during the night hours, what was happening in -- or did you

 6     observe what was happening in Donji Lapac, itself?  Do you have any

 7     knowledge of activities in Donji Lapac?

 8        A.   I don't have any knowledge of the activities there.  I know what

 9     we were ordered by our commander.  We were to prepare and then press on

10     the next morning.  As for what was going on in Lapac, based on what we

11     could hear, there was a lot of firing going on.

12        Q.   Thank you.  Now, you say:

13             "On 8th of August, we handed our position over to the Croatian

14     Army and returned to our base in Varazdin."

15             Yes, that appears also in the current translation.

16             Now, to whom did you turn over your positions?  Do you know the

17     name of the unit, or perhaps the commander?

18        A.   No.  I don't know.  I don't remember the commander's name.  The

19     unit was deployed on a reserve attack position, but it was never used.

20     We were leaving the area, and I think there was a home guard regiment of

21     some kind; the 118th, I think.

22        Q.   Thank you.  Let's turn to an issue you discussed in your live

23     testimony, which wasn't discussed in your witness statement.  This is the

24     discipline and role of inner control unit.  Yesterday, you gave a fairly

25     lengthy answer about the role of inner control and, at the end, said

Page 26067

 1     that:

 2             "Inner control," and I quote you, "branch have nothing to do with

 3     disciplinary issues."

 4             That's at page 25982 of the transcript.

 5             If we could pull up Exhibit D529, please.

 6             Now, the document I'd like to show to you is an annual report of

 7     the Special Police Inner Control from 1995, addressed to General Markac,

 8     and there it discusses -- English page 2, and this is paragraph 4; and in

 9     Croatian, it's page 1.

10             As one of the tasks carried out by inner control, and I quote the

11     top of the English page:

12             "Continuous monitoring of the work discipline, interpersonal

13     relations, relations between the officers and the command structure, and

14     pointing out the existing problems to the Special Police officers."

15             And if we move on to page 3 of the English, at the bottom of the

16     page, it's paragraph 4; and in Croatian, it would be page 3, also

17     paragraph 4, the second sentence says as follows:

18             "The section pointed out the work shortcomings, interpersonal

19     relations, and discipline problems ..."

20             And then if we continue in English to the next page - the

21     Croatian is fine - we see under letter F:  "Discipline in the SJP."

22             Now, it appears from these documents that the inner control unit

23     indeed played a role in relation to discipline.  Do you agree with me?

24        A.   The internal control of the Special Police Sector connected to my

25     unit and other units had this row, and our only obligation towards them

Page 26068

 1     was the following:  The commander drafted monthly reports, and in those

 2     he listed what had been done, what curricula parts were dealt with, what

 3     specialties were practiced.  And finally there was a question as to

 4     whether that past month somebody had committed a breach of discipline.

 5     That was our only obligation, to inform them whether that transpired or

 6     not.  And if it did, name the person who did it.  That was only for

 7     statistical purposes.

 8        Q.   Yes, I accept your answer.  But my focus was more on the inner

 9     control unit of the Special Police, that one of their taskings was,

10     indeed, discipline.  Do you agree with that, after having seen this

11     document?

12        A.   If they had information about a problem, they would indicate that

13     to us, but it happened rarely.  Rarely did they warn us about some

14     breaches of discipline.  The commander was the one who looked after

15     disciplinary matters in the unit.

16        Q.   And who was the commander?

17        A.   You mean the commander of my Special Police unit?

18        Q.   I mean the commander you referred to in the last sentence of your

19     answer.

20        A.   The commander of my unit, Mr. Ivica Mindek.

21        Q.   Thank you.  Let me move quickly through a few other areas, and

22     I'm sure we can finish in time.

23             You told us yesterday, and it's also mentioned in your witness

24     statement, that you received instructions on how to treat civilian

25     population and property, and you had received these instructions prior to

Page 26069

 1     Operation Storm.  Now, I understand that these instructions were given by

 2     General Markac during the meeting of 3rd August in Stari Grad.  Is that

 3     correct?

 4        A.   Correct.

 5        Q.   Now, who was present?  You told us yesterday it was the

 6     commanders of units.  Was your commander present as well, or just you, as

 7     the assistant commander?

 8        A.   I was there together with my commander.

 9        Q.   And the other assistant, Mr. Hovinek [phoen], was also present?

10        A.   No, I don't think so.

11        Q.   Was the head of inner control, Mr. Soljic, also present?

12        A.   Yes, Mr. Soljic was there.

13        Q.   And Mr. Soljic is also the person who interviewed you in relation

14     to these events; is that correct?

15        A.   Yes, correct.

16        Q.   How did he conduct the interview?  Were you given written

17     questions, or did he give you a question and then you answered, and he

18     was using a note pad, or can you briefly tell us how the interview was

19     conducted, also keeping in mind that Mr. Djurica Franjo was there as

20     well?

21        A.   We sat down.  They asked me if I could remember, from the

22     beginning to the end, what happened during Operation Storm.  I was

23     telling them what I remembered, and they listened to me.  And there was a

24     lady who took notes.

25        Q.   Do you remember the -- yes, I believe her name is listed here.

Page 26070

 1             Now, was there sometimes a moment that you couldn't remember, and

 2     Mr. Soljic reminded you of something he was also aware of because he was

 3     also present, for instance, at that 3rd August meeting?  Did that happen,

 4     or did that not happen?

 5        A.   No, I was the only one talking, and as a result we had to correct

 6     that one mistake.  I was wrong about that date, and we had to correct it.

 7        Q.   Yes.  You weren't the only one talking; you were the only one

 8     answering.  Mr. Soljic was asking the questions, of course, orally, I

 9     take it.

10        A.   No, there were no questions.  Nobody asked me anything.  I told

11     them what I remembered about what had happened before Operation Storm,

12     during the Operation Storm.

13        Q.   But there has got to be -- you're a policeman.  There has got to

14     be some guidance, you know, Tell us, you know, when you went with your

15     unit to the Zadar-Knin Administration on the 23rd of July.  I don't

16     imagine that, you know, you were sitting there and talking all the time,

17     and the two interviewers were totally silent.  Are you saying they didn't

18     say a word?

19        A.   No, no, I'm not saying that they didn't say a word.  What I'm

20     saying is they didn't put questions to me.  They didn't tell me what to

21     tell them.

22        Q.   Very well.  Let me just address another substantive issue.

23             In paragraph 3 of your witness statement, you say that, and I

24     quote you:

25             "If civilians are spotted in the area, we should report to the

Page 26071

 1     Special Police headquarter, who were supposed to organise a shelter with

 2     the regular police."

 3             Now, did you, in fact, spot civilians in the area and co-operate

 4     with the Special Police headquarter, who in turn, then, apparently

 5     contacted the regular police?  Do you remember an example of this

 6     instance?

 7        A.   In this part of our march from Mount Velebit to Gracac, we did

 8     not notice any civilians.  We didn't encounter anybody.  However, as I

 9     told you yesterday, the first time I saw civilians together with most of

10     my men was in the village of Mazin.

11        Q.   And what did you to with these civilians?

12        A.   The civilians?  They were told to stay in front of their houses

13     and wait there.  They were told that the regular police would come and

14     pick them up.

15             MR. WAESPI:  Thank you.  I appreciate your answers.

16             I have no further questions, Mr. President.

17             JUDGE ORIE:  Thank you, Mr. Waespi.

18             An opportunity is given to the Defence of each team to put

19     further questions to the witness.

20             I see that this opportunity is not used by any.  From Mr. Cayley,

21     we know that he had no questions.  If the other parties would want to put

22     anything on the record in this respect, then it can be briefly done.  If

23     not, I just establish that no one -- no party uses this opportunity.

24             MR. KUZMANOVIC:  Under the circumstances, Your Honour, we are not

25     putting any questions to this witness.

Page 26072

 1             JUDGE ORIE:  Yes.

 2             This means, Mr. Vitez, that since the Bench has no further

 3     questions for you, that this concludes your testimony in this court.

 4             The Chamber sympathises with you as far as the reasons are

 5     concerned why it's important for you to travel back as soon as possible.

 6     We'd like to thank you very much for coming to The Hague and for having

 7     answered the questions that were put to you by the parties and by the

 8     Bench, and we wish you a safe a trip home again and strength for the days

 9     to come.

10             Madam Usher, could you escort the witness out of the courtroom.

11             THE WITNESS: [Interpretation] Thank you very much, Your Honour.

12                           [The witness withdrew]

13             JUDGE ORIE:  A few matters.

14             First, Mr. Cayley, could you inform us about the result of your

15     consultation with your client about tomorrow?

16             MR. CAYLEY:  Yes, Your Honour.

17             I've discussed the matter with my client, and he is happy to

18     proceed tomorrow, attend court, in the absence of legal representation,

19     although we will send a member of staff from our office to be here.

20             JUDGE ORIE:  Yes.  Apart from the -- I do know that it's an

21     unexpected situation.  Would you appreciate to have any audio or

22     video-recording under these very special circumstances?  Because this is

23     not a standing offer that -- if so, or you could also wait until you've

24     read the transcript and then see whether you would have any further

25     request.

Page 26073

 1             MR. CAYLEY:  Exactly, Your Honour, yes.  For our purposes, yes.

 2             JUDGE ORIE:  Then we leave it to that.

 3             I put on the record that when an opportunity was given to

 4     Mr. Cayley and Mr. Cermak to leave the courtroom for consultation, that

 5     they actually left for approximately 10 minutes, the courtroom, and then

 6     returned.

 7             Then I should put on the record that the Chamber authorises the

 8     Registrar to inform the Croatian government of a small portion of what

 9     has been said in private session.  It is one paragraph, and it appears on

10     my screen as page 34, line 8 to 18.

11             Any further matters to be raised at this very moment?  If not, we

12     adjourn, and we will resume most likely tomorrow in the afternoon of the

13     10th [sic] of December.

14                           [Trial Chamber and legal officer confer]

15             JUDGE ORIE:  We'll resume most likely tomorrow, the 10th [sic] of

16     December, at a quarter past --

17             MR. MISETIC:  It's the 11th tomorrow, Mr. President.

18             JUDGE ORIE:  Tomorrow is the 11th.  Then the rule that the

19     Registrar is infallible is confirmed by this exception.

20             The hearing tomorrow is scheduled at quarter past 2.00 in this

21     same Courtroom III.

22                           [Trial Chamber and registrar confer]

23             JUDGE ORIE:  I have to apologise to the Registrar, because he is

24     infallible, and there was no exception.  I made a clear mistake by

25     looking at the wrong note, which I'll try not to repeat.

Page 26074

 1             We'll resume most likely tomorrow, the 11th of December, at 2.00,

 2     not quarter past 2.00, in Courtroom III.  Whether or not we will have a

 3     hearing tomorrow will be decided by the Chamber finally tomorrow morning,

 4     and then a scheduling order will be issued.  If we would not sit

 5     tomorrow, then we would resume on Monday, the 14th of December, at 9.00

 6     in the morning, also in Courtroom III.

 7             We stand adjourned.

 8                           --- Whereupon the hearing adjourned at 7.01 p.m.,

 9                           to be reconvened on Friday, the 11th day of

10                           December, 2009, at 2.00 p.m.